State v. Yuen ( 2020 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
04-DEC-2020
09:20 AM
Dkt. 34 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
CHARLES TUNG MING YUEN, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DTA-18-03510)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
Upon review of the record in CAAP-XX-XXXXXXX, it
appears this court lacks appellate jurisdiction because no final
judgment was entered by the District Court.
Defendant-Appellant Charles Tung Ming Yuen (Appellant)
appeals from the December 11, 2019 Notice of Entry of Judgment
and/or Order and Plea/Judgment (Judgment).
On December 11, 2019, the Judgment was entered which
found Appellant guilty of Operating a Vehicle Under the Influence
of an Intoxicant, in violation of Hawaii Revised Statutes (HRS)
§ 291E-61 (Supp. 2018). However, there are notations on the
document stating "Referred to: restitution + ability to pay
studies" and "HEARING on rest 2/11/20." The December 11, 2019
Court Minutes also state "(Hrg on Restitution 2/11/20 10D-AM)."
Thus, the issue of restitution was not adjudicated. "Appeals
upon the record shall be allowed from all final decisions and
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
final judgments of district courts in all criminal matters." HRS
§ 641-12 (2016).
Judgments of conviction entered in the district courts may
not be appealed unless they are final. Judgments of
conviction are not final unless they include the final
adjudication and the final sentence. In the instant case,
the sentence imposed was not the final sentence because the
district court expressly left open the possibility that its
sentence of [Appellant] might include an order requiring
[Appellant] to pay restitution. The court did not finally
decide whether it would order [Appellant] to pay restitution
and, if so, in what amount. Consequently, the [] Judgment
is not final and, because it is not final, it is not
appealable.
State v. Kilborn, 109 Hawai#i 435, 442, 127 P.3d 95, 102
(App. 2005).
Therefore, IT IS HEREBY ORDERED that the appeal is
dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai#i, December 4, 2020.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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