State v. Amar ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
15-MAR-2021
12:19 PM
Dkt. 18 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
MADELYN AMAR, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
#EWA DIVISION
(CASE NO. 1DTA-18-02966)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Upon consideration of the March 4, 2021 "Motion to
Supplement Record on Appeal or to Dismiss Appeal" (Motion), which
we construe as a motion to supplement the record on appeal and
for relief from default and an extension of time to file the
jurisdiction statement and opening brief, or to dismiss the
appeal, by Defendant-Appellant Madelyn Evelyn Amar (Amar), the
papers in support, and the record, it appears we lack appellate
jurisdiction over Amar's appeal.
"The right of appeal in a criminal case is purely
statutory[.]" State v. Nicol, 140 Hawai#i 482, 485, 403 P.3d
259, 262 (2017) (citation and internal quotation marks omitted).
The court has jurisdiction "[t]o hear and determine appeals from
any court or agency when appeals are allowed by law[.]" Hawaii
Revised Statutes (HRS) § 602-57(1) (2016). HRS § 641-12 (2016)
provides that "[a]ppeals upon the record shall be allowed from
all final decisions and final judgments of district courts in all
criminal matters."
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Under HRS § 641-12, "[j]udgments of conviction entered
in the district courts may not be appealed unless they are
final," and "[j]udgments of conviction are not final unless they
include the final adjudication and the final sentence." State v.
Kilborn, 109 Hawai#i 435, 442, 127 P.3d 95, 102 (2005) (emphasis
added). Here, the District Court of the First Circuit's
(district court) February 5, 2019 Notice of Entry of Judgment
and/or Order and Plea/Judgment (2/5/19 Judgment) expressly
reserves ruling on restitution and a driver's license revocation
and, thus, is not final and appealable under HRS § 641-12.
Consequently, the notice of appeal from the 2/5/19 Judgment is
jurisdictionally defective.1
The district court's March 1, 2021 Notice of Entry of
Judgment and/or Order (3/1/21 Judgment), which sentences Amar to
a one-year driver's license revocation and declines to order
restitution, is final and appealable under HRS § 641-122 because
it is the final judgment in a series entered by the district
court to express its final decision and sentence. However,
Amar's notice of appeal from the 2/5/19 Judgment is not deemed to
have been filed immediately after entry of the 3/1/21 Judgment,
under Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(b)(4),
because when Amar filed it, the district court had not announced
its sentence. See HRAP Rule 4(b)(4). See also, e.g.,
Grattafiori v. State, 79 Hawai#i 10, 14, 897 P.2d 937, 941
(1995).
In criminal cases, the Hawai#i Supreme Court has
recognized two exceptions to the requirement that notices of
appeal be timely filed: where "(1) defense counsel has
inexcusably or ineffectively failed to pursue a defendant's
appeal from a criminal conviction in the first instance; or
(2) the trial court's decision was unannounced and no notice of
1
On February 21, 2020, when the court issued its temporary remand
order, the court had not analyzed whether the February 5, 2019 Judgment was
final and appealable and thus whether the notice of appeal was
jurisdictionally sufficient.
2
The district court retained jurisdiction to enter the 3/1/21
Judgment. See State v. Ontiveros, 82 Hawai #i 446, 449, 923 P.2d 388, 391
(1996).
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
the entry of judgment was ever provided." State v. Irvine, 88
Hawai#i 404, 407, 967 P.2d 236, 239 (1998) (citations omitted).
However, neither exception applies here. In particular, it
appears that the time to appeal from the 3/1/21 Judgment has not
yet expired.
Amar's Motion acknowledges that the 2/5/19 Judgment was
not final and appealable and requests that this court supplement
the record on appeal with the 3/1/21 Judgment or dismiss the
present appeal. However, the Motion is not supported by an
"affidavit or declaration that reflects a knowing and intelligent
understanding of the consequences of the dismissal of the appeal
and that the withdrawal is made voluntarily," as required by HRAP
Rule 42(c).
Therefore, IT IS HEREBY ORDERED that the motion to
dismiss the appeal is denied for its failure to comply with HRAP
Rule 42(c).
IT IS HEREBY FURTHER ORDERED that the appeal is
dismissed for lack of appellate jurisdiction without prejudice to
Amar filing a timely notice of appeal from the 3/1/21 Judgment.
IT IS HEREBY FURTHER ORDERED that the motion for relief
from default and extensions of time to file the jurisdiction
statement and opening brief is dismissed as moot in light of our
dismissal of the appeal.
DATED: Honolulu, Hawai#i, March 15, 2021.
/s/ Keith K. Hiraoka
Presiding Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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