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State v. Nicol

Supreme Court of Hawaii

August 30, 2017

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,
v.
DONALD NICOL, Petitioner/Defendant-Appellant.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-16-0000681; CR. NO. 14-1-1642)

          Brook Hart and Chad N. Enoki for petitioner.

          Keith M. Kaneshiro and Stephen K. Tsushima for respondent.

          RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

          OPINION

          POLLACK, J.

         Donald 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.

         We hold 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.

         I. CIRCUIT COURT PROCEEDINGS

         On 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).[1]

         On 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.[2] For certain periods of this time, Nicol waived his right to a speedy trial.

         On June 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 prejudice.[3]

         On 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.

         II. ICA PROCEEDINGS

         Following 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), [4] 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.

         In 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.

         Nicol 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 "unconstitutional" result.

         On 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.

         III. STANDARDS OF REVIEW

         "The 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)).

         IV. DISCUSSION

         On 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 case.[5]

         "The 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) .

         In 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)[6] 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).[7]

         A.Right of Appeal of Circuit Court ...


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