State v. Grandinetti ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-APR-2021
09:16 AM
Dkt. 31 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
FRANCIS A. GRANDINETTI, also known as ALBERT FERNANDEZ,
also known as FRANK MYERS, also known as FRANK IRANDINE,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3PC930000141)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Upon review of the record, it appears that we lack
jurisdiction over the non-conforming notice of appeal by
Defendant-Appellant Francis A. Grandinetti (Grandinetti), self-
represented, electronically filed June 2, 2020, which apparently
is from a March 5, 2020 Recommendation and Order Appointing
Private Counsel Due to Conflict of Interest (Order Substituting
Counsel), by the Circuit Court of the Third Circuit (circuit
court), in Criminal Number 3PC930000141, because no statutory
authority authorizes the appeal.
"The right of appeal in a criminal case is purely
statutory[.]" State v. Nicol, 140 Hawai#i 482, 485, 403 P.3d
259, 262 (2017) (citation and internal quotation marks omitted).
In circuit court criminal cases, a defendant may appeal from a
judgment of conviction under Hawaii Revised Statutes (HRS)
§ 641-11 (2016), a certified interlocutory order under HRS § 641-
17 (2016), or "an interlocutory order denying a motion to dismiss
based on double jeopardy." State v. Kealaiki, 95 Hawai#i 309,
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
312, 22 P.3d 588, 591 (2001) (citation omitted). The post-
judgment Order Substituting Counsel does not appear to qualify as
an appealable, final order under any of these statutes. Further,
the substitution of counsel indicates the existence of an ongoing
proceeding, making the order interlocutory and, thus, not
independently appealable.1
Here, Grandinetti is not appealing directly from the
circuit court's 1993 judgment and conviction in the first
instance. Nevertheless, even if the Order Substituting Counsel
somehow qualified as an appealable final post-judgment order, the
appeal is untimely. Grandinetti did not file the notice of
appeal within thirty days after entry of the Order Substituting
Counsel, as Hawai#i Rules of Appellate Procedure (HRAP)
Rule 4(b)(1) requires. Therefore, we would lack appellate
jurisdiction to review the appeal because whether an appellant
"compli[es] with the requirement of the timely filing of a notice
of appeal, as set forth in HRAP Rule 4(b)(1), is jurisdictional."
State v. Bohannon, 102 Hawai#i 228, 234, 74 P.3d 980, 986 (2003)
(citations, internal quotation marks, and original brackets
omitted).
Therefore, IT IS HEREBY ORDERED that the appeal is
dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai#i, April 27, 2021.
/s/ Katherine G. Leonard
Presiding Judge
/s/ Keith K. Hiraoka
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
1
For example, the Hawai#i Supreme Court has held that an analogous
order granting a motion to disqualify counsel was not appealable under the
collateral order doctrine, because allowing the appeal would invite the delay
of piecemeal appeals. Chuck v. St. Paul Fire & Marine Ins. Co., 61 Haw. 552,
556-57, 606 P.2d 1320, 1323-24 (1980). Similarly, orders denying
disqualification of counsel are interlocutory and hence not appealable. Gomes
v. Heirs of Kauwe, 52 Haw. 126, 127, 472 P.2d 119, 120 (1970). Instead of an
interlocutory appeal, "a petition for a writ of mandamus and/or prohibition is
an appropriate vehicle for reviewing an order of disqualification." Straub
Clinic & Hospital v. Kochi, 81 Hawai#i 410, 414, 917 P.2d 1284, 1288 (1996)
(citation omitted). We apply the same rationale to an order appointing
substitute counsel.
2