State v. Michaeledes.

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
03-MAR-2023
08:13 AM
Dkt. 7 OP
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
---o0o---
STATE OF HAWAI‘I,
Plaintiff-Appellee/Cross-Appellant,
vs.
DAVID JOHN MICHAELEDES,
Defendant-Appellant/Cross-Appellee.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CAAP-XX-XXXXXXX and CAAP-XX-XXXXXXX; CASE NO. 5CPC-XX-XXXXXXX)
MARCH 3, 2023
RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ.
OPINION OF THE COURT BY RECKTENWALD, C.J.
I. INTRODUCTION
David John Michaeledes was charged with several counts
arising from an alleged hit and run. The Circuit Court of the
Fifth Circuit dismissed the charging document as insufficient.
The State appealed to the Intermediate Court of Appeals (“ICA”)
and simultaneously recharged Michaeledes via a second “Felony
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Information and Non-Felony Complaint,” which attempted to
correct the inadequacies in the first charging document
identified by the circuit court. The circuit court dismissed
the second charging document for lack of jurisdiction while the
first charging document remained pending on appeal before the
ICA. We hold that the filing of the notice of appeal in the
first case did not divest the circuit court of jurisdiction over
the second case recharging Michaeledes for the same criminal
conduct.
II. BACKGROUND
On December 28, 2020, Michaeledes was charged in Case
No. 5CPC-XX-XXXXXXX via “Felony Information and Non-Felony
Complaint” with three criminal counts for Reckless Driving of
Vehicle, Hawai‘i Revised Statutes (“HRS”) § 291-2 (2020); Assault
in the Second Degree, HRS § 707-711(1)(a) and/or (d) (2014); and
Accidents Involving Substantial Bodily Injury, HRS § 291C-12.5
(2020). Michaeledes moved to dismiss the charges, arguing the
charging language was fatally insufficient. The State
subsequently moved to amend its original “Felony Information and
Non-Felony Complaint” and Michaeledes opposed that motion,
arguing that a felony information may not be amended over a
defendant’s objection under Hawaiʻi Rules of Penal Procedure
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(HRPP) Rule 7(f)(1) (2018) 1 and HRS § 806-9 (2014). 2 The circuit
court agreed with Michaeledes and, on August 10, 2021, entered
written orders denying the State leave to amend and granting
Michaeledes’s motion to dismiss without prejudice. 3 On August
17, 2021, the State appealed the circuit court’s August 10
orders. 4
Shortly thereafter, on August 31, 2021, the State
recharged Michaeledes in Case No. 5CPC-XX-XXXXXXX by way of a
second “Felony Information and Non-Felony Complaint,” this time
alleging statutory definitions and elements omitted in the first
“Felony Information and Non-Felony Complaint.” The counts in
1 HRPP Rule 7(f)(1) provides: “The court may permit a charge other
than an indictment to be amended at any time before trial commences if
substantial rights of the defendant are not prejudiced.”
2 HRS § 806-9 provides:
All provisions of law applying to prosecutions upon
indictments, to writs and process therein, and the issuing
and service thereof, to motions, pleadings, trials, and
punishments, or the passing or execution of any sentence,
and to all proceedings in cases of indictment, whether in
the court of original or appellate jurisdiction, shall in
the same manner and to the same extent as near as may be,
apply to information and all prosecutions and proceedings
thereon.
3 The Honorable Randal G.B. Valenciano presided.
4 In its appeal of the dismissal of the first “Felony Information
and Non-Felony Complaint,” the State raises three arguments: (1) the Reckless
Driving charge was not defective for failing to allege Michaeledes operated a
vehicle on a public highway; (2) as a matter of law, a felony information may
be amended to allege statutory definitions or essential elements; and (3) the
circuit court abused its discretion by dismissing the case. This appeal,
which arises from the first “Felony Information and Non-Felony Complaint,”
was docketed as CAAP-XX-XXXXXXX. This appeal is not currently before this
court, and therefore we do not address the merits.
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the first “Felony Information and Non-Felony Complaint”
(hereinafter, the “first charging document”) are the same as
those alleged in the second “Felony Information and Non-Felony
Complaint” (hereinafter, the “second charging document”).
Michaeledes moved to dismiss the second charging
document for lack of jurisdiction under State v. Ontiveros, 82
Hawai‘i 446, 923 P.2d 388 (1996), since the appeal of the first
charging document was pending before the ICA. On September 20,
2021, the circuit court agreed with Michaeledes and orally
dismissed the second charging document, this time for lack of
jurisdiction. 5 The State moved to reopen the hearing to clarify
whether the dismissal was with or without prejudice. On
September 30, 2021, the circuit court held a hearing on the
State’s Motion to Reopen Hearing at which Michaeledes was not
present.
On October 1, 2021, the circuit court entered a
written order reopening the September 20, 2021 hearing on
Michaeledes’s Motion to Dismiss for Lack of Jurisdiction and
clarified that its dismissal of the second charging document was
without prejudice. 6 On October 7, 2021, the circuit court then
5 The Honorable Randal G.B. Valenciano presided.
6 In its October 1 order, the circuit court explained it “intended
that said dismissal would be WITHOUT prejudice” and “clarifie[d] that the
Felony Information and Non-Felony Complaint filed in the above-captioned case
is dismissed without prejudice.”
(continued . . .)
4
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entered a written order dismissing the second charging document. 7
Michaeledes appealed the October 1 order, arguing the complaint
should be dismissed with prejudice. The State appealed the
October 7 order, arguing Ontiveros did not divest the circuit
court of jurisdiction to proceed against Michaeledes on the
second charging document. The appeals of the October 1 and
October 7 orders, both arising from the second charging
document, were subsequently consolidated and are now before this
court. 8
III. STANDARDS OF REVIEW
A. Jurisdiction
Whether the circuit court had jurisdiction is reviewed
under the right/wrong standard. Ontiveros, 82 Hawai‘i at 448,
923 P.2d at 390.
B. Questions of Law
“We review questions of law under the right/wrong
standard.” State v. Hernandez, 143 Hawai‘i 501, 507, 431 P.3d
(continued . . .)
7 In its October 7 order, the circuit court explained in a footnote
that during the September 30 hearing, it had orally granted the Stateʻs
Motion to Reopen Hearing and “clarified the order of dismissal was without
prejudice.”
8 Michaeledes’s appeal arising from the October 1 order was
docketed as CAAP-XX-XXXXXXX. The State’s appeal arising from the October 7
order was docketed as CAAP-XX-XXXXXXX. The consolidated appeals were
docketed as CAAP-XX-XXXXXXX.
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1274, 1280 (2018) (citing State v. Gomez-Lobato, 130 Hawai‘i 465,
469, 312 P.3d 897, 901 (2013)).
C. Interpretation of Court Rules
“‘When interpreting rules promulgated by the court,
principles of statutory construction apply.’” State v.
Thompson, 150 Hawai‘i 262, 266, 500 P.3d 447, 451 (2021) (quoting
State v. Baron, 80 Hawai‘i 107, 113, 905 P.2d 613, 619 (1995)).
“The interpretation of a statute is a question of law which this
court reviews de novo.” Id. (citing State v. Ruggiero, 114
Hawai‘i 227, 231, 160 P.3d 703, 707 (2007)).
IV. DISCUSSION
In its appeal of the October 7 order, the State argues
that the notice of appeal arising from the first charging
document did not divest the circuit court of jurisdiction over
the second case that was based on the second charging document.
In his appeal of the October 1 order, Michaeledes
argues: (1) the circuit court erred when it granted the State’s
Motion to Reopen Hearing because the rule of lenity requires
otherwise; (2) even if the circuit court could reopen the
hearing, the circuit court failed to articulate its reasoning
for dismissing the case without prejudice; and (3) the circuit
court violated Michaeledes’s rights under HRPP Rule 43 (2018) by
hearing and ruling on the State’s Motion to Reopen Hearing
despite him not being present.
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We address each argument in turn.
A. The Notice of Appeal Divested the Circuit Court Only of
Jurisdiction over the Appealed Case
We first turn to the single point of error raised on
appeal raised by the State. At issue is whether the State is
barred from prosecuting Michaeledes under a second charging
document alleging identical counts, while the State’s appeal of
the dismissal of the first charging document is pending before
the ICA. Michaeledes argues that, under Ontiveros, the circuit
court properly dismissed the second charging document for lack
of jurisdiction. The State counters that Ontiveros does not
apply because a “notice of appeal divests the trial court of
jurisdiction over the appealed case,” and thus a pending appeal
does not bar the State from re-charging Michaeledes in a second,
separate case. 82 Hawaiʻi at 448-49, 923 P.2d at 390-91(emphasis added) (quoting Richardson v. Sport Shinko (Waikiki
Corp.), 76 Hawaiʻi 494, 500, 880 P.2d 169, 175 (1994)). We
agree.
We take this opportunity to clarify that the notice of
appeal divested the circuit court only of jurisdiction over the
appealed case and not the subsequent case, which was based on a
distinct charging document.
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1. The State’s appeal in the first case did not divest
the circuit court of jurisdiction over the second case
recharging Michaeledes with the same criminal conduct
Our decisions in Ontiveros and Kalani inform our
reasoning here. In Ontiveros, we explained “[t]he general rule
is that the filing of a notice of appeal divests the trial court
of jurisdiction over the appealed case.” Id. (emphasis added).
Michaeledes argues the general rule in Ontiveros should govern
here, and that we should hold the circuit court was divested of
jurisdiction over the refiled case. We disagree. Because
recharging the defendant does not revive the original case, but
instead initiates a new case, the appeal of the first case does
not divest the trial court of jurisdiction over the second case.
See State v. Kalani, 87 Hawai‘i 260, 262, 953 P.2d 1358, 1360
(1998). Ontiveros only “divests the trial court of jurisdiction
over the appealed case.” 82 Hawai‘i at 448-49, 923 P.2d at 390-
91 (emphasis added).
In Ontiveros, the defendant was charged with multiple
counts arising from his failure to stop at a red light while
driving under the influence (DUI). Id. at 447, 923 P.2d at 389.
The defendant moved to dismiss, alleging double jeopardy because
he was already subject to an administrative driver’s license
revocation as a result of his conduct, and the district court
denied the motion. Id. During a recess immediately following
the district court’s denial, the defendant filed a notice of
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appeal to this court of the ruling denying his motion to dismiss
under HRS § 641-17 (1993), 9 arguing lack of jurisdiction. Id. at
447-48, 923 P.2d at 389-90. When court reconvened and the
defendant notified the district court of his appeal, the
district court “concluded that the notice of appeal was a
nullity” because the supreme court lacked jurisdiction over
interlocutory appeals from district courts. Id. The district
court subsequently convicted the defendant on the DUI charges.
Id. at 448, 923 P.2d at 390.
We held that because the denial of a motion to dismiss
is not immediately appealable, the notice of appeal was
jurisdictionally defective and therefore did not divest the
trial court of jurisdiction. Id. at 451-52, 923 P.2d at 393-94.
Thus, the district court had jurisdiction when it entered
9 HRS § 641-17, which allowed direct appeals of criminal matters
from the circuit court to the supreme court, provided in relevant part:
Interlocutory appeals from circuit courts, criminal
matters. Upon application made within the time provided by
the rules of the supreme court, an appeal in a criminal
matter may be allowed to a defendant from the circuit court
to the supreme court, subject to chapter 602, from a
decision denying a motion to dismiss or from other
interlocutory orders, decisions, or judgments, whenever the
judge in the judge’s discretion may think the same
advisable for a more speedy termination of the case. The
refusal of the judge to allow an interlocutory appeal to
the appellate court shall not be reviewable by any other
court.
(Emphasis added).
HRS § 641-17 was amended in 2004 to direct appeals to the ICA in
the first instance. 2004 Haw. Sess. Laws Act 202, § 71 at 945.
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judgment against the defendant and convicted him on the DUI
charge. Id.
In Kalani, the defendants were charged with assault in
the second degree for allegedly beating their child. 87 Hawai‘i
at 260, 953 P.2d at 1358. When the circuit court granted the
defendants’ oral motion to dismiss without prejudice, the State
appealed the order to the ICA. Id. The ICA dismissed the
State’s appeal for lack of appellate jurisdiction “because an
order of dismissal without prejudice is not a final appealable
order.” Id.We held that because an order granting a motion to
dismiss terminates proceedings in the trial court, “an order
granting a motion to dismiss is final.” Id. at 262, 593 P.2d at
1360. Thus, the ICA improperly dismissed the appeal because it
had appellate jurisdiction to review the order granting the
motion to dismiss without prejudice. Id. We explained that
regardless of whether a dismissal is with or without prejudice,
it is a final order because refiling a new charging document
does not “revive the original case,” instead it “initiates a new
case.” Id.
Here, there is no dispute that the August 17, 2021
notice of appeal divested the circuit court of jurisdiction over
the first case arising from the first charging document.
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Instead, Michaeledes contends our rule in Ontiveros also
divested the circuit court of jurisdiction in the second case.
We disagree because, as we explained in Kalani,
“recharging [the defendant] does not revive the original case.
Rather, recharging the defendant initiates a new case.” 87
Hawai‘i at 262, 953 P.2d at 1360. The circuit court’s order
dismissing the first case without prejudice was a final order
terminating only that case. See id. (explaining that a
“dismissal without prejudice is a final order” that “terminates
the current case”).
The second charging document alleging the same three
counts initiated a second case, separate from the first case
arising from the first charging document. Because the notice of
appeal only divested the circuit court of jurisdiction over the
first case on appeal, and because the second case is a new case,
separate and distinct from the first, the circuit court has
jurisdiction to hear the second case while the first case is
pending appeal before the ICA. 10
10 Other jurisdictions that have considered whether the State may
initiate a second case based on the same underlying facts while the first
case is on appeal have likewise found no jurisdictional barrier to the trial
court considering the second case. In State v. Thayer, the Oregon Court of
Appeals held:
We agree with the state. Certainly, filing the notice of
appeal concerning the dismissal of the first information
deprived the trial court - subject to exceptions not
pertinent to this case - of jurisdiction to proceed with
the prosecution of that case. State v. Stevens, 134 Or.
(continued . . .)
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2. Allowing the first case and second case to proceed
simultaneously promotes judicial efficiency without
risk of confusion
As we explained in TSA Int’l Ltd. v. Shimizu Corp.,
the general rule identified in Ontiveros “is designed to avoid
the confusion and inefficiency that might flow from placing the
same issue before two courts at the same time.” 92 Hawai‘i 243,
265, 990 P.2d 713, 735 (1999) (citing 9 J. Moore, Moore’s
Federal Practice ¶ 203.11 at 5-50 (2d ed. 1996)).
Here, allowing the appeal of the first case to proceed
concurrently with the second case is unlikely to result in
confusion because the two cases raise distinct legal issues.
(continued . . .)
App. 1, 894 P.2d 1217 (1995). Nothing precluded the state
from initiating a separate action by filing a second
information, however. Defendant cites no authority for his
contention that the state is precluded from doing just
that; he merely complains that it presents the practical
problem of requiring him to defend the dismissal of the
case against him on two fronts. That may be so but such
practical difficulties do not amount to a jurisdictional
impediment.
974 P.2d 699, 701 (Or. Ct. App. 1999).
Similarly, in Brown v. State, the Georgia Court of Appeals also
addressed whether the trial court could hear a case arising from a second
indictment when the first was on appeal as procedurally defective. 745
S.E.2d 699, 702 (Ga. Ct. App. 2013). The Georgia Court of Appeals concluded
the trial court could, explaining:
The Second Indictment initiated a completely separate
prosecution on the same charges, and no contention is
raised that the Second Indictment suffered from the same
infirmity as the First Indictment. Thus, the trial court’s
acceptance of the Second Indictment had no effect on the
issue of whether the First Indictment was valid, and the
trial court thus had jurisdiction to consider the Second
Indictment.
Id. (footnotes omitted).
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The appeal arising from the first charging document concerns the
narrower issue of whether the State may amend a felony
information and whether a Reckless Driving of Vehicle charge is
defective for failing to allege a defendant operated a vehicle
on a public highway. The second case arising from the second
charging document more broadly concerns Michaeledes’s criminal
liability. Because the appeal of the first case does not
concern the merits of the underlying charged offenses,
simultaneous or subsequent rulings in one of these cases are
unlikely to invalidate or supersede the other.
Similarly, allowing both cases to proceed will not
result in undue inefficiency. Rather, requiring the appeal of
the first case either be adjudicated or withdrawn prior to
allowing the State to pursue its prosecution of Michaeledes
would be less efficient than allowing the cases to proceed
concurrently, especially since doing so does not “plac[e] the
same issue before two courts at the same time.” Id. Allowing
both cases to proceed simultaneously most efficiently provides a
speedy determination of Michaeledes’s criminal liability while
also allowing the State to pursue the legal issues presented in
its appeal of the first case. 11
11 We note, as the State argues, that jeopardy has not yet attached
to either case and as such, Michaeledes would not be subject to double
jeopardy by allowing both cases to proceed simultaneously. See State v.
Moriwake, 65 Haw. 47, 51, 647 P.2d 705, 709 (1982) (determining that the
(continued . . .)
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B. Michaeledes’s Points of Error Lack Merit
On appeal, Michaeledes argues: (1) the circuit court
erred when it granted the State’s Motion to Reopen Hearing
because the rule of lenity requires otherwise; (2) even if the
circuit court could reopen the hearing, the circuit court failed
to articulate a basis for dismissing the case without prejudice;
and (3) the circuit court violated Michaeledes’s rights under
HRPP Rule 43 by hearing and ruling on the State’s Motion to
Reopen Hearing despite him not being present. We address each
argument in turn.
First, Michaeledes argues that because the dismissal
of the second case for lack of jurisdiction did not specify it
was without prejudice, the rule of lenity requires it be
construed as a dismissal with prejudice. This argument is
without merit. The rule of lenity does not apply because the
dismissal was for lack of jurisdiction and does not involve a
question of statutory interpretation. See State v. Guyton, 135
Hawaiʻi 372, 380, 351 P.3d 1138, 1146 (2015) (“This longstanding
(continued . . .)
“prohibition against double jeopardy is not implicated until jeopardy has
‘attached’” (quoting Serfass v. United States, 420 U.S. 377, 388 (1975))).
As we explained in State v. Quitog, “‘it is generally accepted that in jury
trials, jeopardy attaches when the jury is empaneled and sworn[.]’” 85
Hawai‘i 128, 141, 938 P.2d 559, 572 (1997) (alteration in original) (quoting
State v. Baranco, 77 Hawai‘i 351, 355, 884 P.2d 729, 733 (1994)). Both in the
first case arising from the first charging document and the second case
arising from the second charging document, a jury has not been impaneled or
sworn in.
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precept of statutory interpretation states that ‘[w]here a
criminal statute is ambiguous . . . the statute must be strictly
construed against the government and in favor of the accused.’”
(emphasis added) (ellipses in original) (quoting State v.
Shimabukuro, 100 Hawaiʻi 324, 327, 60 P.3d 274, 277 (2002)).
Second, Michaeledes argues that the circuit court
failed to articulate a basis for its order to dismiss without
prejudice. Michaeledes relies on State v. Estencion, which
requires trial courts to consider various factors and articulate
written reasoning for dismissing a case with or without
prejudice in the speedy trial context under HRPP Rule 48 (2018).
63 Haw. 264, 268-69, 625 P.2d 1040, 1043-44 (1981). Estencion
and its progeny are irrelevant because Michaeledes moved to
dismiss for lack of jurisdiction under HRPP Rule 12(b)(1)
(2018), 12 not under HRPP Rule 48 for a speedy trial violation.
Michaeledes cites no applicable authority for his contention
that trial courts must provide a basis for dismissing a case
without prejudice when that dismissal is for lack of
jurisdiction. Even were Michaeledes to point to such an
12 HRPP Rule 12(b)(1) provides:
(b) Pretrial Motions. Any defense, objection, or
request which is capable of determination without the trial
of the general issue may be raised before trial by motion.
Motions may be written or oral at the discretion of the
judge. The following must be raised prior to trial:
(1) defenses and objections based on defects in the
institution of the prosecution[.]
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authority, it does not appear that a dismissal with prejudice
would be appropriate given the circumstances of this case
because the jurisdictional defect was curable. Put another way,
since the basis for the jurisdictional defect would be
eliminated once the first appeal is resolved, it would make no
sense to preclude the State from returning to court once that
condition had been satisfied.
Third, Michaeledes argues the circuit court violated
his rights under HRPP Rule 43 13 by hearing and ruling on the
State’s Motion to Reopen Hearing despite Michaeledes’s absence.
While HRPP Rule 43 requires the defendant “at pretrial
evidentiary hearings” and “at every stage of the trial,” the
13 HRPP Rule 43 provides in relevant part:
Rule 43. Presence of the Defendant.
(a) Presence required. The defendant shall be
present at the arraignment, at the time of the plea, at
evidentiary pretrial hearings, at every stage of the trial
including the impaneling of the jury and the return of the
verdict, and at the imposition of sentence, except as
otherwise provided by this Rule.
. . .
(c) Presence not required. A defendant need not be
present either physically or by video conference if:
(1) the defendant is a corporation and appears by
counsel; or
(2) the proceeding is a conference or argument upon a
question of law; or
(3) the proceeding is a reduction of sentence under
Rule 35.
(Emphases added).
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defendant’s presence is not required if “the proceeding is a
conference or argument upon a question of law,” as it was here.
V. CONCLUSION
For the foregoing reasons, the circuit court erred in
dismissing Case No. 5CPC-XX-XXXXXXX for lack of jurisdiction.
Accordingly, we reverse: (1) the circuit court’s October 1, 2021
order to the extent it dismissed the case for lack of
jurisdiction; and (2) the circuit court’s October 7, 2021 order
dismissing the case for lack of jurisdiction. The case is
remanded for further proceedings consistent with this opinion.
Rebecca Vogt Like /s/ Mark E. Recktenwald
Tracy J. Murakami
for Plaintiff-Appellee/ /s/ Paula A. Nakayama
Cross-Appellant
/s/ Sabrina S. McKenna
Emmanuel G. Guerrero
for Defendant-Appellant/ /s/ Michael D. Wilson
Cross-Appellee
/s/ Todd W. Eddins
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