State v. Liupaono ( 2010 )

NOT FOR PI»’BLIC,»\TI()N IN WEST'S H,AW’AI.‘I REPORTS AND PAC_IFIC RIZPORT_ER
sTATE oF HAWArI, P1ainriff~Appel1ee,
No. 30064
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v.
DUANE LIUPAONO, Defendant~Appellee,
and
ACE BAIL BONDS, Real Party in Interest/Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 99~2055)
ORDER DISMISSING APPEAL
FOR LACK OF APPELLATE JURISDICTION
(By: Nakamura, C.J., Foley and Leonard, JJ.)
Upon review of the record, it appears that we lack
jurisdiction over the appeal that Real~Party-in-Interest/
Appellant Ace Bail Bonds, L.L.C. (Appellant Ace Bail Bonds), has
asserted from the Honorable Richard K. Perkins' August l8, 2009
"Order Denying Ace Bail Bond's Motion to Reconsider Denial of
(the August l8, 2009 order
Motion to Set-Aside Bail Forfeiture"
denying Appellant Ace Bail Bonds's motion to reconsider denial of
motion to set aside bail forfeiture) because, under the
circumstances of this case, the August l8, 2009 order denying
Appellant Ace Bail Bonds's motion to reconsider denial of motion
to set aside bail forfeiture is not an appealable order under
Hawaii Revised Statutes (HRS) § 804-51 (Supp. 2008).
"The right to an appeal is strictly statutory." State
v. Ontiveros, 82 HaWaiU_446, 449, 923 P.2d 388, 391 (l996)
(citation omitted). "Any party deeming oneself aggrieved by the
NOT fF()R P'UBLICATION IN WES"I"S .H.AVVAI‘I REPORTS AND PACII+`IC _REP()RTER
judgment of a circuit court in a criminal matter, may appeal to
the intermediate appellate court, subject to chapter 602 in the
manner and within the time provided by the rules of the court."
HRS § 641-11 (Supp. 200B). However, it appears that HRS § 641~11
does not apply to this case, because a proceeding involving the
"forfeiture of a bond is a civil proceeding." State v. Camara
81 Hawafi 324, 329 n.7, 916 P.2d l225, 1230 n.7 (l996) (Citation
omitted). The supreme court has explained that the statute
authorizing an appeal from a bail bond forfeiture proceeding is
HRS § 804-51, and
the appealable event is the order denying the motion to set
aside the judgment of forfeiture.
Once a motion to set aside is denied, the surety may
appeal such denial "as in the case of a final judgment."
Pursuant to HawaFi Rules of Appellate Procedure (HRAP) Rule
4(a)(1), a notice of appeal from a final judgment must be
filed within thirty days from the date of entry of the
judgment - in this case, thirty days from the order denying
the motion to set aside.
State v. Camara 81 Hawafi at 329, 916 P.2d at 1230 (footnote
omitted). Thus, in the instant case, the August 18, 2009 order
denying Appellant Ace Bail Bonds's motion to reconsider denial of
motion to set aside bail forfeiture might appear to be an
appealable order pursuant to HRS § 804-51.
Nevertheless, it also appears that a prerequisite to a
motion to set aside a bail forfeiture is the entry of a judgment
on the bail forfeiture. "Whenever the court, in any criminal
cause, forfeits any bond or recognizance given in a criminal
cause, the court shall immediately enter up judgment in favor of
the State and against the principal or principals and surety or
sureties on the bond, jointly and severally, for the full amount
of the penalty thereof[.]" HRS § 804-51 (emphasis added). In
fact, the supreme court has expressly
_2_
NOT F()R PU BLICATI()N lN WES'I"S I“I¢XWAI‘I ,R}F,PORTS ANI) PAC.[FIC REI’()RTER
recognize{d] that HRS §§ B04~1, ~7.4{2), ~17, and ~51, .
read in pari materia, , . . mandate that, upon a defendant‘s
unexcused failure to appear for a court proceeding, (1} the
defendant's "default shall be entered," (2) the default
"shall be evidence of the breach of [an] appearance bond[},"
and (3} if the defendant's bail bond is forfeited, ";he
court shall immediatelv" enter a forfeiture judgment in
favor of the State and against the defendant and his or her
surety.
State v. Ranqer Insurance Company, 83 HawaFi 118, 122, 925 P.2d
288, 292 (1996) (citations omitted; emphases added). After a
court has filed a bail forfeiture judgment, then “before the
expiration of thirty days from the date that notice is given to
the surety or sureties on the bond of the entry of the judgment
in favor of the State," the "principal" may file "a motion or
application . . . showing good cause why execution should not
issue upon the judgment[.]" HRS § 804~51. However, the record
on appeal in this case does not contain a written judgment in
favor of Plaintiff-Appellee State of Hawaid.(the State) and
against Appellant Ace Bail Bonds on the forfeiture of Appellant
Ace Bail Bonds’ bail bond. Under analogous situations in civil
cases involving motions to set aside final orders or judgments,
Hawaid.courts have noted that "a motion for reconsideration
pursuant to HRCP Rule 60(b), is authorized only in situations
involving final judgments." Cho v. State, 115 Hawaid_373, 382,
168 P.3d 17, 26 (2007) (citations and internal quotation marks
omitted). Similarly, under HRS § 804-51, a motion to set aside a
bail forfeiture judgment is authorized only in situations when
the trial court has entered a bail forfeiture judgment. In fact,
we note that, although the August 18, 2009 order purports to deny
Appellant Ace Bail Bonds's motion to "reconsider" the denial of a
NOT FOR P`lFBIil`C/\'I`I()N IN W'EST'S HAWAI‘I REP()R'I`S AN]) PACII*`IC REI’()RT.ER
motion to set aside a bail forfeiture, the record on appeal
1 does not contain a bail forfeiture judgment,
» does not contain a motion to set aside a bail
forfeiture judgment, and
0 does not contain an order denying a motion to set
aside a bail forfeiture judgment.
Ace Bail Bdnds did not have the right to file a motion to
"reconsider" an order denying a motion to set aside a bail
forfeiture judgment where the existence of the underlying matters
has not been established. Therefore, the August 18, 2009 order
denying Appellant Ace Bail Bonds‘s motion to reconsider denial of
motion to set aside bail forfeiture has not been shown to be an
appealable order under HRS § 804-51.
Absent an appealable order or judgment, we lack
appellate jurisdiction.
Accordingly, IT 18 HEREBY ORDERED that appellate court
case number 30064 is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, HawaiUq January 6, 20lO.
Chief Judge
rac/r2 “
Associate Judge