APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 04-1-0688)
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
ORDER GRANTING MOTION TO DISMISS APPEAL AND REGARDING RESPONSE TO ORDER TO SHOW CAUSE
(By: Nakamura, C.J., Foley and Ginoza, JJ.)
Upon consideration of the Motion to Dismiss Appeal Pursuant to Hawaii Rules of Appellate Procedure (HRAP) Rule 42(c) filed by William H. Jameson, counsel for Defendant- Appellant Anthony Kassebeer, Jr. (Appellant); the papers in support, and the records and files herein, it appears that:
(1) on June 21, 2010, Appellant filed a notice of appeal from a judgment of conviction and sentence entered in the Circuit Court of the First Circuit; (2) Appellant did not file the statement of jurisdiction or the opening brief; (3) on May 26, 2011, this court issued an order, which provides in relevant part:
IT IS HEREBY ORDERED that Appellant shall file the statement of jurisdiction within ten days from the date of this order and file the opening brief within thirty days from the date of this order. Alternatively, Appellant may file a dismissal of the appeal pursuant to HRAP Rule 42(c).
(4) HRAP Rule 42(c) governs dismissal of appeals in criminal cases and provides:
In a criminal appeal by a defendant, the stipulation or motion for dismissal of the appeal shall be supported by the defendant's affidavit or declaration that reflects a knowing and intelligent understanding of the consequences of the dismissal of the appeal and that the withdrawal is made voluntarily. In circumstances where the defendant cannot be located after a diligent effort, the circumstances of the effort should be set forth in an affidavit or declaration of counsel in support of the stipulation or motion.
(5) the motion to dismiss is not supported by Appellant's declaration, but the declaration of Appellant's counsel,
William H. Jameson, Jr. (Jameson), in support of the motion to dismiss states that Jameson has made numerous efforts to contact Appellant where Appellant resides, and Appellant has failed to respond to Jameson. Therefore,
IT IS HEREBY ORDERED that the Motion to Dismiss Appeal Pursuant to HRAP Rule 42(c) is granted.
IT IS FURTHER ORDERED that no further action shall be taken on the order to show cause issued on May 26, 2011.