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Reed v. Hawall Paroling Authority

Intermediate Court of Appeals of Hawaii

August 1, 2013

JOSHUA REED, Petitioner-Appellant,
v.
HAWAII PAROLING AUTHORITY and JAMES HIRANO, in his official capacity as the Warden of the Maui Community Correctional Center, Respondents-Appellees

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT (S.P.P. NO. 13-1-001) (CR. NO. 04-1-0319)

Nakamura, Chief Judge, Foley and Reifurth, JJ.

ORDER GRANTING MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION

Upon review of (1) Respondent-Appellees Hawaii Paroling Authority and James Hirano's (Appellees Hawaii Paroling Authority and Hirano) July 2, 2013 motion to dismiss appellate court case number CAAP-13-0001599 for lack of appellate jurisdiction, (2) Petitioner-Appellant Joshua Reed's (Appellant Reed) July 3, 2013 memorandum in opposition to Appellees Hawaii Paroling Authority and Hirano's July 2, 2013 motion to dismiss appellate court case number CAAP-13-0001599 for lack of appellate jurisdiction, and (3) the documents in the appellate pleadings index for appellate court case number CAAP-13-0001599, it appears that we lack appellate jurisdiction over Appellant Reed's appeal from the Honorable Glenn S. Hara's May 21, 2013 order dismissing Appellant Reed's petition for post-conviction relief pursuant to Rule 40 of the Hawaii Rules of Penal Procedure (HRPP) because Appellant Reed's June 24, 2013 notice of appeal is untimely under Rule 4(b) (1) of the Hawaii Rules of Appellate Procedure (HRAP) .

"The right of appeal in a criminal case is purely statutory and exists only when given by some constitutional or statutory provision." State v. Poohina, 97 Hawaii 505, 509, 40 P.3d 907, 911 (2002) (citation and internal quotation marks omitted). "In a circuit court criminal case, a defendant may appeal from the judgment of the circuit court, see HRS § 641-11 (1993), from a certified interlocutory order, see HRS § 641-17 (1993), or from an interlocutory order denying a motion to dismiss based on double jeopardy." State v. Kealaiki, 95 Hawaii 309, 312, 22 P.3d 588, 591 (2001) (citation omitted). Pursuant to HRS § 641-11 (Supp. 2012) and "HRPP Rule 40(h), appeals from proceedings for post-conviction relief may be made from a judgment entered in the proceeding and must be taken in accordance with Rule 4 (b) of the Hawaii Rules of Appellate Procedure (HRAP)." Grattafiori v. State, 79 Hawaii 10, 13, 897 P.2d 937, 940 (1995) (internal quotation marks and brackets omitted). Appellant Reed's appeal arises out of the proceedings for Appellant Reed's HRPP Rule 40 petition for post-conviction relief in S.P.P. No. 13-1-001, and, thus, the circuit court's May 21, 2013 order dismissing Appellant Reed's HRPP Rule 40 petition for post-conviction relief is appealable under HRS § 641-11, HRPP Rule 40(h), and the holding in Grattafiori v. State.

With respect to the timeliness of Appellant Reed's appeal, HRAP Rule 4(b) provides in relevant part the following:

(b) Appeals in Criminal Cases.
(1) Time and Place of Filing. In a criminal case, the notice of appeal shall be filed within 30 days after entry of the judgment or order appealed from.
(3) Entry of Judgment or Order Defined. A judgment or order is entered within the meaning of this subsection when it is filed with the clerk of the court.

(Emphasis added). Therefore, "pursuant to 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." Grattafiori v. State, 79 Hawaii at 13, 897 P.2d at 940 (emphases added) . Appellant Reed did not file his June 24, 2013 notice of appeal within thirty days after entry of the May 21, 2013 order, as HRAP Rule 4(b)(1) required. Therefore, Appellant Reed's appeal is untimely under HRAP Rule 4(b)(1).

Appellant Reed argues that his June 24, 2013 notice of appeal is timely under the combination of HRAP Rule 4(b)(1) and HRAP Rule 26(c). According to Appellant Reed, although HRAP Rule 4(b)(1) required Appellant Reed to file his notice of appeal within thirty days after entry of the appealable order, the circuit court sent the May 21, 2013 order to Appellant Reed by mail, and, thus, according to Appellant Reed, HRAP Rule 26(c) requires the intermediate court of appeals to add two additional days to the thirty-day time period under HRAP Rule 4(b)(1) for filing a notice of appeal. HRAP Rule 26(c) provides for two extra days under the following circumstances:

(c) Additional time after service by mail. Whenever a party is required or permitted to do an act within a prescribed time after service of a document, and the document is served by mail, 2 extra days shall be added to the prescribed period.

HRAP Rule 26(c) (emphasis added). However, contrary to Appellant Reed's argument, HRAP Rule 4(b)(1) neither requires nor permits a party to file a notice of appeal within thirty days after "service" of an appealable order or judgment. Instead, HRAP Rule 4(b)(1) expressly requires that "the notice of appeal shall be filed within 30 days after entry of the judgment or order appealed from." (Emphasis added). Under HRAP Rule 4(b)(1), the circuit court's "entry" of the May 21, 2013 order triggered the thirty-day time period under HRAP Rule 4(b)(1) rather than the circuit court's "service" of the May 21, 2013 order by mail, and, thus, the two-day provision in HRAP Rule 26(c) does not apply to the thirty-day time period under HRAP Rule 4(b)(1) for filing a notice of appeal. Appellant Reed did not file his June 24, 2013 notice of appeal within thirty days after entry of the May 21, 2013 order dismissing Reed's HRPP Rule 40 petition for post conviction relief, as HRAP Rule 4(b)(1) required. Therefore, Appellant Reed's appeal is untimely under HRAP Rule 4(b)(1).

The two exceptions to the timeliness requirement do not apply to the instant case. In an appeal from a circuit court proceeding involving an HRPP Rule 40 petition for ...


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