State v. Michaeledes. ( 2023 )


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  • *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER ***
    Electronically Filed
    Supreme Court
    SCAP-XX-XXXXXXX
    03-MAR-2023
    08:13 AM
    Dkt. 7 OP
    IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
    ---o0o---
    STATE OF HAWAI‘I,
    Plaintiff-Appellee/Cross-Appellant,
    vs.
    DAVID JOHN MICHAELEDES,
    Defendant-Appellant/Cross-Appellee.
    SCAP-XX-XXXXXXX
    APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
    (CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX; CASE NO. 5CPC-XX-XXXXXXX)
    MARCH 3, 2023
    RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
    OPINION OF THE COURT BY RECKTENWALD, C.J.
    I.   INTRODUCTION
    David John Michaeledes was charged with several counts
    arising from an alleged hit and run.       The Circuit Court of the
    Fifth Circuit dismissed the charging document as insufficient.
    The State appealed to the Intermediate Court of Appeals (“ICA”)
    and simultaneously recharged Michaeledes via a second “Felony
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    Information and Non-Felony Complaint,” which attempted to
    correct the inadequacies in the first charging document
    identified by the circuit court.       The circuit court dismissed
    the second charging document for lack of jurisdiction while the
    first charging document remained pending on appeal before the
    ICA.   We hold that the filing of the notice of appeal in the
    first case did not divest the circuit court of jurisdiction over
    the second case recharging Michaeledes for the same criminal
    conduct.
    II.   BACKGROUND
    On December 28, 2020, Michaeledes was charged in Case
    No. 5CPC-XX-XXXXXXX via “Felony Information and Non-Felony
    Complaint” with three criminal counts for Reckless Driving of
    Vehicle, Hawai‘i Revised Statutes (“HRS”) § 291-2 (2020); Assault
    in the Second Degree, HRS § 707-711(1)(a) and/or (d) (2014); and
    Accidents Involving Substantial Bodily Injury, HRS § 291C-12.5
    (2020).    Michaeledes moved to dismiss the charges, arguing the
    charging language was fatally insufficient.       The State
    subsequently moved to amend its original “Felony Information and
    Non-Felony Complaint” and Michaeledes opposed that motion,
    arguing that a felony information may not be amended over a
    defendant’s objection under Hawaiʻi Rules of Penal Procedure
    2
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    (HRPP) Rule 7(f)(1) (2018) 1 and HRS § 806-9 (2014). 2          The circuit
    court agreed with Michaeledes and, on August 10, 2021, entered
    written orders denying the State leave to amend and granting
    Michaeledes’s motion to dismiss without prejudice. 3           On August
    17, 2021, the State appealed the circuit court’s August 10
    orders. 4
    Shortly thereafter, on August 31, 2021, the State
    recharged Michaeledes in Case No. 5CPC-XX-XXXXXXX by way of a
    second “Felony Information and Non-Felony Complaint,” this time
    alleging statutory definitions and elements omitted in the first
    “Felony Information and Non-Felony Complaint.”           The counts in
    1     HRPP Rule 7(f)(1) provides: “The court may permit a charge other
    than an indictment to be amended at any time before trial commences if
    substantial rights of the defendant are not prejudiced.”
    2     HRS § 806-9 provides:
    All provisions of law applying to prosecutions upon
    indictments, to writs and process therein, and the issuing
    and service thereof, to motions, pleadings, trials, and
    punishments, or the passing or execution of any sentence,
    and to all proceedings in cases of indictment, whether in
    the court of original or appellate jurisdiction, shall in
    the same manner and to the same extent as near as may be,
    apply to information and all prosecutions and proceedings
    thereon.
    3     The Honorable Randal G.B. Valenciano presided.
    4     In its appeal of the dismissal of the first “Felony Information
    and Non-Felony Complaint,” the State raises three arguments: (1) the Reckless
    Driving charge was not defective for failing to allege Michaeledes operated a
    vehicle on a public highway; (2) as a matter of law, a felony information may
    be amended to allege statutory definitions or essential elements; and (3) the
    circuit court abused its discretion by dismissing the case. This appeal,
    which arises from the first “Felony Information and Non-Felony Complaint,”
    was docketed as CAAP-XX-XXXXXXX. This appeal is not currently before this
    court, and therefore we do not address the merits.
    3
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    the first “Felony Information and Non-Felony Complaint”
    (hereinafter, the “first charging document”) are the same as
    those alleged in the second “Felony Information and Non-Felony
    Complaint” (hereinafter, the “second charging document”).
    Michaeledes moved to dismiss the second charging
    document for lack of jurisdiction under State v. Ontiveros, 82
    Hawai‘i 446, 
    923 P.2d 388
     (1996), since the appeal of the first
    charging document was pending before the ICA.           On September 20,
    2021, the circuit court agreed with Michaeledes and orally
    dismissed the second charging document, this time for lack of
    jurisdiction. 5   The State moved to reopen the hearing to clarify
    whether the dismissal was with or without prejudice.            On
    September 30, 2021, the circuit court held a hearing on the
    State’s Motion to Reopen Hearing at which Michaeledes was not
    present.
    On October 1, 2021, the circuit court entered a
    written order reopening the September 20, 2021 hearing on
    Michaeledes’s Motion to Dismiss for Lack of Jurisdiction and
    clarified that its dismissal of the second charging document was
    without prejudice. 6    On October 7, 2021, the circuit court then
    5     The Honorable Randal G.B. Valenciano presided.
    6     In its October 1 order, the circuit court explained it “intended
    that said dismissal would be WITHOUT prejudice” and “clarifie[d] that the
    Felony Information and Non-Felony Complaint filed in the above-captioned case
    is dismissed without prejudice.”
    (continued . . .)
    4
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    entered a written order dismissing the second charging document. 7
    Michaeledes appealed the October 1 order, arguing the complaint
    should be dismissed with prejudice.         The State appealed the
    October 7 order, arguing Ontiveros did not divest the circuit
    court of jurisdiction to proceed against Michaeledes on the
    second charging document.       The appeals of the October 1 and
    October 7 orders, both arising from the second charging
    document, were subsequently consolidated and are now before this
    court. 8
    III. STANDARDS OF REVIEW
    A.    Jurisdiction
    Whether the circuit court had jurisdiction is reviewed
    under the right/wrong standard.        Ontiveros, 82 Hawai‘i at 448,
    
    923 P.2d at 390
    .
    B.    Questions of Law
    “We review questions of law under the right/wrong
    standard.”    State v. Hernandez, 143 Hawai‘i 501, 507, 431 P.3d
    (continued . . .)
    7     In its October 7 order, the circuit court explained in a footnote
    that during the September 30 hearing, it had orally granted the Stateʻs
    Motion to Reopen Hearing and “clarified the order of dismissal was without
    prejudice.”
    8     Michaeledes’s appeal arising from the October 1 order was
    docketed as CAAP-XX-XXXXXXX. The State’s appeal arising from the October 7
    order was docketed as CAAP-XX-XXXXXXX. The consolidated appeals were
    docketed as CAAP-XX-XXXXXXX.
    5
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    1274, 1280 (2018) (citing State v. Gomez-Lobato, 130 Hawai‘i 465,
    469, 
    312 P.3d 897
    , 901 (2013)).
    C.   Interpretation of Court Rules
    “‘When interpreting rules promulgated by the court,
    principles of statutory construction apply.’”      State v.
    
    Thompson, 150
     Hawai‘i 262, 266, 
    500 P.3d 447
    , 451 (2021) (quoting
    State v. Baron, 80 Hawai‘i 107, 113, 
    905 P.2d 613
    , 619 (1995)).
    “The interpretation of a statute is a question of law which this
    court reviews de novo.”    
    Id.
     (citing State v. Ruggiero, 114
    Hawai‘i 227, 231, 
    160 P.3d 703
    , 707 (2007)).
    IV.   DISCUSSION
    In its appeal of the October 7 order, the State argues
    that the notice of appeal arising from the first charging
    document did not divest the circuit court of jurisdiction over
    the second case that was based on the second charging document.
    In his appeal of the October 1 order, Michaeledes
    argues: (1) the circuit court erred when it granted the State’s
    Motion to Reopen Hearing because the rule of lenity requires
    otherwise; (2) even if the circuit court could reopen the
    hearing, the circuit court failed to articulate its reasoning
    for dismissing the case without prejudice; and (3) the circuit
    court violated Michaeledes’s rights under HRPP Rule 43 (2018) by
    hearing and ruling on the State’s Motion to Reopen Hearing
    despite him not being present.
    6
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    We address each argument in turn.
    A.   The Notice of Appeal Divested the Circuit Court Only of
    Jurisdiction over the Appealed Case
    We first turn to the single point of error raised on
    appeal raised by the State.    At issue is whether the State is
    barred from prosecuting Michaeledes under a second charging
    document alleging identical counts, while the State’s appeal of
    the dismissal of the first charging document is pending before
    the ICA.   Michaeledes argues that, under Ontiveros, the circuit
    court properly dismissed the second charging document for lack
    of jurisdiction.   The State counters that Ontiveros does not
    apply because a “notice of appeal divests the trial court of
    jurisdiction over the appealed case,” and thus a pending appeal
    does not bar the State from re-charging Michaeledes in a second,
    separate case.   82 Hawaiʻi at 448-49, 
    923 P.2d at 390-91
    (emphasis added) (quoting Richardson v. Sport Shinko (Waikiki
    Corp.), 76 Hawaiʻi 494, 500, 
    880 P.2d 169
    , 175 (1994)).       We
    agree.
    We take this opportunity to clarify that the notice of
    appeal divested the circuit court only of jurisdiction over the
    appealed case and not the subsequent case, which was based on a
    distinct charging document.
    7
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    1.   The State’s appeal in the first case did not divest
    the circuit court of jurisdiction over the second case
    recharging Michaeledes with the same criminal conduct
    Our decisions in Ontiveros and Kalani inform our
    reasoning here.   In Ontiveros, we explained “[t]he general rule
    is that the filing of a notice of appeal divests the trial court
    of jurisdiction over the appealed case.”      
    Id.
     (emphasis added).
    Michaeledes argues the general rule in Ontiveros should govern
    here, and that we should hold the circuit court was divested of
    jurisdiction over the refiled case.     We disagree.   Because
    recharging the defendant does not revive the original case, but
    instead initiates a new case, the appeal of the first case does
    not divest the trial court of jurisdiction over the second case.
    See State v. Kalani, 87 Hawai‘i 260, 262, 
    953 P.2d 1358
    , 1360
    (1998).   Ontiveros only “divests the trial court of jurisdiction
    over the appealed case.”    82 Hawai‘i at 448-49, 
    923 P.2d at
    390-
    91 (emphasis added).
    In Ontiveros, the defendant was charged with multiple
    counts arising from his failure to stop at a red light while
    driving under the influence (DUI).     
    Id. at 447
    , 
    923 P.2d at 389
    .
    The defendant moved to dismiss, alleging double jeopardy because
    he was already subject to an administrative driver’s license
    revocation as a result of his conduct, and the district court
    denied the motion.   
    Id.
       During a recess immediately following
    the district court’s denial, the defendant filed a notice of
    8
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    appeal to this court of the ruling denying his motion to dismiss
    under HRS § 641-17 (1993), 9 arguing lack of jurisdiction.            Id. at
    447-48, 
    923 P.2d at 389-90
    .       When court reconvened and the
    defendant notified the district court of his appeal, the
    district court “concluded that the notice of appeal was a
    nullity” because the supreme court lacked jurisdiction over
    interlocutory appeals from district courts.           
    Id.
       The district
    court subsequently convicted the defendant on the DUI charges.
    
    Id. at 448
    , 
    923 P.2d at 390
    .
    We held that because the denial of a motion to dismiss
    is not immediately appealable, the notice of appeal was
    jurisdictionally defective and therefore did not divest the
    trial court of jurisdiction.        
    Id. at 451-52
    , 
    923 P.2d at 393-94
    .
    Thus, the district court had jurisdiction when it entered
    9     HRS § 641-17, which allowed direct appeals of criminal matters
    from the circuit court to the supreme court, provided in relevant part:
    Interlocutory appeals from circuit courts, criminal
    matters. Upon application made within the time provided by
    the rules of the supreme court, an appeal in a criminal
    matter may be allowed to a defendant from the circuit court
    to the supreme court, subject to chapter 602, from a
    decision denying a motion to dismiss or from other
    interlocutory orders, decisions, or judgments, whenever the
    judge in the judge’s discretion may think the same
    advisable for a more speedy termination of the case. The
    refusal of the judge to allow an interlocutory appeal to
    the appellate court shall not be reviewable by any other
    court.
    (Emphasis added).
    HRS § 641-17 was amended in 2004 to direct appeals to the ICA in
    the first instance. 2004 Haw. Sess. Laws Act 202, § 71 at 945.
    9
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    judgment against the defendant and convicted him on the DUI
    charge.    Id.
    In Kalani, the defendants were charged with assault in
    the second degree for allegedly beating their child.       87 Hawai‘i
    at 260, 
    953 P.2d at 1358
    .    When the circuit court granted the
    defendants’ oral motion to dismiss without prejudice, the State
    appealed the order to the ICA.     
    Id.
       The ICA dismissed the
    State’s appeal for lack of appellate jurisdiction “because an
    order of dismissal without prejudice is not a final appealable
    order.”    
    Id.
    We held that because an order granting a motion to
    dismiss terminates proceedings in the trial court, “an order
    granting a motion to dismiss is final.”      Id. at 262, 593 P.2d at
    1360.    Thus, the ICA improperly dismissed the appeal because it
    had appellate jurisdiction to review the order granting the
    motion to dismiss without prejudice.      Id.   We explained that
    regardless of whether a dismissal is with or without prejudice,
    it is a final order because refiling a new charging document
    does not “revive the original case,” instead it “initiates a new
    case.”    Id.
    Here, there is no dispute that the August 17, 2021
    notice of appeal divested the circuit court of jurisdiction over
    the first case arising from the first charging document.
    10
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    Instead, Michaeledes contends our rule in Ontiveros also
    divested the circuit court of jurisdiction in the second case.
    We disagree because, as we explained in Kalani,
    “recharging [the defendant] does not revive the original case.
    Rather, recharging the defendant initiates a new case.”               87
    Hawai‘i at 262, 
    953 P.2d at 1360
    .           The circuit court’s order
    dismissing the first case without prejudice was a final order
    terminating only that case.         See 
    id.
     (explaining that a
    “dismissal without prejudice is a final order” that “terminates
    the current case”).
    The second charging document alleging the same three
    counts initiated a second case, separate from the first case
    arising from the first charging document.            Because the notice of
    appeal only divested the circuit court of jurisdiction over the
    first case on appeal, and because the second case is a new case,
    separate and distinct from the first, the circuit court has
    jurisdiction to hear the second case while the first case is
    pending appeal before the ICA. 10
    10    Other   jurisdictions that have considered whether the State may
    initiate a second   case based on the same underlying facts while the first
    case is on appeal   have likewise found no jurisdictional barrier to the trial
    court considering   the second case. In State v. Thayer, the Oregon Court of
    Appeals held:
    We agree with the state. Certainly, filing the notice of
    appeal concerning the dismissal of the first information
    deprived the trial court - subject to exceptions not
    pertinent to this case - of jurisdiction to proceed with
    the prosecution of that case. State v. Stevens, 134 Or.
    (continued . . .)
    11
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    2.    Allowing the first case and second case to proceed
    simultaneously promotes judicial efficiency without
    risk of confusion
    As we explained in TSA Int’l Ltd. v. Shimizu Corp.,
    the general rule identified in Ontiveros “is designed to avoid
    the confusion and inefficiency that might flow from placing the
    same issue before two courts at the same time.”           92 Hawai‘i 243,
    265, 
    990 P.2d 713
    , 735 (1999) (citing 9 J. Moore, Moore’s
    Federal Practice ¶ 203.11 at 5-50 (2d ed. 1996)).
    Here, allowing the appeal of the first case to proceed
    concurrently with the second case is unlikely to result in
    confusion because the two cases raise distinct legal issues.
    (continued . . .)
    App. 1, 
    894 P.2d 1217
     (1995). Nothing precluded the state
    from initiating a separate action by filing a second
    information, however. Defendant cites no authority for his
    contention that the state is precluded from doing just
    that; he merely complains that it presents the practical
    problem of requiring him to defend the dismissal of the
    case against him on two fronts. That may be so but such
    practical difficulties do not amount to a jurisdictional
    impediment.
    
    974 P.2d 699
    , 701 (Or. Ct. App. 1999).
    Similarly, in Brown v. State, the Georgia Court of Appeals also
    addressed whether the trial court could hear a case arising from a second
    indictment when the first was on appeal as procedurally defective. 
    745 S.E.2d 699
    , 702 (Ga. Ct. App. 2013). The Georgia Court of Appeals concluded
    the trial court could, explaining:
    The Second Indictment initiated a completely separate
    prosecution on the same charges, and no contention is
    raised that the Second Indictment suffered from the same
    infirmity as the First Indictment. Thus, the trial court’s
    acceptance of the Second Indictment had no effect on the
    issue of whether the First Indictment was valid, and the
    trial court thus had jurisdiction to consider the Second
    Indictment.
    
    Id.
     (footnotes omitted).
    12
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    The appeal arising from the first charging document concerns the
    narrower issue of whether the State may amend a felony
    information and whether a Reckless Driving of Vehicle charge is
    defective for failing to allege a defendant operated a vehicle
    on a public highway.      The second case arising from the second
    charging document more broadly concerns Michaeledes’s criminal
    liability.    Because the appeal of the first case does not
    concern the merits of the underlying charged offenses,
    simultaneous or subsequent rulings in one of these cases are
    unlikely to invalidate or supersede the other.
    Similarly, allowing both cases to proceed will not
    result in undue inefficiency.        Rather, requiring the appeal of
    the first case either be adjudicated or withdrawn prior to
    allowing the State to pursue its prosecution of Michaeledes
    would be less efficient than allowing the cases to proceed
    concurrently, especially since doing so does not “plac[e] the
    same issue before two courts at the same time.”           
    Id.
       Allowing
    both cases to proceed simultaneously most efficiently provides a
    speedy determination of Michaeledes’s criminal liability while
    also allowing the State to pursue the legal issues presented in
    its appeal of the first case. 11
    11    We note, as the State argues, that jeopardy has not yet attached
    to either case and as such, Michaeledes would not be subject to double
    jeopardy by allowing both cases to proceed simultaneously. See State v.
    Moriwake, 
    65 Haw. 47
    , 51, 
    647 P.2d 705
    , 709 (1982) (determining that the
    (continued . . .)
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    B.   Michaeledes’s Points of Error Lack Merit
    On appeal, Michaeledes argues: (1) the circuit court
    erred when it granted the State’s Motion to Reopen Hearing
    because the rule of lenity requires otherwise; (2) even if the
    circuit court could reopen the hearing, the circuit court failed
    to articulate a basis for dismissing the case without prejudice;
    and (3) the circuit court violated Michaeledes’s rights under
    HRPP Rule 43 by hearing and ruling on the State’s Motion to
    Reopen Hearing despite him not being present.           We address each
    argument in turn.
    First, Michaeledes argues that because the dismissal
    of the second case for lack of jurisdiction did not specify it
    was without prejudice, the rule of lenity requires it be
    construed as a dismissal with prejudice.          This argument is
    without merit.     The rule of lenity does not apply because the
    dismissal was for lack of jurisdiction and does not involve a
    question of statutory interpretation.         See State v. Guyton, 135
    Hawaiʻi 372, 380, 
    351 P.3d 1138
    , 1146 (2015) (“This longstanding
    (continued . . .)
    “prohibition against double jeopardy is not implicated until jeopardy has
    ‘attached’” (quoting Serfass v. United States, 
    420 U.S. 377
    , 388 (1975))).
    As we explained in State v. Quitog, “‘it is generally accepted that in jury
    trials, jeopardy attaches when the jury is empaneled and sworn[.]’” 85
    Hawai‘i 128, 141, 
    938 P.2d 559
    , 572 (1997) (alteration in original) (quoting
    State v. Baranco, 77 Hawai‘i 351, 355, 
    884 P.2d 729
    , 733 (1994)). Both in the
    first case arising from the first charging document and the second case
    arising from the second charging document, a jury has not been impaneled or
    sworn in.
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    precept of statutory interpretation states that ‘[w]here a
    criminal statute is ambiguous . . . the statute must be strictly
    construed against the government and in favor of the accused.’”
    (emphasis added) (ellipses in original) (quoting State v.
    Shimabukuro, 100 Hawaiʻi 324, 327, 
    60 P.3d 274
    , 277 (2002)).
    Second, Michaeledes argues that the circuit court
    failed to articulate a basis for its order to dismiss without
    prejudice.   Michaeledes relies on State v. Estencion, which
    requires trial courts to consider various factors and articulate
    written reasoning for dismissing a case with or without
    prejudice in the speedy trial context under HRPP Rule 48 (2018).
    
    63 Haw. 264
    , 268-69, 
    625 P.2d 1040
    , 1043-44 (1981).          Estencion
    and its progeny are irrelevant because Michaeledes moved to
    dismiss for lack of jurisdiction under HRPP Rule 12(b)(1)
    (2018), 12 not under HRPP Rule 48 for a speedy trial violation.
    Michaeledes cites no applicable authority for his contention
    that trial courts must provide a basis for dismissing a case
    without prejudice when that dismissal is for lack of
    jurisdiction.   Even were Michaeledes to point to such an
    12   HRPP Rule 12(b)(1) provides:
    (b) Pretrial Motions. Any defense, objection, or
    request which is capable of determination without the trial
    of the general issue may be raised before trial by motion.
    Motions may be written or oral at the discretion of the
    judge. The following must be raised prior to trial:
    (1) defenses and objections based on defects in the
    institution of the prosecution[.]
    15
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    authority, it does not appear that a dismissal with prejudice
    would be appropriate given the circumstances of this case
    because the jurisdictional defect was curable.           Put another way,
    since the basis for the jurisdictional defect would be
    eliminated once the first appeal is resolved, it would make no
    sense to preclude the State from returning to court once that
    condition had been satisfied.
    Third, Michaeledes argues the circuit court violated
    his rights under HRPP Rule 43 13 by hearing and ruling on the
    State’s Motion to Reopen Hearing despite Michaeledes’s absence.
    While HRPP Rule 43 requires the defendant “at pretrial
    evidentiary hearings” and “at every stage of the trial,” the
    13    HRPP Rule 43 provides in relevant part:
    Rule 43. Presence of the Defendant.
    (a) Presence required. The defendant shall be
    present at the arraignment, at the time of the plea, at
    evidentiary pretrial hearings, at every stage of the trial
    including the impaneling of the jury and the return of the
    verdict, and at the imposition of sentence, except as
    otherwise provided by this Rule.
    . . .
    (c) Presence not required. A defendant need not be
    present either physically or by video conference if:
    (1) the defendant is a corporation and appears by
    counsel; or
    (2) the proceeding is a conference or argument upon a
    question of law; or
    (3) the proceeding is a reduction of sentence under
    Rule 35.
    (Emphases added).
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    defendant’s presence is not required if “the proceeding is a
    conference or argument upon a question of law,” as it was here.
    V.   CONCLUSION
    For the foregoing reasons, the circuit court erred in
    dismissing Case No. 5CPC-XX-XXXXXXX for lack of jurisdiction.
    Accordingly, we reverse: (1) the circuit court’s October 1, 2021
    order to the extent it dismissed the case for lack of
    jurisdiction; and (2) the circuit court’s October 7, 2021 order
    dismissing the case for lack of jurisdiction.      The case is
    remanded for further proceedings consistent with this opinion.
    Rebecca Vogt Like                      /s/ Mark E. Recktenwald
    Tracy J. Murakami
    for Plaintiff-Appellee/                /s/ Paula A. Nakayama
    Cross-Appellant
    /s/ Sabrina S. McKenna
    Emmanuel G. Guerrero
    for Defendant-Appellant/               /s/ Michael D. Wilson
    Cross-Appellee
    /s/ Todd W. Eddins
    17