State v. Wilborn ( 2021 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-AUG-2021
10:12 AM
Dkt. 17 ODSLJ
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
(CR. NO. 1CPC-XX-XXXXXXX)
ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Hiraoka, Presiding Judge, Wadsworth and Nakasone, JJ.)
Upon review of the record in CAAP-XX-XXXXXXX, it
appears this court lacks appellate jurisdiction over the appeal
because there was no timely appeal from a final appealable order
or judgment in the underlying case, 1CPC-XX-XXXXXXX. On May 21,
2021, self-represented Defendant-Appellant Roberta Wilborn
(Appellant) filed a Notice of Appeal from 1CPC-XX-XXXXXXX. On
July 14, 2021, Appellant filed a "Notice of Appeal Fraud Upon
Court" which stated, inter alia, "I Roberta Malori move forward
to appeal of a 'mental assessment' hearing order by First Circuit
Court of Honolulu" which we construe as an amended notice of
appeal.
On October 25, 2019, the circuit court issued an
interlocutory "Order Granting Motion for Mental Examination to
Determine Defendant's Fitness to Proceed and Penal
Responsibility" which ordered Appellant to undergo an evaluation
to determine fitness to proceed and penal responsibility pursuant
to Hawaii Revised Statutes (HRS) Chapter 704. The order was not
certified for an interlocutory appeal.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
On September 17, 2020, the circuit court issued an
interlocutory "Order Denying Without Hearing "Motion to Quash
Mental Examination to Determine Defendant's Fitness to Proceed
and Penal Responsibility" Filed September 16, 2020." The order
was not certified for an 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 HRS Chapter
704 when a defendant 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.
IT IS HEREBY ORDERED that the appeal is dismissed for
lack of appellate jurisdiction. All pending motions are
dismissed as moot.
DATED: Honolulu, Hawai#i, August 12, 2021.
/s/ Keith K. Hiraoka
Presiding Judge
/s/ Clyde J. Wadsworth
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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