TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000681; CR.
Hart and Chad N. Enoki for petitioner.
M. Kaneshiro and Stephen K. Tsushima for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
Nicol was charged in the Circuit Court of the First Circuit
(circuit court) with multiple counts of sexual assault. Due
to pretrial delay, the circuit court dismissed the case
without prejudice pursuant to Hawai'i Rules of Penal
Procedure (HRPP) Rule 48 (2012) and the three-factor analysis
of State v. Estencion, 63 Haw. 264, 625 P.2d 1040
(1981) . Nicol appealed the circuit court's order to the
Intermediate Court of Appeals (ICA), arguing that the circuit
court erred in dismissing the case without prejudice, thereby
permitting reprosecution of the charges. The ICA dismissed
the appeal for lack of appellate jurisdiction based on its
conclusion that the Hawaii Revised Statutes did not permit
Nicol's appeal. Thus, the sole issue before this court is
whether a defendant has the right to appeal a circuit court
order dismissing a case without prejudice.
that, under Hawaii Revised Statutes (HRS) § 641-11
(Supp. 2004), a defendant may appeal from an order of the
circuit court dismissing the proceedings without prejudice,
and the ICA therefore possessed jurisdiction over Nicol's
appeal. Accordingly, we remand the case to the ICA for
resolution of the merits of Nicol's appellate claim.
CIRCUIT COURT PROCEEDINGS
October 14, 2014, Nicol was charged by indictment with four
counts of sexual assault in the first degree in violation of
HRS § 707-730(1) (b) (Supp. 2013), four counts of sexual
assault in the second degree in violation of HRS §
707-731(1)(a) (Supp. 2013), and two counts of sexual assault
in the fourth degree in violation of HRS § 707-733(1)
(a) (Supp. 2013).
October 20, 2014, at arraignment, Nicol pleaded not guilty to
the charges. Trial was continued multiple times to resolve
issues relating to discovery and various motions in limine,
to secure the presence of anticipated witnesses, to rule on
Nicol's motion to dismiss the indictment based on
insufficient evidence, to reassign the case following recusal
of the presiding judge, and to address the court's
scheduling conflicts. For certain periods of this time, Nicol
waived his right to a speedy trial.
7, 2016, Nicol moved to dismiss the indictment based in part
on alleged violations of his rights under HRPP Rule 48, which
requires a court to dismiss criminal charges when trial has
not commenced within six months from the date of arrest if
bail is set. Nicol further contended that, pursuant to the
three-factor test set forth by this court in State
v. Estencion, 63 Haw. 264, 625 P.2d 1040
(1981), he was entitled to dismissal with
September 16, 2016, the circuit court entered its Order
Granting in Part and Denying in Part Defendant Donald
Nicol's Motion to Dismiss Indictment With Prejudice
(Order of Dismissal). With respect to Nicol's argument
based on HRPP Rule 48, the court concluded that the
applicable period of delay exceeded six months, thereby
violating HRPP Rule 48 and requiring dismissal of the
charges. The circuit court further concluded that dismissal
without prejudice was the appropriate remedy based on its
application of the three-factor test set forth in
Estencion, 63 Haw. 264, 625 P.2d 1040.
Nicol's appeal of the Order of Dismissal to the ICA, the
State filed a Counterstatement of Jurisdiction arguing that
the ICA lacked appellate jurisdiction to review the circuit
court's order. The State contended that the right of
appeal in a criminal case must be granted by statute and that
no statute afforded Nicol the right to appeal an order
dismissing proceedings without prejudice. The State contended
that circuit court defendants may only appeal from the
following: (1) "the sentence of the court in a criminal
case" based on HRS § 641-11 (Supp. 2004), which
sets forth the right of appeal in circuit court criminal
cases; (2) a certified interlocutory order pursuant to HRS
§ 641-17 (1993),  or (3) an order denying a motion to
dismiss based on double jeopardy principles. According to the
State, none of these bases applied in Nicol's case to
permit the ICA's review of the Order of Dismissal.
Nicol's Statement of Jurisdiction, he submitted that the
ICA did in fact have jurisdiction to review the merits of his
appeal. Nicol maintained that HRS § 641-11 contained an
"ambiguity as to what constitutes an appealable judgment
or order of the circuit court." Nicol stated that this
court had interpreted HRS § 641-12 (Supp. 2004) to grant
district court defendants the right to appeal a district
court order dismissing charges without prejudice. Nicol also
asserted that this court had previously held that, pursuant
to HRS § 641-13 (Supp. 2006), the State may appeal an
order of dismissal from both the district and circuit court
in criminal cases.
thus reasoned that the ability of a district court defendant
and the State to appeal an order of dismissal shows that an
order dismissing proceedings without prejudice constitutes a
final order or decision which is ripe for appeal. Nicol also
contended that an interpretation of the statutes as
prohibiting circuit court defendants from appealing orders of
dismissal yet granting such right of appeal to
similarly-situated district court defendants would result in
a violation of Nicol's constitutional right to equal
protection of the laws. According to Nicol, HRS § 641-11
must be interpreted in a manner that does not lead to this
"unreasonable, " "absurd, " and
January 11, 2017, the ICA issued an Order Dismissing the
Appeal for Lack of Appellate Jurisdiction (Order Dismissing
the Appeal). The ICA stated that the case was dismissed
without prejudice by the circuit court based on a violation
of HRPP Rule 48, and, therefore, "no sentence ha[d] been
imposed." The ICA thus concluded that it lacked
appellate jurisdiction "because there is no
'judgment' in the record on appeal as defined by
[HRS] § 641-11 (2010)." As a result, the ICA
determined that Nicol was not entitled to a review of the
circuit court's Order of Dismissal under HRS §
641-11 and dismissed Nicol's appeal.
STANDARDS OF REVIEW
existence of jurisdiction is a question of law that we review
de novo under the right/wrong standard." Lingle v.
Haw. Gov't Emps. Ass'n, 107 Hawai'i 178,
182, 111 P.3d 587, 591 (2005). Additionally, "[t]he
interpretation of a statute is a question of law reviewable
de novo." State v. Arceo, 84
Hawai'i 1, 10, 928 P.2d 843, 852 (1996) (quoting
State v. Camara, 81 Hawai'i 324, 329, 916 P.2d
1225, 1230 (1996)).
certiorari, Nicol contends that the ICA improperly dismissed
his appeal of the circuit court's Order of Dismissal
based on a "limited reading" and "uncritical
interpretation" of the term "judgment" in HRS
§ 641-11. The State responds that the circuit
court's Order of Dismissal is not a "judgment"
within the meaning of HRS § 641-11 because it is not
"a sentence, " and, therefore, no jurisdictional
basis exists to permit Nicol's appeal in this
right of appeal in a criminal case is purely statutory and
exists only when given by some constitutional or statutory
provision." State v. Kalani, 87 Hawai'i
260, 261, 953 P.2d 1358, 1359 (1998) (quoting State v.
Fukusaku, 85 Hawai'i 462, 490, 946 P.2d 32, 60
(1997)). Under the Hawaii Revised Statutes, the right to
appeal in criminal cases is generally divided into three
categories: the right to appeal from the circuit courts, the
right to appeal from the district courts, and the State's
right to appeal in both the district and circuit courts.
See generally HRS § 641-11 (Supp. 2004)
(circuit courts); HRS § 641-12 (Supp. 2004) (district
courts); HRS § 641-13 (Supp. 2006) (State's right to
appeal). The Hawaii Revised Statutes also provide a specific
statutory basis for the right of circuit court defendants to
seek interlocutory appeals. See HRS § 641-17
(Supp. 2004) .
addition to the rights of appeal set forth in chapter 641,
this court has on several occasions stated that its statutory
supervisory powers set forth in HRS § 602-4
(1993) may provide it with an independent
jurisdictional basis to "prevent and correct error and
abuses where no other remedy is expressly provided for by
law." State v. Ui, 66 Haw. 366, 370, 663 P.2d
630, 633 (1983) (observing that although this court may have
lacked jurisdiction under HRS § 641-11, it had authority
under HRS § 602-4 to invoke its supervisory powers to
entertain an appeal); see also State v. Kealaiki, 95
Hawai'i 309, 317, 22 P.3d 588, 596 (2001); State v.
Johnson, 6 Hawai'i 462');">96 Hawai'i 462, 471, 32 P.3d 10 6, 115
(App. 2 001).
A.Right of Appeal of Circuit Court ...