Le v. State ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
03-JUN-2020
09:04 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ANTHONY LE, Petitioner-Appellant, v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR191000004 (CR. NO. 1PC151001009))
ORDER
DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
AND
DISMISSING ALL PENDING MOTIONS AS MOOT
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Upon review of the record, it appears that we lack
jurisdiction over the appeal that Petitioner-Appellant Anthony
Le (Le), self-represented, has asserted from the December 24,
2019 order denying Le's petition for post-conviction relief
pursuant to Rule 40 of the Hawai#i Rules of Penal Procedure
(HRPP) (Order Denying Rule 40 Petition) in S.P.P.
No. 1PR191000004, because the appeal is untimely under Rule 4(b)
of the Hawai#i Rules of Appellate Procedure (HRAP).
"[P]ursuant to HRAP Rule 4(b), an appeal from an order
denying post-conviction relief must either be filed within thirty
days after the entry of the order denying the HRPP Rule 40
petition or, in the alternative, after the announcement but
before the entry of the order." Grattafiori v. State, 79 Hawai#i
10, 13, 897 P.2d 937, 940 (1995). Under similar circumstances,
the Supreme Court of Hawai#i has held that, when a self-
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
represented prisoner attempts to assert an appeal, the "notice of
appeal is deemed filed for purposes of [HRAP] Rule 4(a) on the
day it is tendered to prison officials by a pro se prisoner."
Setala v. J.C. Penney Company, 97 Hawai#i 484, 485, 40 P.3d 886,
887 (2002) (internal quotation marks omitted).
Here, HRAP Rule 4(b) provides the controlling time
period for filing a notice of appeal, and the holding in Setala
controls when the notice of appeal is deemed filed. Contrary to
the thirty-day time limitation under HRAP Rule 4(b)(1), Le did
not tender his notice of appeal, which bears a signature date of
May 18, 2020, within thirty days after entry of the December 24,
2019 Order Denying Rule 40 Petition. Therefore, Le's appeal is
not timely. Accordingly,
IT IS HEREBY ORDERED that appellate court case number
CAAP-XX-XXXXXXX is dismissed for lack of appellate jurisdiction.
IT IS FURTHER HEREBY ORDERED that all pending motions
in CAAP-XX-XXXXXXX are dismissed as moot.
DATED: Honolulu, Hawai#i, June 3, 2020.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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