NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-MAY-2022
08:01 AM
Dkt. 121 ODSLJ
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
BRYAN SUITT, Petitioner-Appellant,
v.
STATE OF HAWAI#I, Respondent-Appellee
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1PR161000011)
ORDER
(By: Ginoza, Chief Judge, Leonard and Hiraoka, JJ.)
Upon review of the record, it appears that we lack
appellate jurisdiction over Petitioner-Appellant Bryan Suitt's
(Suitt) appeal from the Circuit Court of the First Circuit's
(circuit court) April 13, 2020 "Amended Findings of Fact,
Conclusions of Law and Order Granting in Part and Denying in Part
Petition to Vacate, Set Aside, or Correct Judgment or to Release
Petitioner from Custody" (Amended Order) because the Amended
Order was not a final appealable order and Suitt did not timely
appeal from a final appealable order.
The Amended Order is not final and appealable because
it does not resolve all of the issues Suitt raised in his May 25,
2016 "Petition to Vacate, Set Aside, or Correct Judgment or to
Release Petitioner From Custody," under Rule 40 of the Hawai#i
Rules of Penal Procedure (HRPP), and amendments thereto
(collectively, Amended Petition). The Amended Order denies
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Grounds 1, 10-23, 27-30, 32-38, 40-42, and 44-53, but grants a
hearing on Grounds 2-9, 24-26, 31, 39, and 43, relating to a
determination by the Hawai#i Paroling Authority made at Suitt's
minimum-term hearing and ineffective assistance of counsel at the
minimum-term hearing. See Grattafiori v. State, 79 Hawai#i 10,
13, 897 P.2d 937, 940 (1995) ("pursuant to [Hawai#i Rules of
Appellate Procedure (HRAP)] Rule 4(b), an appeal from an order
denying post-conviction relief must either be filed within thirty
days after the entry of the order denying the HRPP Rule 40
petition or, in the alternative, after the announcement but
before the entry of the order"); Familian Nw., Inc. v. Cent. Pac.
Boiler & Piping, Ltd., 68 Haw. 368, 369, 714 P.2d 936, 937
(1986). See also Frank v. State, No. CAAP-XX-XXXXXXX, 2012 WL
5990296, at *1 (Nov. 20, 2012) (order dismissing appeal for lack
of appellate jurisdiction because the appeal was from an
interlocutory order that resolved some, but not all, of the
issues raised in an HRPP Rule 40 petition).
Because the notice of appeal is defective as to the
Amended Order, the circuit court retained jurisdiction to issue
its May 20, 2020 "Order Dismissing Remaining Grounds of [Amended
Petition] and Vacating Hearing Set for 5/26/20" (Order Dismissing
Remaining Grounds). See State v. Ontiveros, 82 Hawai#i 446, 449,
923 P.2d 388, 391 (1996). The Order Dismissing Remaining Grounds
finally resolved all grounds in the Amended Petition because it
dismissed the remaining Grounds 2-9, 24-26, 31, 39, and 43.
However, Suitt filed the notice of appeal before the circuit
court issued the Order Dismissing Remaining Grounds, and the
court may not deem the premature notice of appeal as having been
filed immediately after issuance of the Order Dismissing
Remaining Grounds, under HRAP Rule 4(b)(4), because there is no
indication in the record that the circuit court announced its
decision to dismiss the remaining claims in the Amended Petition
before Suitt filed the notice of appeal. See Grattafiori, 79
Hawai#i at 13, 897 P.2d at 940.
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In an appeal from a circuit-court proceeding involving
an HRPP Rule 40 petition for post-conviction relief,
we have permitted belated appeals under two sets of
circumstances, namely, when (1) defense counsel has
inexcusably or ineffectively failed to pursue a defendant's
appeal from a criminal conviction in the first instance, or
(2) the lower court's decision was unannounced and no notice
of the entry of judgment was ever provided.
Grattafiori, 79 Hawai#i at 13–14, 897 P.2d at 940–41 (citation
omitted). However, neither exception applies to the instant
case.
"As a general rule, compliance with the requirement of
the timely filing of a notice of appeal is jurisdictional, and we
must dismiss an appeal on our motion if we lack jurisdiction."
Id. at 13, 897 P.2d at 940 (citations, internal quotation marks
and brackets omitted).
Therefore, IT IS HEREBY ORDERED that the appeal is
dismissed.
DATED: Honolulu, Hawai#i, May 31, 2022.
/s/ Lisa M. Ginoza
Chief Judge
/s/ Katherine G. Leonard
Associate Judge
/s/ Keith K. Hiraoka
Associate Judge
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