Marzan v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
12-OCT-2021
08:07 AM
Dkt. 15 OGMD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
SALDY MARZAN, Petitioner-Appellant, v.
STATE OF HAWAII, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(SPP NO. 1CPN-XX-XXXXXXX)
ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Nakasone, Presiding Judge, Leonard and Hiraoka, JJ.)
Upon consideration of Respondent-Appellee State of
Hawaii's September 15, 2021 Motion to Dismiss for Lack of
Appellate Jurisdiction, the papers in support, the record, and
there being no opposition, it appears that we lack jurisdiction
over self-represented Petitioner-Appellant Saldy Marzan's
(Marzan) appeal, which is premature.
Marzan states that he appeals from "an order
denying/dismissing his Rule 40 Petition under SPP No. 1CPN-
210000018 Filed in this court on 3-14-2021," by the Circuit Court
of the First Circuit (circuit court). However, no such order
appears in the record.
"The right of appeal in a criminal case is purely
statutory and exists only when given by some constitutional or
statutory provision." State v. Poohina, 97 Hawai#i 505, 509, 40
P.3d 907, 911 (2002) (citation and internal quotation marks
omitted). Pursuant to Hawaii Revised Statutes § 641-11 (2016)
and "HRPP [Hawai#i Rules of Penal Procedure] [Rule] 40(h),
appeals from proceedings for post-conviction relief may be made
from a judgment entered in the proceeding[.]" Grattafiori v.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
State, 79 Hawai#i 10, 13, 897 P.2d 937, 940 (1995) (internal
quotation marks and brackets omitted).
Here, on March 14, 2021, in the underlying case, 1CPN-
XX-XXXXXXX, the circuit court clerk electronically filed Marzan's
Petition to Vacate, Set Aside, or Correct Judgment or to Release
Petitioner from Custody, under HRPP Rule 40 (Petition). The
circuit court has not issued an order or judgment disposing of
the Petition, and there is no circuit court ruling that could be
the subject of the appeal.
Therefore, IT IS HEREBY ORDERED that the motion to
dismiss the appeal is granted, and the appeal is dismissed.
IT IS FURTHER ORDERED that all pending motions are
dismissed.
DATED: Honolulu, Hawai#i, October 12, 2021.
/s/ Karen T. Nakasone
Presiding Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
2