State v. Brown

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-DEC-2020
07:52 AM
Dkt. 58 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
JOVAN H. BROWN, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT
KONA DIVISION
(CASE NO. 3DCW-XX-XXXXXXX)
SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, and Wadsworth and Nakasone, JJ.)
Defendant-Appellant Jovan H. Brown (Brown) appeals from
the June 20, 2019 Judgment and Notice of Entry of Judgment (June
2019 Judgment) and August 23, 2019 Amended Judgment and Notice of
Entry of Judgment (August 2019 Judgment), entered by the District
Court of the Third Circuit, Kona Division (District Court).1/ The
District Court convicted Brown of: (1) Criminal Trespass in the
Second Degree, in violation of Hawaii Revised Statutes (HRS)
§ 708-814(1)(b) (Supp. 2018);2/ and (2) Criminal Property Damage
1/
The Honorable Margaret K. Masunaga presided.
2/
HRS § 708-814(1)(b) provides, in relevant part:
(1) A person commits the offense of criminal trespass
in the second degree if:
. . . .
(b) The person enters or remains unlawfully in or
upon commercial premises after a reasonable
warning or request to leave by the owner or
lessee of the commercial premises, the owner's
or lessee's authorized agent, or a police
(continued...)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
in the Fourth Degree, in violation of HRS § 708-823(1) (2014).3/
On appeal, Brown argues that the District Court: (1)
lacked jurisdiction to impose restitution as part of its sentence
on August 23, 2019 because the June 2019 Judgment was a "final
judgment"; and (2) abused its discretion and violated Brown's due
process rights by imposing restitution without sufficient
evidence.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve Brown's points of error as follows:
(1) The June 2019 Judgment set a subsequent hearing
"to determine restitution" and thus expressly indicated that the
District Court might order restitution as part of its sentence.
Accordingly, the June 2019 Judgment was not a final judgment, and
the District Court had jurisdiction to order restitution on
August 23, 2019. See State v. Kilborn, 109 Hawai#i 435, 442, 127
P.3d 95, 102 (App. 2005); HRS § 706-605 (2014 & Supp. 2018).
Brown contends that Kilborn is distinguishable because
the District Court "imposed" its sentence upon entering the June
2019 Judgment. However, this court's holding in Kilborn did not
turn on whether the district court had "imposed" or stayed any
aspect of its sentence before ordering restitution. Kilborn, 109
Hawai#i at 442, 127 P.3d at 102. Rather, this court concluded
that the judgment was not final based on the fact that the
district court "expressly left open the possibility that its
sentence of Kilborn might include an order requiring Kilborn to
pay restitution." Kilborn, 109 Hawai#i at 442, 127 P.3d at 102.
Because the District Court here expressly left open the same
possibility as to Brown, Kilborn controls and the June 2019
2/
(...continued)
officer; provided that this paragraph shall not
apply to any conduct or activity subject to
regulation by the National Labor Relations Act.
3/
HRS § 708-823(1) provides:
(1) A person commits the offense of criminal property
damage in the fourth degree if by means other than fire, the
person intentionally or knowingly damages the property of
another without the other's consent.
2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER
Judgment was not a final judgment.4/
(2) We cannot determine, based on the record, whether
the District Court's restitution award was proper. Specifically,
it appears that in ordering restitution, the District Court
relied on two invoices purported to evidence costs incurred by
the complaining witness, but the receipts were not entered into
evidence or otherwise made part of the record. Accordingly, we
vacate the restitution portion of the August 2019 Judgment and
remand the case for the District Court to hold a new restitution
hearing.
Therefore,
IT IS HEREBY ORDERED that (1) the Judgment and Notice
of Entry of Judgment, entered by the District Court on June 20,
2019, is affirmed, and (2) the portion of the Amended Judgment
and Notice of Entry of Judgment, entered by the District Court on
August 23, 2019, which ordered Brown to pay the restitution
amount is vacated. The case is remanded to the District Court
for further proceedings consistent with this Summary Disposition
Order.
DATED: Honolulu, Hawai#i, December 23, 2020.
On the briefs:
/s/ Keith K. Hiraoka
Sara K. Haley, Presiding Judge
Deputy Public Defender,
for Defendant-Appellant.
/s/ Clyde J. Wadsworth
Leneigha S. Downs, Associate Judge
Deputy Prosecuting Attorney,
County of Hawai#i,
for Plaintiff-Appellee. /s/ Karen T. Nakasone
Associate Judge
4/
To the extent Brown relies on the docket description for the
June 20, 2019 docket entry indicating "Judgment Complete," the entry appears
to be a clerical error. Brown does not cite any authority that a generic
docket description in the Judiciary Information Management System supersedes
or otherwise alters the legal effect of the plain language in the accompanying
written order or judgment, and we have found none.
3