FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-JUL-2021
09:38 AM
Dkt. 48 OP
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
–––O0O–––
STATE OF HAWAI#I, Plaintiff-Appellant, v.
ROBERT MAN, also known as
Robert Alop, Defendant-Appellee
NO. CAAP-XX-XXXXXXX
APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
WAHIAWÂ DIVISION
(CASE NO. 1DTA-19-01445)
JULY 19, 2021
LEONARD, PRESIDING JUDGE, AND HIRAOKA AND WADSWORTH, JJ.
OPINION OF THE COURT BY WADSWORTH, J.
On June 2, 2018, Defendant-Appellee Robert Man, also
known as Robert Alop (Man), was issued a citation for the
offenses of Accidents Involving Damage to Vehicle or Property, in
violation of Hawaii Revised Statutes (HRS) § 291C-13 (Supp.
2017),1/ and No Motor Vehicle Insurance, in violation of HRS
§ 431:10C-104 (2005) (Citation). Several days later, Plaintiff-
1/
HRS § 291C-13 provides:
Accidents involving damage to vehicle or property.
The driver of any vehicle involved in an accident resulting
only in damage to a vehicle or other property that is driven
or attended by any person shall immediately stop such
vehicle at the scene of the accident or as close thereto as
possible, but shall forthwith return to, and in every event
shall remain at, the scene of the accident until the driver
has fulfilled the requirements of section 291C-14. Every
such stop shall be made without obstructing traffic more
than is necessary. For any violation under this section, a
surcharge of up to $100 may be imposed, in addition to other
penalties, which shall be deposited into the trauma system
special fund.
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Appellant State of Hawai#i (State) filed the Citation in the
District Court of the First Circuit, Wahiawa Division (District
Court), initiating a citation proceeding (Citation Proceeding).
Over the next twelve weeks, both charges identified in the
Citation were dismissed on the State's motion, prior to any in-
court oral recitation of the charges. The charge of Accidents
Involving Damage to Vehicle or Property was dismissed without
prejudice.
On May 6, 2019, Man was charged by complaint with
Operating a Vehicle Under the Influence of an Intoxicant (OVUII),
in violation of HRS § 291E-61(a)(1) (Supp. 2017),2/ and Accidents
Involving Damage to Vehicle or Property, in connection with the
same incident that had led to the Citation. Trial was set for
September 26, 2019. Before trial began, Man filed a motion to
dismiss the case on the ground that trial had not commenced
within six months of "the filing of the charge" — which Man
asserted was the issuance of the Citation — in violation of
Hawai#i Rules of Penal Procedure (HRPP) Rule 483/ (Motion to
Dismiss). The District Court granted the motion and dismissed
the case with prejudice.
The State appeals from the Notice of Entry of Judgment
and/or Order and Plea/Judgment (Judgment), filed on November 21,
2/
HRS § 291E-61(a)(1) provides, in relevant part:
(a) A person commits the offense of operating a
vehicle under the influence of an intoxicant if the person
operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an
amount sufficient to impair the person's normal
mental faculties or ability to care for the
person and guard against casualty[.]
3/
HRPP Rule 48 provides, in relevant part:
(b) . . . Except in the case of traffic offenses that
are not punishable by imprisonment, the court shall, on
motion of the defendant, dismiss the charge, with or without
prejudice in its discretion, if trial is not commenced
within 6 months:
(1) from the date of arrest if bail is set or from the
filing of the charge, whichever is sooner, on any offense
based on the same conduct or arising from the same criminal
episode for which the arrest or charge was made[.]
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2019, in the District Court.4/ The State contends that the
District Court: (1) erred in granting Man's Motion to Dismiss,
because HRPP Rule 48 was not violated; and (2) abused its
discretion in dismissing the case with prejudice.
We hold that the filing of the Citation in the District
Court constituted "the filing of the charge" for purposes of
starting the HRPP Rule 48 clock. Because trial did not commence
within 180-days of the filing of the Citation,5/ as properly
computed under HRPP Rule 48, the District Court did not err in
granting the Motion to Dismiss. We also conclude that the
District Court did not abuse its discretion in dismissing the two
pending charges – OVUII and Accidents Involving Damage to Vehicle
or Property – with prejudice. Accordingly, we affirm the
Judgment.
I. Procedural Background
A. Citation No. 1DTC-18-064625
On June 2, 2018, Man was issued Citation No. 1DTC-18-
064625, identified above as the Citation, in lieu of arrest for
the offenses of Accidents Involving Damage to Vehicle or Property
(Citation Count 1) and No Motor Vehicle Insurance (Citation Count
2). The Citation stemmed from an incident in which Man, as the
purported driver of a vehicle involved in an accident that
resulted in damage to another vehicle or other property,
allegedly left the scene of the accident. The Citation, which
was signed by the complaining officer, included a "complaint"
that identified the "law(s) violated & traffic crimes committed"
and a "summons" that instructed Man to appear before the District
Court on July 5, 2018 "to answer the charge(s)."
On June 7, 2018, the State filed the Citation in the
District Court, initiating proceeding No. 1DTC-18-064625,
identified above as the Citation Proceeding.
4/
The Honorable Summer Kupau-Odo presided.
5/
"The six-month period under HRPP Rule 48 is equivalent to 180
days." State v. Alkire, 148 Hawai#i 73, 86, 468 P.3d 87, 100 (2020) (quoting
State v. Hernane, 145 Hawai#i 444, 450, 454 P.3d 385, 391 (2019)).
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At Man's arraignment and plea hearing on July 5, 2018,
Man was not present and was represented by counsel. The State
orally moved to continue the hearing "for further investigation
as to [Citation] Count 1." The District Court granted the
State's oral motion to continue and set Man's arraignment and
plea as to Citation Count 1 for August 30, 2018. The State
orally moved for nolle prosequi (voluntary dismissal) of Citation
Count 2, for "[v]alid proof of insurance shown." The District
Court granted the State's oral motion and dismissed Citation
Count 2.
At Man's continued arraignment and plea hearing on
August 30, 2018, Man was not present and was represented by
counsel. The State orally moved for nolle prosequi of Citation
Count 1. The District Court granted the State's oral motion and
dismissed Citation Count 1 without prejudice, as reflected in the
August 30, 2018 Notice of Entry of Judgment and/or Order and
Plea/Judgment, entered in the Citation Proceeding.
B. Case No. 1DTA-19-01445
On May 6, 2019, Man was charged by complaint with OVUII
and Accidents Involving Damage to Vehicle or Property
(Complaint), in connection with the incident that occurred on
June 2, 2018. On July 29, 2019, Man was served with a copy of
the Complaint and a Penal Summons, which set Man's court date for
August 15, 2019.
At Man's August 15, 2019 arraignment and plea hearing,
Man's counsel waived reading of the charges, entered a not guilty
plea on behalf of Man, and requested that the matter be set for
trial "in normal course on a Thursday." The District Court set
trial for September 26, 2019.
On September 26, 2019, defense counsel stated that the
defense was attempting to locate a video related to the June 2,
2018 incident and would be filing a motion to compel. Defense
counsel also stated that the defense believed there was an HRPP
Rule 48 violation in the case and requested a continuance for an
opportunity to brief the issue and file the motion to compel.
The State objected to the continuance, indicating that it was
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ready to proceed to trial. The District Court granted the
defense's request for a continuance and set the matter for status
or hearing on the defense's motions on November 14, 2019.
On October 15, 2019, Man filed the Motion to Dismiss.
Man argued that 90 days – from June 2, 2018, when the Citation
was issued, to August 30, 2018, when Citation Count 1 was
dismissed – were chargeable to the State for Rule 48 purposes.6/
Man further argued that an additional 143 days – from May 6,
2019, when the Complaint was filed, to September 26, 2019, when
trial was set to begin – were also chargeable to the State for
Rule 48 purposes. Thus, Man contended, 233 days elapsed prior to
trial, in violation of HRPP Rule 48's 180-day limit.
On October 18, 2019, the State filed its memorandum in
opposition to the Motion to Dismiss. The State stipulated to the
timeline of events set out by Man, but maintained that HRPP Rule
48 had not been violated. Specifically, the State argued that:
(1) the issuance of the Citation did not constitute "the filing
of the charge," HRPP Rule 48(b)(1), for purposes of starting the
Rule 48 clock; (2) "the filing of the charge was not perfected
unless and until the defendant both received a citation and there
was an in[-]court 'oral recitation of the essential facts
constituting the offense charged[,]" HRPP Rule 7(a) (quoted
infra); and (3) because no in-court oral recitation occurred in
the Citation Proceeding, the HRPP Rule 48 clock did not start
running until May 6, 2019, when the Complaint and Penal Summons
were filed.
At the hearing of the Motion to Dismiss on November 21,
2019, the District Court took judicial notice of the records in
7/
the Citation Proceeding. The District Court noted that the
Citation had been filed on June 7, 2018. The court also observed
that the language of the Citation stated, among other things,
that it: (1) was a "complaint"; (2) "charges you with committing
one or more traffic crimes"; and (3) "summons you to appear
6/
The period from June 2, 2018, to August 30, 2018, is actually 89
days. See HRPP Rule 45.
7/
The November 14, 2019 hearing was continued to November 21, 2019.
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before the District Court . . . to answer to the charge(s) on the
date and at the time and location designated in the Summons on
the front of this Citation." The District Court concluded that
the "[C]itation [was] the charge . . . given to the defendant,"
and "the filing of the charge occurred on June 2nd, 2018, when
Mr. Man was issued this [C]itation and summoned to appear in
court[,]" thus triggering the HRPP Rule 48 clock. The District
Court adopted Man's argument that 233 days had elapsed for
purposes of HRPP Rule 48, and found that both charges in the
Complaint were based on the same conduct or arose from the same
episode. The District Court therefore granted the Motion to
Dismiss. The court further decided to dismiss the charges with
prejudice after considering and stating the effect of the factors
identified in State v. Estencion, 63 Haw. 264, 625 P.2d 1040
(1981).
On November 21, 2019, the District Court entered the
Judgment, dismissing the charges with prejudice.
II. Discussion
A. Dismissal for Violation of HRPP Rule 48
The parties do not dispute the District Court's
conclusion that the 143-day period from May 6, 2019, when the
Complaint was filed, to September 26, 2019, when trial was set to
begin, was chargeable to the State for HRPP Rule 48 purposes.
The issue on appeal is whether the District Court erred in
concluding that the 89-day period (see supra note 6) from June 2,
2018, when the Citation was issued, to August 30, 2018, when
Citation Count 1 was dismissed, was chargeable to the State for
HRPP Rule 48 purposes.
"HRPP [Rule] 48 is intended not only 'to ensure speedy
trial for criminal defendants,' . . . but also 'to relieve
congestion in the trial court, to promptly process all cases
reaching the courts[,] and to advance the efficiency of the
criminal justice process.'" State v. Choy Foo, 142 Hawai#i 65,
72, 414 P.3d 117, 124 (2018) (alterations in original) (quoting
State v. Hoey, 77 Hawai#i 17, 29, 881 P.2d 504, 516 (1994)); see
also Hernane, 145 Hawai#i at 450, 454 P.3d at 391 ("Speedy trial
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rules are intended to prevent unreasonable delay in the
determination of criminal actions that subvert the public good
and disgrace the administration of justice." (internal quotation
marks and brackets omitted)). To accomplish this end, HRPP Rule
48(b) requires the trial court, on motion of the defendant, "to
dismiss the charge . . . 'if trial is not commenced within 6
months[,]'" i.e., 180 days (see supra note 5), "of a relevant
triggering date." Choy Foo, 142 Hawai#i at 72, 414 P.3d at 124.
Here, trial was required to commence within six months
"from the filing of the charge." HRPP Rule 48(b)(1). Because
HRPP Rule 48 is a rule promulgated by the supreme court,
principles of statutory construction apply in determining the
meaning of this phrase. See Choy Foo, 142 Hawai#i at 72, 414
P.3d at 124 (citing Gap v. Puna Geothermal Venture, 106 Hawai#i
325, 331, 104 P.3d 912, 918 (2004)); State v. Carlton, 146
Hawai#i 16, 22, 455 P.3d 356, 362 (2019) (quoting State v. Lau,
78 Hawai#i 54, 58, 890 P.2d 291, 295 (1995)). Under these well-
settled principles:
We first examine the language of the statute itself. If the
language is plain and unambiguous, we must give effect to
its plain and obvious meaning. Also, implicit in statutory
construction is our foremost obligation to ascertain and
give effect to the intention of the legislature, which is
obtained primarily from the language of the statute itself.
Finally, when there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an expression used in a
statute, an ambiguity exists. When there is ambiguity, the
meaning of ambiguous words may be sought by examining the
context or resorting to extrinsic aids to determine
legislative intent.
Carlton, 146 Hawai#i at 22, 455 P.3d at 362 (citations omitted).
In examining the language of HRPP Rule 48, we note that
the rule does not define or further describe "the filing of the
charge."
To effectuate a statute's plain language, its words "must
'be taken in their ordinary and familiar signification, and
regard is to be had to their general and popular use.'" See
State v. Guyton, 135 Hawai#i 372, 378, 351 P.3d 1138, 1144
(2015) (quoting In re Taxes of Johnson, 44 Haw. 519, 530,
356 P.2d 1028, 1034 (1960)); see also HRS § 1–14 (2009). "In
conducting a plain meaning analysis, 'this court may resort
to legal or other well accepted dictionaries as one way to
determine the ordinary meaning of certain terms not
statutorily defined.'" Guyton, 135 Hawai#i at 378, 351 P.3d
at 1144 (quoting State v. Pali, 129 Hawai#i 363, 370, 300
P.3d 1022, 1029 (2013)).
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Wells Fargo Bank, N.A. v. Omiya, 142 Hawai#i 439, 449–50, 420
P.3d 370, 380–81 (2018).
Black's Law Dictionary defines "charge" as "[a] formal
accusation of an offense as a preliminary step to prosecution[.]"
Black's Law Dictionary (11th ed. 2019). In addition, the supreme
court has stated that the plain meaning of "file" or "filed," as
used in HRPP Rule 48(a), "indicates the submission of a written
document." State v. Visitin, 143 Hawai#i 143, 152, 426 P.3d 367,
376 (2018) (citing Hawai#i Rules of Electronic Filing (HREF)
Rules 1.1, 1.4 (2010) (defining "conventionally file" and
"electronic filing" to mean "the submission of paper documents
and physical exhibits to the clerk for filing in the court
record" and "the submission of documents by authorized [Judiciary
Electronic Filing Service and System] Users for docketing and
storage in [the Judiciary Information Management System],"
respectively); HRPP Rule 2.3 (2012) (cross-referencing the HREF
for definitions)). Based on these definitions, "the filing of
the charge" can be construed to mean the submission to the court
clerk of a written document containing a formal accusation of an
offense as a preliminary step to prosecution.
To the extent there is ambiguity in the phrase "the
filing of the charge," the State urges us to examine HRPP Rule
48(b) in the context of HRPP Rule 7(a), which according to the
State, "spells out [what] constitutes the charge against a
defendant[.]" We may do so under the canon of construction that
"statutes that are in pari materia may be construed together."
Omiya, 142 Hawai#i at 450, 420 P.3d at 381 (quoting State v.
Kamana#o, 118 Hawai#i 210, 218, 188 P.3d 724, 732 (2008)); see id.
("[L]aws in pari materia, or upon the same subject matter, shall
be construed with reference to each other. What is clear in one
statute may be called upon in aid to explain what is doubtful in
another." (quoting Kamana#o, 118 Hawai#i at 218, 188 P.3d at
732)); see also HRS § 1-16 (2009).
HRPP Rule 7(a) provides:
(a) Use of indictment, information, or complaint. The
charge against a defendant is an indictment, a superseding
indictment, an information, or a complaint filed in court,
provided that, in any case where a defendant is accused of
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an offense that is subject to a maximum sentence of less
than 6 months in prison (other than Operating a Vehicle
Under the Influence of an Intoxicant) and is issued a
citation in lieu of physical arrest pursuant to Section
803-6(b) of the [HRS] and summoned to appear in court, the
citation and an oral recitation of the essential facts
constituting the offense charged as set forth in Rule
5(b)(1), shall be deemed the complaint, notwithstanding any
waiver of the recitation. The prosecutor's signature upon
the citation shall not be required.
(Emphases added.)
In turn, HRPP Rule 5(b)(1) provides, in relevant part:
Offenses other than felony.
(1) ARRAIGNMENT. In the district court, if the
offense charged against the defendant is other than a
felony, the complaint shall be filed and proceedings shall
be had in accordance with this section (b). . . . If a
defendant is issued a citation in lieu of physical arrest
pursuant to Section 803–6(b) of the [HRS] and summoned to be
orally charged as authorized by Rule 7(a) of these rules, a
copy of the citation shall be filed and proceedings shall be
had in accordance with this section (b). . . . When the
offense is charged by a citation and the defendant is
summoned to be orally charged, arraignment shall be in open
court or by video conference when permitted by Rule 43. The
arraignment shall consist of a recitation of the essential
facts constituting the offense charged to the defendant and
calling upon the defendant to plead thereto. The defendant
may waive the reading of the complaint or the recitation of
the essential facts constituting the offense charged at
arraignment, provided that, in any case where a defendant is
summoned to be orally charged by a citation as authorized by
Rule 7(a), the recitation of the essential facts
constituting the offense charged shall be made prior to the
commencement of trial or entry of a guilty or no contest
plea.
The State asserts that Man was subject to the charging
procedure outlined in HRPP Rule 7(a).8/ Therefore, the State
argues, "'the filing of the charge' was not perfected unless
[Man] both received the citation and there was an in[-]court
'oral recitation of the essential facts constituting the offense
charged[.]' HRPP Rule 7(a)." The State continues:
Here, although [Man] was issued a citation in Citation No.
1DTC-18-064625, there was never an oral recitation of the
essential facts constituting the offense charged before the
State moved to nolle prosequi the count on August 30, 2018.
Consequently, [Man] was not charged with the violation of
HRS Section 291C-13 until the filing of the Complaint and
Penal Summons in Case No. 1DTA-19-01445 on May 6, 2019.
8/
This assertion, which Man does not dispute, is correct. Man was
issued the Citation in lieu of arrest for a violation of HRS § 291C-13. Under
HRS § 291C-161(b), a violation of HRS § 291C-13, as a first offense, carries a
maximum penalty of a $200 fine and up to ten days of imprisonment.
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Man, on the other hand, contends that the Citation that
initiated the Citation Proceeding was "[the] charge for HRPP
[R]ule 48 purposes, because the citation [was] labeled the
complaint[.]" Man further argues:
All HRPP [R]ule 7[(a)] does is provide that if there is an
oral charge, the oral charge plus the citation becomes a
superseding charge. If there is no warrant the citation
remains the case[;] [R]ule 7[(a)] does not limit the
definition of the charge in all situations, only in the
situation where there is no amendment.
Otherwise, the state could avoid the consequences of
HRPP [R]ule 48(b)(1) by repeatedly citing someone [and]
preventing him from being orally charged and therefore
dismissing the citations before arraignment. This would
create an unfair and absurd situation which the drafter
could never [have] intended.
In examining HRPP Rule 7(a), we recognize that it
describes the "charge" against a defendant as "an indictment, a
superseding indictment, an information, or a complaint filed in
court," all of which must ordinarily be signed by the prosecutor.
See HRPP Rule 7(d); State v. Knoeppel, 71 Haw. 168, 171, 785 P.2d
1322, 1332 (1990) (ruling that "the plain and unambiguous
language" of then-Rule 7(d) mandated that a criminal complaint be
signed by the prosecutor). Rule 7(a)'s description of the
"charge," however, is subject to the proviso that in applicable
circumstances, "the citation and an oral recitation of the
essential facts constituting the offense charged as set forth in
Rule 5(b)(1), shall be deemed the complaint." HRPP Rule 7(a)
(emphases added). In such circumstances, the prosecutor's
signature on the citation is not required. Id. HRPP Rule 7(a)
thus serves the purpose of the charging process, which is to
"sufficiently apprise the defendant of what he or she must be
prepared to meet." State v. Sprattling, 99 Hawai#i 312, 317–18,
55 P.3d 276, 281–82 (2002) (internal quotation marks and brackets
omitted) (quoting State v. Merino, 81 Hawai#i 198, 212, 915 P.2d
672, 686 (1996)); see State v. Mita, 124 Hawai#i 385, 390, 245
P.3d 458, 463 (2010).
In Mita, the supreme court ruled that a citation and
oral charge, when considered together pursuant to HRPP Rule 7(a),
were sufficient under the circumstances to give the defendant
fair notice of the charged offense. 124 Hawai#i at 386, 393, 245
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P.3d at 459, 466. There, the defendant was charged with Animal
Nuisance in violation of Revised Ordinances of Honolulu (ROH)
§ 7–2.3 (1990 & Supp. No. 6, 2–05). Id. at 385, 245 P.3d at 458.
The defendant was originally issued a citation indicating that
she committed the offense by owning, harboring, or keeping two
dogs that were barking, and prior to the start of trial, the
State also orally charged her by using language that tracked the
provisions of ROH § 7–2.3. Id. at 385-86, 245 P.3d at 458-59.
The court concluded that "the charge against [the defendant],
comprised of both the citation and oral charge, provided her with
fair notice of the offense of animal nuisance." Id. at 393, 245
P.3d at 466.
Thus, the citation in Mita was considered to be part of
the charge against the defendant pursuant to HRPP Rule 7(a).
This reading of HRPP Rule 7(a) is consistent with the plain
language of HRPP Rule 5(b), which sets out the procedure for
arraignment "[w]hen the offense is charged by a citation and the
defendant is summoned to be orally charged[.]" (Emphasis added.)
To further the purpose of the charging process in such
circumstances, i.e., to provide the accused with fair notice of
the essential elements of the cited offense, HRPP Rule 5(b)
requires that the arraignment include "a recitation of the
essential facts constituting the offense charged to the
defendant[.]" That an oral charge is required, however, does not
strip a citation that contains features of a charging instrument
of those features. Otherwise, a defendant who waived the oral
recitation would not be considered charged. Cf. HRPP Rule 7(a)
("the citation and an oral recitation of the essential facts
constituting the offense charged . . . shall be deemed the
complaint, notwithstanding any waiver of the recitation").
In State v. Ayres, we recently recognized that
citations similar to the one at issue here "contained features of
a charging instrument, probable cause affidavit, and a police
report." No. CAAP-XX-XXXXXXX, 2021 WL 1626628, at *4 (Haw. App.
Apr. 27, 2021) (SDO). Like the citations in Ayres, the Citation
here is entitled "Complaint," and includes the citing officer's
sworn statement of the "Defendant['s]" identifying information,
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"Vehicle Information," "Law(s) Violated & Traffic Crimes
Committed," "Details Regarding The Offense(s) Charged," both the
complaining officer's and the "Defendant's" signatures, and a
"Summons" stating the District Court's location, and the date and
time for the "Defendant's" court appearance. See id. The
Citation also includes the following language:
This Citation for the Traffic Crime(s) Arrest (Citation)
charges you with committing one or more traffic crimes
. . . . This Citation summons you to appear before the
District Court of the First Circuit to answer to the
charge(s) on the date and at the time and location
designated in the Summons on the front of this Citation.
Failure to appear in court as summoned may result in your
arrest for other offenses and/or imposition of additional
penalties, including fines, court costs, fees, and
imprisonment.
. . . .
. . . If you are not present in the courtroom when
your case is called, a bench warrant for your arrest
(for contempt of court, failure to appear, or other
charges) may be issued . . . .
(Emphases added.)
In addition, on June 7, 2018, the State filed the
Citation in the District Court, initiating the Citation
Proceeding. During the course of that proceeding, the State
initially moved for nolle prosequi of Citation Count 2, which the
District Court dismissed. If "Count 2" was not a charge, it is
unclear what was dismissed. Eventually, the State moved for
nolle prosequi of Citation Count 1, which the District Court
dismissed "without prejudice." Thus, both Citation Counts 1 and
2 appear to have been treated by the State and the District Court
as charges.
On this record, we conclude that the filing of the
Citation in the District Court on June 7, 2018, constituted the
filing of the charge for purposes of starting the HRPP Rule 48
clock. Based on the plain meaning of the phrase "the filing of
the charge," the filing of the Citation under these circumstances
constituted the submission to the court clerk of a written
document containing a formal accusation of an offense as a
preliminary step to prosecution. Our reading of the disputed
phrase is also consistent with HRPP Rule 7(a), as construed by
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the supreme court in Mita, which considered the charge in that
case to include the citation that was issued to the defendant.
The State argues that the filing of the charge is not
"perfected" under HRPP Rule 7(a) without an oral recitation of
the essential facts constituting the offense charged. However,
HRPP Rule 48(b) does not require that the charge be "perfected";
it merely requires that the charge be filed. Here, the Citation,
which identified two offenses charged against Man, was a written
document filed in the District Court. In contrast, an "oral
recitation" is not "filed" within the ordinary meaning of that
term for purposes of HRPP Rule 48. See Visitin, 143 Hawai#i at
152, 426 P.3d at 376. Based on the plain language of HRPP Rule
48(b), the Rule 48 clock began to run when the Citation was
filed, even though there was no later, in-court oral recitation
of the charges.
Our reading of the disputed phrase also furthers the
policy interests that Rule 48 seeks to effectuate. These
interests include, among others, "reliev[ing] congestion in the
trial court," "advanc[ing] the efficiency of the criminal justice
process, "minimiz[ing] anxiety and concern of the accused[,]" and
"limit[ing] the possibility that the defense will be impaired."
Alkire, 148 Hawai#i at 87, 468 P.3d at 101 (quoting State v.
Fukuoka, 141 Hawai#i 48, 62-63, 404 P.3d 314, 328-29 (2017);
State v. Lau, 78 Hawai#i 54, 64, 890 P.2d 291, 301 (1995)).
Accordingly, the 84-day period from June 7, 2018, when
the Citation was filed, to August 30, 2018, when Citation Count 1
was dismissed, was chargeable to the State for HRPP Rule 48
purposes. The 143-day period from May 6, 2019, to September 26,
2019, was also chargeable to the State for HRPP Rule 48 purposes.
Thus, 227 days elapsed prior to the trial date, in violation of
HRPP Rule 48's 180-day limit, and the District Court did not err
in granting the Motion to Dismiss.9/
9/
However, the District Court did err in calculating the total
elapsed time as 233 days.
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B. Dismissal With Prejudice
The State contends that the District Court abused its
discretion in dismissing the charges against Man with prejudice
rather than without prejudice. More specifically, the State
argues that the District Court misapplied the second and third
Estencion factors, and that when properly evaluated, all three
Estencion factors weigh in favor of dismissal without prejudice.
HRPP Rule 48(b) provides, in relevant part:
(b) By Court. Except in the case of traffic offenses
that are not punishable by imprisonment, the court shall, on
motion of the defendant, dismiss the charge, with or without
prejudice in its discretion, if trial is not commenced
within six months[.]
When a trial court dismisses a criminal case for
violation of HRPP Rule 48, its decision to dismiss with or
without prejudice is reviewed for abuse of discretion. Fukuoka,
141 Hawai#i at 55, 404 P.3d at 321.
In determining whether to dismiss the case with or without
prejudice, "the court shall consider, among others, each of
the following factors: the seriousness of the offense; the
facts and the circumstances of the case which led to the
dismissal; and the impact of a reprosecution on the
administration of [HRPP Rule 48] and on the administration
of justice."
Id. at 55-56, 404 P.3d at 321-22 (quoting Estencion, 63 Haw. at
269, 625 P.2d at 1044). "Although not set forth as one of the
three enumerated factors, 'prejudice to the defendant may be a
relevant consideration in the trial court's decision to dismiss
with or without prejudice' under HRPP Rule 48." Id. at 56, 404
P.3d at 322 (quoting State v. Coyaso, 73 Haw. 352, 357, 833 P.2d
66, 69 (1992)). "[T]he trial court may consider other factors it
finds to be relevant to the case before it[.]" Id. (quoting
Coyaso, 73 Haw. at 357, 833 P.2d at 69).
Here, the District Court dismissed the charges of OVUII
and Accidents Involving Damage to Vehicle or Property for
violation of Rule 48. The court made the following oral findings
in dismissing these charges with prejudice:
So in weighing the Estencion factors, I agree with the
State. I mean, both of these charges, and then indeed
coupled, they're serious, okay, and the first factor weighs
in the State's favor.
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Second factor and third factors I'm finding weigh in
[Man's] favor, because no reason has been given for the
delay in recharging Mr. Man. So, again, it's about -- looks
like a period of eight months from when the State . . .
requested the Court dismiss, nolle prosequi, and even after
three months of the case being on the court docket and the
Court allowing the State more time to further investigate.
So, again, looking at the administration of justice
and the policies behind [HRPP] Rule 48, which includes
efficiently managing and resolving cases, the dismissal will
be with prejudice.
(Underscoring added.)
The District Court's oral findings show that it
considered each of the Estencion factors and explained the effect
of the factors on the court's reasoning to dismiss the charges
with prejudice. See Fukuoka, 141 Hawai#i at 56, 404 P.3d at 322.
In particular, the court considered the State's unexplained
eight-month delay in filing the Complaint in the present case
after the remaining count in the Citation Proceeding was
dismissed on the State's motion. This followed a nearly three-
month delay in the Citation Proceeding while the State further
investigated the remaining count. The court expressly tied these
actions to the administration of justice and the policy interests
in efficiently managing and resolving cases. On this record, we
cannot conclude that the District Court abused its discretion in
weighing the relevant factors in deciding to dismiss the case
with prejudice.
III. Conclusion
For the reasons discussed above, we affirm the Notice
of Entry of Judgment and/or Order and Plea/Judgment, filed on
November 21, 2019, in the District Court of the First Circuit,
Wahiawâ Division.
On the briefs:
Stephen K. Tsushima, /s/ Katherine G. Leonard
Deputy Prosecuting Attorney,
City & County of Honolulu,
for Plaintiff-Appellant /s/ Keith K. Hiraoka
R. Patrick McPherson
for Defendant-Appellee /s/ Clyde J. Wadsworth
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