NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
13-JUL-2021
08:06 AM
Dkt. 93 ORD
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
STATE OF HAWAI#I, Plaintiff-Appellee, v.
DAVID T. PREBLE, also known as
David Taofiaualii Preble, Defendant-Appellant
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PC990002363 (CR. NO. 99-2363))
ORDER GRANTING IN PART MOTION FOR CLARIFICATION
(By: Ginoza, C.J., and Hiraoka, and Wadsworth, JJ.)
Upon consideration of the June 24, 2021 Motion for
Clarification (Motion for Clarification) filed by Plaintiff-
Appellee State of Hawai#i (State), which we construe in part as a
motion for reconsideration pursuant to Hawai#i Rules of Appellate
Procedure (HRAP) Rule 40,1/ and the record, it appears that:
(1) On June 16, 2021, this court issued its Memorandum
Opinion in this appeal. The conclusion of the Memorandum
Opinion, starting at the bottom of page 17 and continuing onto
the top of page 18, states in part: "[W]e vacate the Third
Amended Judgment of Conviction and Sentence [(Judgment)], entered
on September 24, 2019, in the Circuit Court of the First Circuit,
solely as to the resentencing of [Defendant-Appellant David]
Preble [(Preble)], and remand for further resentencing
proceedings, including an accurate calculation of Preble's credit
1/
On July 2, 2021, this court issued an Order Suspending Time
Requirement, under which the time in which this court must dispose of the
Motion for Clarification was extended to July 15, 2021.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
for time served, consistent with this Memorandum Opinion and
[State v. ]Thompson[, No. SCWC-XX-XXXXXXX, 2020 WL 2846618 (Haw.
June 1, 2020) (SDO)]."
(2) In the Motion for Clarification, the State asserts:
In State v. Thompson, this Court affirmed the circuit
court's judgment of conviction and sentence. However, on
application for writ of certiorari, the Hawai #i Supreme
Court vacated this Court's judgment on appeal and remanded
the case to the circuit court for an accurate calculation of
Thompson's credit for time served. At no time did the
Hawai#i Supreme Court vacate the circuit court's sentence or
order resentencing. The Hawai#i Supreme Court simply
ordered the circuit court to perform an accurate calculation
of Thompson's credit for time served.
(Footnotes omitted.) Accordingly, the State "ask[s] this Court
to clarify that in this case, as in Thompson, this Court is
affirming the circuit court's judgment of conviction and
sentence, but ordering the circuit court to perform an accurate
calculation of Preble's credit for time served."
(3) The Judgment in this case states in part: "Total
35 years jail with credit and any credit for time served shall be
determined by State Department of Public Safety." For the
reasons stated in the Memorandum Opinion, the Judgment as to
Preble's resentencing thus failed to give Preble credit for the
time he served on his original 2001 sentence, as required under
Thompson. The Judgment was thus properly vacated as to Preble's
resentencing, to the extent the Judgment failed to give Preble
credit for time served on his original sentence. The Memorandum
Opinion was not intended to vacate other aspects of Preble's
resentencing.
Therefore,
IT IS HEREBY ORDERED that the Motion for Clarification
is granted in part.
IT IS FURTHER ORDERED that the last paragraph of the
Memorandum Opinion, starting at the bottom of page 17 and
continuing onto the top of page 18, shall be corrected to read:
For the reasons discussed above, we vacate the Third
Amended Judgment of Conviction and Sentence, entered on
September 24, 2019, in the Circuit Court of the First
Circuit, solely as to the resentencing of Preble, to the
extent the Third Amended Judgment of Conviction and Sentence
failed to give Preble credit for time served on his original
sentence. We remand for further resentencing proceedings,
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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
including an accurate calculation of Preble's credit for
time served, consistent with this Memorandum Opinion and
Thompson.
The Amended Memorandum Opinion is being filed simultaneously.
The Motion for Clarification is denied in all other
respects.
DATED: Honolulu, Hawai#i, July 13, 2021.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Keith K. Hiraoka
Associate Judge
/s/ Clyde J. Wadsworth
Associate Judge
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