Electronically Filed
Supreme Court
SCWC-11-0000602
11-APR-2012
10:18 AM
NO. SCWC-11-0000602
IN THE SUPREME COURT OF THE STATE OF HAWAI'I
STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
vs.
MARIA T. TIMMONS, Petitioner/Defendant-Appellant.
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. CAAP-11-0000602; CASE NO. 1DTA-10-04522)
ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI,
VACATING ICA ORDER DISMISSING APPEAL FOR
LACK OF JURISDICTION, AND REMANDING APPEAL TO ICA
(By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ. and
Circuit Judge Crandall, in place of Duffy, J., recused)
Petitioner/defendant-appellant Maria T. Timmons filed a
timely application for writ of certiorari on March 5, 2012 to
review the intermediate court of appeals' (ICA) January 4, 2012
Order Dismissing Appeal for Lack of Appellate Jurisdiction.
Timmons appealed the district court's August 2, 2011 order
dismissing without prejudice Case No. 1DTA-10-04522. The ICA
concluded that the August 2, 2011 order was not a final decision
appealable pursuant to HRS § 641-12 (Supp. 2011) because the
order dismissing without prejudice is not "a decision on the
merits and does not include a sentence," citing State v. Valiani,
57 Haw. 133, 134, 532 P.2d 75, 76 (1976), United States v. Tsoie,
966 F.2d 1357, 1359 (10th Cir. 1992), and State v. Kilborn, 109
Hawai'i 435, 442, 127 P.3d 95 102 (App. 2005).
HRS § 641-12 authorizes appeals from "all final
decisions and final judgments of district courts in criminal
matters." District court Case No. 1DTA-10-04522 was dismissed by
the district court, without prejudice, by order of August 2,
2011, for failure to commence trial within the six-month period
prescribed by HRPP Rule 48. The August 2, 2011 order terminated
the proceedings in Case No. 1DTA-10-04522. Cf. State v. Kalani,
87 Hawai'i 260, 261-62, 953 P.2d 1358, 1359-60 (1998) (finding
jurisdiction to consider an appeal brought by prosecution under
HRS § 641-13(1), since "a dismissal without prejudice is a final
order -- it terminates the current case") (emphasis in
original)). It is the final decision of the district court that
is appealable by petitioner pursuant to HRS § 641-12. The ICA's
reliance on Valiani, Tsoie and Kilborn was misplaced.
Petitioner's application for writ of certiorari is
accepted. The ICA's January 4, 2012 Order Dismissing Appeal for
Lack of Appellate Jurisdiction is vacated. Petitioner's appeal
is remanded to the ICA for disposition.
DATED: Honolulu, Hawai'i, April 11, 2012.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Simeon R. Acoba, Jr.
/s/ Sabrina S. McKenna
/s/ Virginia L. Crandall
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