State v. Bobroff ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
25-JUL-2022
08:23 AM
Dkt. 43 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
BRIAN BOBROFF, Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF THE FIFTH CIRCUIT
LÎHU#E DIVISION
(CASE NO. 5DCW-XX-XXXXXXX)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)
Self-represented Defendant-Appellant Brian Bobroff
(Bobroff) appeals from the District Court of the Fifth Circuit,
Lîhu#e Division's1 November 18, 2020 "Judgment Re: Bail/Bond
Forfeiture" (November 18, 2020 Judgment). This court, however,
lacks jurisdiction over this appeal.
The district court entered the November 18, 2020
Judgment in favor of the State and against Bobroff, forfeiting
Bobroff's bail for failure to appear. Six days later, on
November 24, 2020, Bobroff filed an "Affidavit of November 17th
2020," (Affidavit) which stated, "On November 17th 2020 I
attempted to schedule a flight the day before my arraignment
(11/18/2020), in the Fifth Circuit Court with Southwest
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The Honorable Michael K. Soong presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Airlines[,]" "an employee of Southwest who stated that I must
agree to wear a medical device over my nose and mouth as a
condition of flying[,]" and "I was prevented from attending my
arraignment because I refused to undertake a medical intervention
without informed consent and without the supervision of a
physician or judicial review."
On December 15, 2020, Bobroff filed a notice of appeal
from the November 18, 2020 Judgment.
On January 12, 2021, the district court entered the
Judgment/Order and Notice of Entry of Judgment/Order (January 12,
2021 Order) without the signature of a judge or court clerk. The
January 12, 2021 Court Minutes state, "No motion to set aside
bail forfeiture filed; the Court [] forfeited bail ($100.00
#500033506 posted by Self)[.]" Because the January 12, 2021
Order was unsigned, it had no effect, including its execution on
the November 18, 2020 Judgment and its determination that no
motion to set aside was filed.2
Hawaii Revised Statutes (HRS) § 804-51 (2014) provides,
in relevant part, as follows:
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
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Deutsche Bank Nat'l Trust Co. v. Greenspon, 143 Hawai #i 237, 247 &
n.27, 428 P.3d 749, 759 & n.27 (2018) (explaining that a file stamp signed by
the clerk is inadequate to fulfill the requirements of entry of a judgment or
appealable order); Rules of the District Courts of the State of Hawai #i
Rule 2(e) provides as follows:
Any order or judgement that is filed electronically bearing
a facsimile signature in lieu of an original signature of a
judge or clerk has the same force and effect as if the judge
or clerk had affixed the judge's or clerk's signature to a
paper copy of the order or judgment and it had been entered
on the docket in a conventional manner. For purposes of
this rule and any rules of court, the facsimile signature
may be either an image of a handwritten signature or the
software printed name of the judge preceded by /s/.
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on the bond, jointly and severally, for the full amount of
the penalty thereof, and shall cause execution to issue
thereon immediately after the expiration of thirty days from
the date that notice is given via personal service or
certified mail, return receipt requested, to the surety or
sureties on the bond, of the entry of the judgment in favor
of the State, unless 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, a motion or application of the principal or
principals, surety or sureties, or any of them, showing good
cause why execution should not issue upon the judgment, is
filed with the court. If the motion or application, after a
hearing held thereon, is sustained, the court shall vacate
the judgment of forfeiture and, if the principal surrenders
or is surrendered pursuant to section 804-14 or section
804-41, return the bond or recognizance to the principal or
surety, whoever shall have given it, less the amount of any
cost, as established at the hearing, incurred by the State
as a result of the nonappearance of the principal or other
event on the basis of which the court forfeited the bond or
recognizance. If the motion or application, after a hearing
held thereon, is overruled, execution shall forthwith issue
and shall not be stayed unless the order overruling the
motion or application is appealed from as in the case of a
final judgment.
(Emphases added.)
As the Hawai#i Supreme Court has before explained, a
condition precedent to appeal from a judgment of forfeiture is
the filing of a motion to set aside within thirty days from the
judgment showing good cause why execution should not issue upon
the judgment. State v. Camara, 81 Hawai#i 324, 329, 916 P.2d
1225, 1230 (1996). A defendant may attempt to show good cause by
"providing a satisfactory reason for his or her failure to appear
when required[.]" Id. at 330, 916 P.2d at 1231. Thus, "the
appealable event is the order denying the motion to set aside the
judgment of forfeiture." Id. at 329, 916 P.2d at 1230.
Here, the November 18, 2020 Judgment, which was a
judgment of forfeiture, was not appealable because it did not
grant or deny a motion to set aside the judgment of forfeiture.
Six days after the November 18, 2020 Judgment was entered,
Bobroff filed his Affidavit, which we construe as a "motion or
application of the principal . . . showing good cause" why the
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
judgment should not be executed under HRS § 804-51. See Erum v.
Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020)
(stating that to promote access to justice, pleadings prepared by
self-represented litigants should be interpreted liberally).
With the January 12, 2021 Order having no effect and the
Affidavit being undecided, the record does not indicate that the
district court concluded the proceedings below. See HRS § 804-
51.
Therefore, we dismiss this appeal for lack of appellate
jurisdiction.
DATED: Honolulu, Hawai#i, July 25, 2022.
/s/ Katherine G. Leonard
Presiding Judge
/s/ Keith K. Hiraoka
Associate Judge
/s/ Sonja M.P. McCullen
Associate Judge
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