State v. Wilborn

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
22-OCT-2021
09:07 AM
Dkt. 15 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 GRANTING MOTION TO DISMISS APPEAL
FOR LACK OF APPELLATE JURISDICTION
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)
Upon consideration of the Motion to Dismiss for Lack of
Appellate Jurisdiction (Motion), filed by Plaintiff-Appellee
State of Hawai#i on October 15, 2021, the papers in support, and
the record, it appears we lack jurisdiction over Defendant-
Appellant Roberta Wilborn's (Wilborn) appeal from Case No. 1CPC-
XX-XXXXXXX because the Circuit Court of the First Circuit Court
(Circuit Court) has not entered a final, appealable order or
judgment and the appeal is premature.
Wilborn appears to appeal from the Circuit Court's
September 22, 2021 Order Granting Motion for Mental Examination
to Determine [Wilborn]'s Fitness to Proceed and Penal
Responsibility. The Circuit Court did not certify the order for
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).
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
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.
Therefore, IT IS HEREBY ORDERED that the Motion is
granted and the appeal is dismissed for lack of appellate
jurisdiction.
IT IS HEREBY FURTHER ORDERED that all pending motions
are dismissed as moot.
DATED: Honolulu, Hawai#i, October 22, 2021.
/s/ Katherine G. Leonard
Presiding Judge
/s/ Keith K. Hiraoka
Associate Judge
/s/ Karen T. Nakasone
Associate Judge
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