State v. Wilborn ( 2022 )

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
06-JUN-2022
07:50 AM
Dkt. 22 OGMD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI I
STATE OF HAWAI I, Plaintiff-Appellee, v.
ROBERTA WILBORN, Defendant-Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CRIMINAL NO. 1CPC-XX-XXXXXXX)
ORDER GRANTING IN PART MOTION TO DISMISS
FOR LACK OF APPELLATE JURISDICTION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Upon consideration of the Motion to Dismiss for Lack of
Appellate Jurisdiction (Motion), filed by Plaintiff-Appellee
State of Hawai i, on April 11, 2022, the papers in support, and
the record, it appears that we lack jurisdiction over Defendant-
Appellant Roberta Wilborn's (Wilborn) appeal from Case No. 1CPC-
XX-XXXXXXX because the Circuit Court of the First Circuit
(circuit court) has not entered a final, appealable order or
judgment and the appeal is premature.
Wilborn appears to appeal from the circuit court's
September 22, 2021 Order Granting Motion for Mental Examination
to Determine [Wilborn]'s Fitness to Proceed and Penal
Responsibility. The circuit court did not certify the order for
interlocutory appeal.
"It is well-settled that the right to appeal is purely
statutory and exists only when given by some constitutional or
statutory provision." Burke v. Cty. of Maui, 95 Hawai i 288,
289, 22 P.3d 84, 85 (2001). There is no statutory right to
appeal under Hawaii Revised Statutes chapter 704 when a defendant
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER
is ordered to undergo an evaluation to determine fitness to
proceed or penal responsibility. There is no appealable order or
final judgment in the record on appeal. Therefore, this court
lacks appellate jurisdiction.
Further, Nelson W. Goo, Wilborn's court-appointed
counsel, whom the circuit court did not appoint as standby
counsel, has not withdrawn or been discharged from representing
Wilborn. See State v. Hirano, 8 Haw. App. 330, 333-36, 802 P.2d
482, 484-85 (1990). Therefore, Wilborn improperly filed the
notice of appeal self-represented.
IT IS HEREBY FURTHER ORDERED that the Motion is granted
in part and the appeal is dismissed for lack of appellate
jurisdiction.
DATED: Honolulu, Hawai i, June 6, 2022.
/s/ Keith K. Hiraoka
Presiding Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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