State v. Grandinetti ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAY-2020
10:07 AM
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
FRANCIS A. GRANDINETTI, also known as ALBERT FERNANDEZ,
also known as FRANK MYERS, also known as FRANK IRANDINE,
Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CASE NO. 3PC930000141)
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 Defendant-Appellant Francis A.
Grandinetti (Grandinetti) has asserted, apparently from a
decision by the Hawai#i Paroling Authority regarding the sentence
that Grandinetti is currently serving for his November 8, 1993
conviction in Circuit Court Criminal Case Number 3PC930000141 for
one count of forgery in the second degree in violation of Hawaii
Revised Statutes (HRS) § 708-852 (1993) and three counts of theft
in the second degree in violation of HRS § 708-831 (1993).
"The right of appeal in a criminal case is purely
statutory[.]" State v. Nicol, 140 Hawai#i 482, 485, 403 P.3d
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
259, 262 (2017) (citation and internal quotation marks omitted).
In circuit court criminal cases, a defendant may appeal from a
judgment of conviction pursuant to HRS § 641-11 (2016), a
certified interlocutory order pursuant to HRS § 641-17 (1016),
"or from an interlocutory order denying a motion to dismiss based
on double jeopardy." State v. Kealaiki, 95 Hawai#i 309, 312, 22
P.3d 588, 591 (2001) (citation omitted). However, there is no
statutory authority for defendant to appeal from a decision by
the Hawai#i Paroling Authority directly to the Hawai#i
Intermediate Court of Appeals.
The statute that governs the Hawai#i Paroling
Authority's procedure for considering parole is HRS § 706-670
(2014). HRS § 706-670 does not authorize an appeal from a
Hawai#i Paroling Authority decision directly to this court. The
Supreme Court of Hawai#i and this court have acknowledged that
the appropriate means for a criminal defendant to challenge the
Hawai#i Paroling Authority's decision to deny parole is by
petitioning a circuit court for post-conviction relief in a
special proceeding pursuant to Rule 40 of the Hawai#i Rules of
Penal Procedure (HRPP). Williamson v. Hawai#i Paroling
Authority, 97 Hawai#i 183, 194-95, 35 P.3d 210, 221-22 (2001);
Turner v. Hawai#i Paroling Authority, 93 Hawai#i 298, 307, 1 P.3d
768, 777 (App. 2000). After the circuit court adjudicates the
HRPP Rule 40 petition for post-conviction relief, the criminal
defendant can appeal from the circuit court's judgment directly
to the Hawai#i Intermediate Court of Appeals pursuant to HRS
§ 641-11 and HRPP Rule 40(h). Grattafiori v. State, 79 Hawai#i
10, 13, 897 P.2d 937, 940 (1995). The record does not show that
Grandinetti has sought judicial review of the Hawai#i Paroling
Authority's decision by way of a petition to the circuit court
for post-conviction relief pursuant to HRPP Rule 40. Absent an
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
appealable judgment or order, we lack jurisdiction over this
appeal by Grandinetti.
Therefore, 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 appellate court case number CAAP-XX-XXXXXXX are dismissed as
moot.
DATED: Honolulu, Hawai#i, May 20, 2020.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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