Tierney v. Perkins ( 2012 )

Electronically Filed
Supreme Court
SCPW-12-0000533
14-JUN-2012
09:39 AM
NO. SCPW-12-0000533
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
MICHAEL TIERNEY, Petitioner,
vs.
THE HONORABLE RICHARD K. PERKINS, JUDGE OF THE CIRCUIT
COURT OF THE FIRST CIRCUIT, STATE OF HAWAI#I, Respondent.
ORIGINAL PROCEEDING
(S.P.P. No. 12-1-0011)
ORDER GRANTING PETITION FOR WRIT OF MANDAMUS
(By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ.
and Circuit Judge Nakasone, assigned by reason of vacancy)
Upon consideration of petitioner Michael Tierney's
petition for a writ of mandamus and the papers in support, it
appears that the notice of appeal filed on May 7, 2012 in S.P.P.
No. 12-1-0011 purports to appeal the dismissal of the HRPP Rule
40 petition, but no dismissal has occurred. The May 7, 2012
notice of appeal is not a valid notice of appeal and its filing
did not transfer jurisdiction of S.P.P. No. 12-1-0011 from the
circuit court to the appellate court. The respondent judge's May
17, 2012 decision to the contrary was incorrect. See State v.
Ontiveros, 82 Hawai#i 446, 449, 923 P.2d 388, 391) ("Where the
notice of appeal is jurisdictionally defective, filing the notice
does not transfer jurisdiction from the trial court to the
appellate court."). Therefore,
IT IS HEREBY ORDERED that the answer provision of HRAP
21(c) is suspended pursuant to HRAP 2.
IT IS FURTHER ORDERED that the petition for a writ of
mandamus is granted. The respondent judge shall proceed with
S.P.P. No. 12-1-0011.
DATED: Honolulu, Hawai#i, June 14, 2012.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Karen T. Nakasone
2