"Despite the fact that the State's delay was unjustified, it does not in and of itself tip the balance toward dismissal with prejudice."
How later courts described this case
- "Despite the fact that the State's delay was unjustified, it does not in and of itself tip the balance toward dismissal with prejudice."
- "HRS § 641-11 authorizes a defendant's appeal in a criminal matter from a circuit court order dismissing the proceedings without prejudice"
Written by the judges who cited it.
The opinion
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Electronically Filed
Supreme Court
SCWC-16-0000681
30-AUG-2017
10:03 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
STATE OF HAWAII,
Respondent/Plaintiff-Appellee,
vs.
DONALD NICOL,
Petitioner/Defendant-Appellant.
SCWC-16-0000681
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-16-0000681; CR. NO. 14-1-1642)
AUGUST 30, 2017
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY 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 Hawaii Rules of Penal
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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-
2
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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.
1
The indictment also reflects three additional counts of sexual
assault in the first degree that were stricken. Additionally, one of the
second-degree sexual assault counts was subsequently dismissed by the circuit
court by order dated April 13, 2015.
2
The record reflects that the Honorable Colette Y. Garibaldi was
assigned to preside over the proceedings following the recusal of the
Honorable Dexter D. Del Rosario, with the exception of the motion to dismiss
proceeding, which was held before the Honorable Paul B.K. Wong.
3
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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
3
Nicol also contended that the delay in commencing the trial
violated his state and federal constitutional rights to a speedy trial, which
argument the circuit court rejected.
4
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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),
4
The State further submits on certiorari that Nicol had the right
to seek the circuit court’s permission for an interlocutory appeal under HRS
§ 641-17 in this case, but that he failed to do so. Nicol responds that he
had no such right because interlocutory review of an order terminating a case
would be inappropriate and HRS § 641-17 only permits defendants to seek
interlocutory review of a decision denying a motion to dismiss.
5
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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
6
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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 Hawaii 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
Hawaii 1, 10, 928 P.2d 843, 852 (1996) (quoting State v. Camara,
81 Hawaii 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
5
At oral argument, however, counsel for the State expressed that
“with regard to the jurisdictional issue, the State’s actually in agreement
with Petitioner.” See Oral Argument at 23:09-20, State v. Nicol, SCWC-16-
0000681 (argued July 18, 2017), http://oaoa.hawaii.gov/
jud/oa/17/SCOA_071817_SCWC_16_681.mp3.
7
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“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 Hawaii 260, 261, 953
P.2d 1358, 1359 (1998) (quoting State v. Fukusaku, 85 Hawaii
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
6
HRS § 602-4 (1993) states that “[t]he supreme court shall have
the general superintendence of all courts of inferior jurisdiction to prevent
and correct errors and abuses therein where no other remedy is expressly
provided by law.”
8
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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 Hawaii 309, 317, 22 P.3d
588, 596 (2001); State v. Johnson, 96 Hawaii 462, 471, 32 P.3d
106, 115 (App. 2001).7
A. Right of Appeal of Circuit Court Defendants
Our analysis begins with HRS § 641-11, which sets
forth the right to appeal from the circuit courts and provides
as follows:
Any party aggrieved by the judgment of a circuit court in a
criminal matter may appeal to the intermediate appellate
court, subject to chapter 602, in the manner and within the
time provided by the rules of court. The sentence of the
court in a criminal case shall be the judgment. All
appeals shall be filed with the clerk of the supreme court
and shall be subject to one filing fee.
HRS § 641-11 (emphases added). Thus, under HRS § 641-11, a
party aggrieved by the “judgment” of a circuit court may appeal
7
Additionally, although not founded in statute, this court has
held that certain appeals may be brought pursuant to the “collateral order”
exception. Kealaiki, 95 Hawaii at 316–17, 22 P.3d at 595–96. Pursuant to
this doctrine, an order or decision of the court may be appealable if it:
“(1) fully disposes of the question at issue; (2) resolves an issue
completely collateral to the merits of the case; and (3) involves important
rights which would be irreparably lost if review had to await a final
judgment.” Id. (quoting State v. Baranco, 77 Hawaii 351, 353-54, 884 P.2d
729, 731-32 (1994) (applying the collateral order exception to hold that a
defendant may take an interlocutory appeal of an order denying a pretrial
motion to dismiss based on double jeopardy grounds)).
9
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to the intermediate appellate court. Id. The statute also
states that the “sentence” shall constitute the “judgment.” Id.
At issue in this case is whether the statutory clause
identifying the “sentence” as the “judgment” precludes circuit
court defendants from appealing an order of dismissal without
prejudice. “When construing a statute, [this court’s] foremost
obligation is to ascertain and give effect to the intention of
the legislature, which is to be obtained primarily from the
language contained in the statute itself.” State v. McKnight,
131 Hawaii 379, 388, 319 P.3d 298, 307 (2013) (alteration in
original) (quoting State v. Kotis, 91 Hawaii 319, 327, 984 P.2d
78, 86 (1999)). Additionally, “[t]he legislative history of a
statute remains relevant ‘even when the language appears clear
upon perfunctory review.’” State v. Alangcas, 134 Hawaii 515,
526, 345 P.3d 181, 192 (2015) (quoting Richardson v. City & Cty.
of Honolulu, 76 Hawaii 46, 68-69, 868 P.2d 1193, 1215-16
(1994)). “Were this not the case, a court may be unable to
adequately discern the underlying policy which the legislature
seeks to promulgate and, thus, would be unable to determine if a
literal construction would produce an absurd or unjust result,
inconsistent with the policies of the statute.” Id. (quoting
Richardson, 76 Hawaii at 68-69, 868 P.2d at 1215-16).
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The substance of HRS § 641-11 dates back to at least
1892, and, prior to the legislative session of 1925, its
predecessor statute provided that a writ of error could be
issued to “any party deeming himself aggrieved by the judgment
of a circuit court, the land court, or a district magistrate, or
by the order or decree of a circuit judge at chambers . . .
within six months from the entry of such judgment, order or
decree.” Revised Laws of Hawaii (RLH) § 2521 (1925). The
territorial legislature in 1925 amended the statute, however, to
include the clause at issue in this case. The amended statute
provided in relevant part as follows:
A writ of error . . . may be issued . . . upon the
application of any party deeming himself aggrieved by the
judgment of a circuit court, the land court, or a district
magistrate, or by the order or decree of a circuit judge at
chambers . . . within six months from the entry of such
judgment, order or decree and the sentence of the court in
a criminal case shall be the judgment.
1925 Haw. Sess. Laws Act 211, § 1 at 255-56 (emphasis added).
In its committee report, the Senate Committee on
Judiciary (Committee) stated that the 1925 amendment was
intended to “more clearly define[] the time within which”
defendants could seek a writ of error in criminal cases. S.
Stand. Comm. Rep. No. 181, in 1925 Senate Journal, at 550. The
Committee elaborated that under both the previous and amended
versions of the statute, individuals were permitted to seek such
a writ in criminal cases “within six months from the entry of
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judgment[].” Id. at 551. However, the Committee was concerned
that there was ambiguity as to when the relevant six-month
period began to run. Id. The Committee noted that courts had
generally treated the sentence in a criminal case as the
relevant “entry of judgment” for purposes of computing the six-
month period, but it also noted that there had been “a doubt as
to the correctness of such a construction.” Id. The Committee
determined that the sentence of the court was indeed the
relevant event by which to measure the six-month window, and,
therefore, it specifically identified the “sentence” as the
“judgment” in its amendment to codify this interpretation of the
statute. Id. Thus, the legislative history surrounding the
1925 amendment to the statute classifying the “sentence” as the
“judgment” indicates that the legislature intended not to narrow
the scope of decisions and orders from which defendants could
appeal, but, rather, to more clearly establish the relevant
timeframe within which defendants could do so.
This court’s understanding of HRS § 641-11 is further
informed by our jurisdiction’s caselaw, which suggests that
considerations of finality are the primary focus in resolving
questions of appealability under the statute. In State v.
Johnston, for example, this court ruled that a circuit court
order denying a motion to dismiss was not appealable under HRS §
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641-11 in part because the order--which did not terminate
proceedings in the case--was deemed to be of an interlocutory
nature. 63 Haw. 9, 10, 619 P.2d 1076, 1077 (1980). The
Johnston court concluded that the order denying the motion to
dismiss was “not a final order or judgment,” and it was
therefore not appealable under the statute. Id. Although the
court considered the language of HRS § 641-11 that “[t]he
sentence of the court in a criminal case shall be the judgment,”
it did not conclude that jurisdiction was lacking based on the
absence of a “sentence”; rather, this court focused on the fact
that denial of a motion to dismiss permitted proceedings to move
forward and therefore lacked finality. Id.; see also State v.
Ferreira, 54 Haw. 485, 486-87, 510 P.2d 88, 89 (1973) (appeal
not permitted under HRS § 641-11 where judgment of conviction
lacked any indication that sentencing had occurred and where the
record suggested that “the judgment in [the] case [was] not
final”).
In Ui, this court again considered the scope of HRS §
641-11 and elaborated that an appeal need not necessarily be
from a “sentence” for principles of finality to warrant its
adjudication. 66 Haw. at 368-69, 663 P.2d at 631-32. In that
case, following a mistrial and dismissal of the indictment with
prejudice, the defendant’s court-appointed counsel sought an
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order awarding attorneys’ fees. Id. at 368, 663 P.2d at 631.
After the circuit court issued the order granting counsel a
portion of the fees he sought, the defendant appealed the
attorneys’ fees order and submitted that jurisdiction under HRS
§ 641-11 was proper. Id. On appeal, the State cited to
Johnston, 63 Haw. 9, 619 P.2d 1076, and argued that an appeal
under the statute could only be taken “from a sentence of the
circuit court.” Id. at 369, 663 P.2d at 632. The Ui court
distinguished Johnston, explaining that “Johnston did not
definitively rule that an appeal under HRS § 641-11 must be from
a sentence in a criminal case.” Id. Rather, this court
considered Johnston to imply that “an appeal may also be brought
from an order deemed to be final.” Id. The Ui court
determined, however, that it need not expressly rule on this
issue because the defendant lacked standing to challenge the
order awarding his counsel attorneys’ fees.8 Id. at 369-70, 663
P.2d at 632-33 (reasoning that the defendant was not personally
“aggrieved” by the attorneys’ fees order within the meaning of
HRS § 641-11).
8
Although the Ui court later stated in the context of another
possible jurisdictional basis that it “lack[ed] jurisdiction under HRS § 641-
11,” the court concluded that it “[did] not need to decide this issue” (i.e.,
“whether the judgment appealed from must be a sentence”). 66 Haw. at 369-70,
663 P.2d at 632-33.
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We again considered principles of finality as they
related to appeals in Kalani, where this court discussed the
differences between a grant and a denial of a defendant’s motion
to dismiss. 87 Hawaii at 261-62, 953 P.2d at 1359-60. In
Kalani, we considered whether the State was entitled to appeal
an order of dismissal without prejudice pursuant to HRS § 641-
13.9 Id. at 261, 953 P.2d at 1359. After determining that the
statute and its caselaw indicated that the State was entitled to
appeal such an order, this court observed the possible
applicability of Johnston, which it construed as indicating that
“in a criminal case, an appeal must be from a ‘final order or
judgment.’” Id. (quoting Johnston, 63 Haw. at 11, 619 P.2d at
1077). Although the Kalani court ultimately concluded that
Johnston possessed minimal persuasive authority because it was
based on a different statute, it reasoned that the order in
9
HRS § 641-13 provides in relevant part as follows:
An appeal may be taken by and on behalf of the State
from the district or circuit courts to the intermediate
appellate court, subject to chapter 602, in all criminal
matters, in the following instances:
(1) From an order or judgment quashing, setting
aside, or sustaining a motion to dismiss any
indictment, information, or complaint or any
count thereof . . . .
HRS § 641-13 (Supp. 2006).
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Johnston denying a motion to dismiss differed from the order at
issue, which granted a motion to dismiss and effectively
terminated proceedings. Id. at 261–62, 953 P.2d at 1359–60.
When dismissal is denied in a criminal case, the circuit
court conducts further proceedings and, presumably, the
case eventually goes to trial. Thus, an order denying a
motion to dismiss is not final. The present case, however,
involved an order granting a motion to dismiss. If
dismissal is granted, there is nothing further to be
accomplished in the trial court and the proceedings are
ended. Thus, an order granting a motion to dismiss is
final.
Id. The Kalani court further observed that if the State chose
to recharge a defendant following an order dismissing
proceedings without prejudice, “recharging [the defendant] does
not revive the original case.” Id. at 262, 953 P.2d at 1360.
“Rather, recharging the defendant initiates a new case,” and,
therefore, “a dismissal without prejudice is a final order-it
terminates the current case.” Id.
An emphasis on finality is also present in State v.
Lawrence, 139 Hawaii 192, 386 P.3d 476 (App. 2016), in which the
ICA held that a judgment of acquittal and commitment based on an
insanity defense constituted a “sentence” for purposes of HRS §
641-11. In Lawrence, the defendant was found not guilty by
reason of mental disease, disorder, or defect following a bench
trial. 139 Hawaii at 194-95, 386 P.3d at 478-79. Accordingly,
the court issued a judgment of acquittal and an order committing
the defendant to the care and custody of the director of health
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to be placed in an appropriate institution. Id. at 195, 386
P.3d at 479. Following entry of the judgment of acquittal, the
defendant sought to appeal one of a series of orders issued by
the circuit court authorizing his involuntary medication while
in the State’s custody. Id. at 195-99, 386 P.3d at 479-83.
In considering whether his appeal was permissible
under HRS § 641-11, the ICA observed several instances in which
this court had “implicitly held” that orders regarding
involuntary treatment and medication were “appealable orders.”
Id. at 199-200, 386 P.3d at 483-84 (citing Kotis, 91 Hawaii 319,
984 P.2d 78 (appeal of a pretrial involuntary order of
medication); State v. Miller, 84 Hawaii 269, 933 P.2d 606 (1997)
(appeal of an order denying petition for conditional release
following acquittal on the ground of mental disease or disorder
and commitment to state custody); State v. Burgo, 71 Haw. 198,
787 P.2d 221 (1990) (appeal of an order revoking grant of
conditional release following acquittal and commitment to state
custody)). The Lawrence court additionally considered that a
defendant found not guilty based on an insanity defense who was
committed to the custody of the State may be subject to
deprivation of liberty “for a prolonged, and indeed an
indefinite, period of time.” Id. at 200, 386 P.3d at 484. The
court reasoned that it would be “anomalous” to preclude an
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appeal “under the circumstances of [the] case” and suggested
that interpreting HRS § 641-11 to prohibit the appeal would
yield absurd results. Id. at 201, 386 P.3d at 485 (citing
Burgo, 71 Haw. at 202, 787 P.2d at 223). Thus, the ICA
determined that the judgment of acquittal and commitment
constituted a “sentence” for purposes of HRS § 641-11 given its
nature and finality. Id. at 200-01, 386 P.3d at 484-85 (also
holding that the order authorizing involuntary medication was an
appealable post-judgment order).
In keeping with this focus on finality, we have also
interpreted HRS § 641-11 to bar an appeal of orders that do not
represent final decisions of the court or otherwise terminate
proceedings. In Kealaiki, for example, this court considered
whether a circuit court order granting a deferred acceptance of
no contest (DANC) plea was appealable under HRS § 641-11. 95
Hawaii at 311-12, 22 P.3d at 590-91. The court explained that
in general, if a DANC plea is granted by order of the circuit
court, “acceptance of the plea is then deferred,” further
proceedings are suspended pending the defendant’s satisfaction
of certain conditions, and, upon “[s]uccessful completion of the
deferral period,” the charges are dismissed. Id. at 315, 22
P.3d at 594. The defendant in Kealaiki had sought to appeal the
circuit court’s order accepting his DANC plea, but prior to
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completion of the deferral period; as such, the criminal charges
remained pending at the time of appeal. Id. at 312, 22 P.3d at
591. This court reasoned that given the nature of the deferred
plea procedure, an order granting a DANC plea was neither a
conviction nor a sentence. Id. at 312-13, 22 P.3d at 591-92.
The Kealaiki court therefore concluded that an appeal of an
order granting a DANC plea pending the deferral period was not
authorized by HRS § 641-11. Id. at 312, 22 P.3d at 591.
Decisions of this jurisdiction thus demonstrate that
our courts have not rigidly interpreted appealability pursuant
to HRS § 641-11. Rather, we have looked to considerations of
finality and determined whether the order or decision terminated
proceedings, leaving “nothing further to be accomplished in the
trial court.” Kalani, 87 Hawaii at 261–62, 953 P.2d at 1359–60;
see also Johnston, 63 Haw. at 10, 619 P.2d at 1077; Ui, 66 Haw.
at 368-69, 663 P.2d at 631-32; Kealaiki, 95 Hawaii at 311-12, 22
P.3d at 590-91. Such an interpretation of HRS § 641-11 is
consistent with the legislative intent behind the statute’s
language identifying the “sentence” as the “judgment” in circuit
court proceedings, which was not intended to limit the scope of
permissible appeals under the statute, but, rather, to more
clearly establish the timeline in which an appeal could be
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pursued. S. Stand. Comm. Rep. No. 181, in 1925 Senate Journal,
at 550-51.
B. Right of Appeal of District Court Defendants and
of the State
Reference to the analogous rights of appeal of
district court defendants and of the State in both district and
circuit court cases is also appropriate in analyzing Nicol’s
right to appeal in this case because “[l]aws in pari materia, or
upon the same subject matter, shall be construed with reference
to each other.” Richardson v. City & Cty. of Honolulu, 76
Hawaii 46, 55, 868 P.2d 1193, 1202 (1994) (alteration in
original) (quoting HRS § 1-16 (1985)).
HRS § 641-13 (Supp. 2006) provides a listing of
orders, rulings, and decisions of both the district and circuit
courts from which the State may appeal, including “an order or
judgment quashing, setting aside, or sustaining a motion to
dismiss.” HRS § 641-13(1). Our court has interpreted this
language of HRS § 641-13 to permit the State to appeal an order
dismissing proceedings without prejudice. See Kalani, 87 Hawaii
at 261, 953 P.2d at 1359 (“[T]he plain meaning of [HRS § 641-
13(1)] indicates that the prosecution can appeal from both
dismissals with prejudice and without prejudice.”).
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HRS § 641-12 sets forth the right to appeal for
district court defendants and provides in relevant part as
follows:
Appeals upon the record shall be allowed from all final
decisions and final judgments of district courts in all
criminal matters. Such appeals may be made to the
intermediate appellate court, subject to chapter 602,
whenever the party appealing shall file notice of the
party’s appeal within thirty days, or such other time as
may be provided by the rules of the court.
HRS § 641-12 (Supp. 2004) (emphasis added). Thus, district
court defendants may appeal from “all final decisions and final
judgments.” Id.
The difference in standards between the appeals
provisions relating to district court and circuit court
defendants originated by virtue of statutory amendment and
appears to have been a byproduct of a 1972 legislative updating
of the Hawaii Revised Statutes. Prior to 1972 and dating back
to the late 1800s, Hawaii law provided for both appeals and for
writs of errors. Appeals were permitted from “all decisions” of
“district magistrates” in civil and criminal cases pursuant to
section 2508 of the Revised Laws of Hawaii, see RLH § 2508
(1925), and appeals were likewise permitted from all “decisions,
judgments, orders or decrees” of “circuit judges in chambers”
under section 2509, see RLH § 2509 (1925). Under RLH § 2521
(1925), writs of error could be sought by “any party deeming
himself aggrieved by the judgment of a circuit court, the land
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court, or a district magistrate, or by the order or decree of a
circuit judge at chambers . . . within six months from the entry
of such judgment, order or decree.” Thus, separate statutory
bases existed to permit appeals from district courts and from
circuit courts, and a separate, single statute set the terms by
which parties could seek writs of error from all lower courts.
Our statutes maintained the distinction between appeals and
writs or error for many decades.
In 1972, the Hawaii Legislature conducted a “long
overdue” “[c]omprehensive updating and unifying” of the Hawaii
Revised Statutes. S. Stand. Comm. Rep. No. 622-72, in 1972
Senate Journal, at 1006. The resulting legislation (Act 89) was
the product of work done by the Committee on Coordination of
Rules and Statutes and sought to address “[o]bsolete civil
procedure provisions” dating back to the 1800s. Id. Act 89
removed the distinction in our statutes between “appeals” and
“writs of errors” and consolidated the two categories into one
chapter (“Appeals”), which was divided into the two subparts
currently found in the Hawaii Revised Statutes (“Appeals in
Civil Actions and Proceedings” and “Appeals in Criminal
Proceedings”). Within the subpart “Appeals in Criminal
Proceedings,” Act 89 set forth the three subsections that exist
in the present day: appeals from the circuit courts, appeals
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from the district courts, and appeals by the State in criminal
cases. 1972 Haw. Sess. Laws Act 89, § 5 at 348-49.
To define the right of appeal of circuit court
defendants, Act 89 borrowed from the previous language relating
to writs of error from the circuit, land, and district courts.
The legislation deleted the reference to land and district
courts and provided that “[a]ny party deeming himself aggrieved
by the judgment of a circuit court in a criminal matter, may
appeal . . . within the time provided by the Hawaii Rules of
Criminal Procedure. The sentence of the court in a criminal
case shall be the judgment.” 1972 Haw. Sess. Laws Act 89, § 5
at 348 (emphasis added). To define the right of appeal of
district court defendants, Act 89 relocated the prior provision
permitting appeals of “all decisions” of “district magistrates”
in both civil and criminal cases and expressly limited its
applicability to criminal cases. Id. Thus, as a result of the
1972 legislation, (1) any circuit court defendant “deeming
himself aggrieved by the judgment . . . in a criminal matter”
could seek an appeal, and “[t]he sentence of the court in a
criminal case” constituted “the judgment,” see HRS § 641-11
(1972), and (2) district court defendants could appeal from “all
final decisions and final judgments . . . in all criminal
matters,” see HRS § 641-12 (1972).
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Any textual difference created by Act 89 between the
statutory rights of circuit court defendants and district court
defendants does not appear to be purposeful. Rather than
substantively modifying the appellate rights of defendants, the
stated purpose of Act 89 was to “eliminate inconsistencies with
the rules of court; delete outmoded provisions; make
improvements of a technical nature; and transfer procedural
matters to rules of court where advisable.” S. Stand. Comm.
Rep. No. 622-72, in 1972 Senate Journal, at 1005. A Senate
Special Committee Report on the amendments made to the new
“Appeals” chapter was silent regarding the difference in
statutory text between HRS § 641-11 and HRS § 641-12, and it
neither explained nor referenced the treatment afforded to
circuit court versus district court defendants pursuant to the
legislation. See id. at 1006 (stating that Senate Special
Committee Report No. 7 on Act 89 “reflect[ed] the views of” the
Senate Committee on Judiciary); see also S. Spec. Comm. Rep. No.
7, in 1972 Senate Journal, at 705 (discussing the “Appeals”
chapter created by Act 89). Likewise, the report on Act 89
created by the Committee on Coordination of Rules and Statutes
manifests no intent to create different appellate rights for
district and circuit court criminal defendants, but, rather, to
more clearly organize and set forth the appellate rights of
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civil and criminal litigants in general. See S. Stand. Comm.
Rep. No. 622-72, in 1972 Senate Journal, at 1006 (finding The
Report of the Committee on Coordination of Rules and Statutes to
be helpful, though not necessarily reflecting the views of the
Senate Committee on Judiciary); see also Comm. on Coordination
of Rules and Statutes, 2 Report of the Committee on Coordination
of Rules and Statutes § 641 (Sept. 1, 1971) (explaining proposed
amendments relating to appeals).
The statutory scheme created by Act 89 remains in
effect today, and the appellate rights codified at HRS § 641-11
and HRS § 641-12 that are relevant to this case remain
substantively identical to those enacted by Act 89. Relying on
the language specific to HRS § 641-12, courts of this
jurisdiction have interpreted the statute to grant district
court defendants the right to appeal orders of dismissal without
prejudice. See, e.g., State v. Hern, 133 Hawaii 59, 62, 323
P.3d 1241, 1244 (App. 2013) (adjudicating on remand defendant’s
appeal of an order of dismissal without prejudice after this
court vacated the ICA’s order dismissing on jurisdictional
grounds). Thus, under the Hawaii Revised Statutes, district
court defendants and the State in either district or circuit
court may appeal from an order dismissing proceedings without
prejudice. Id.; Kalani, 87 Hawaii at 261, 953 P.2d at 1359.
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C. Nicol May Appeal the Circuit Court’s Order of Dismissal
Under HRS § 641-11
This court has not previously articulated a clear
ruling as to whether circuit court defendants in criminal
matters are afforded the right to appeal an order dismissing
proceedings without prejudice under HRS § 641-11. The text of
the statute provides that any party “aggrieved by the judgment”
of the circuit court in a criminal case may take an appeal. HRS
§ 641-11. Significantly, as noted, the clause specifying that
“[t]he sentence of the court in a criminal case shall be the
judgment” was not intended to narrow the scope of orders and
decisions from which circuit court defendants could appeal. S.
Stand. Comm. Rep. No. 181, in 1925 Senate Journal, at 550-51.
Rather, it was intended to ensure that defendants timely
appealed and to erase ambiguity as to the deadline by which
defendants were required to do so. Id.
In keeping with the identification of the “sentence”
as the “judgment” as relating to issues of timing rather than
scope, appellate courts of this jurisdiction have not
interpreted HRS § 641-11 solely by considering whether or not
the relevant decision contained an order of punishment or other
formal pronouncement of guilt. Rather, as discussed, in
determining whether dispositions are subject to appeal under the
statute, our courts have focused the inquiry on whether the
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relevant order terminated the proceedings in the case and left
nothing further to be accomplished by the lower court. See,
e.g., State v. Johnston, 63 Haw. 9, 10, 619 P.2d 1076, 1077
(1980); Ui, 66 Haw. at 368-69, 663 P.2d at 631-32; State v.
Ferreira, 54 Haw. 485, 486-87, 510 P.2d 88, 89 (1973); State v.
Lawrence, 139 Hawaii 192, 200, 386 P.3d 476, 484 (App. 2016);
Kealaiki, 95 Hawaii at 312, 22 P.3d at 591.
We also consider that, under the ICA’s interpretation
of the statute in this case, district court defendants may
appeal an order of dismissal without prejudice pursuant to HRS §
641-12 while circuit court defendants are denied the same right
under HRS § 641-11. In light of the history of these
provisions, this court cannot conclude that the legislature
intended to grant one right to district court defendants yet
withhold that right from circuit court defendants. Rather, it
appears that the legislature intended to maintain a preexisting
appellate scheme that granted to criminal defendants in general
the right to appeal final orders. The difference in text
between the two statutes likely resulted from the concerted
effort to reorganize the appellate statutory scheme and delete
obsolete provisions, rather than to create different classes of
rights to be afforded to circuit court and district court
defendants with regard to final orders and judgments.
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Additionally, there are several situations in which
the district and circuit courts may have jurisdiction over the
same criminal charge. Under HRS § 603–21.5(a)(1) (Supp. 2008),
the circuit courts have jurisdiction over all “[c]riminal
offenses cognizable under the laws of the State, committed
within their respective circuits.” Under HRS § 604–8(a) (Supp.
2001), the criminal jurisdiction of the district courts is
limited to “criminal offenses punishable by fine, or by
imprisonment not exceeding one year whether with or without
fine.” However, misdemeanor or petty offenses may be brought in
circuit court if, for example, they are related to a felony
offense as prescribed by the Hawaii Revised Statutes. See State
v. Aiu, 59 Haw. 92, 97 n.8, 576 P.2d 1044, 1048 n.8 (1978)
(observing in a case involving both felony and misdemeanor
charges arising from the same course of conduct that “both the
misdemeanor and felony charges in this case could have been
joined and tried in circuit court”). Jurisdiction over a charge
may also transfer from the district court to the circuit court
if a district court defendant exercises a right to a trial by
jury. See HRPP Rule 5(b)(3) (2014) (describing the procedures
by which district court defendants who do not waive their right
to a jury trial “shall [be] commit[ted] . . . to the circuit
court for trial by jury”). If in either of these circumstances
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charges are subsequently dismissed without prejudice, it would
appear unreasonable to base a defendant’s right of appeal on
whether a misdemeanor charge had been joined with a felony
accusation or whether the defendant had requested a jury trial
on a misdemeanor charge.10
Further, the ICA’s interpretation of HRS § 641-11
would result in broader appellate rights being afforded to those
faced with less serious crimes and the denial of such rights to
those faced with charges of a greater gravity. Permitting those
faced with misdemeanor and petty charges to appeal an order of
dismissal without prejudice while denying that same right to
circuit court defendants does not take into account that those
faced with more serious charges may have an equal or greater
interest in appealing an order of dismissal without prejudice so
as to preclude reprosecution. Interests relating to judicial
economy and practicality likewise suggest that in such
circumstances, it would be inconsistent to permit an immediate
appeal from an order of dismissal without prejudice from the
10
We further observe that under such an interpretation of HRS §
641-11, a district court defendant who wishes to exercise a constitutional
right to a trial by jury--thereby resulting in the commitment of the case to
circuit court--would be effectively deprived of the right to appeal an order
of dismissal without prejudice. A district court defendant in such a
situation may therefore be burdened in the exercise of the jury trial right
insofar as the invocation of the constitutional right deprives the defendant
of the statutory right to appeal.
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district court yet to preclude an appeal from the same order
issued by the circuit court when the underlying charge may be
identical. See Keliipuleole v. Wilson, 85 Hawaii 217, 221-22,
941 P.2d 300, 304-05 (1997) (“[a] rational, sensible and
practicable interpretation [of a statute] is preferred to one
which is unreasonable or impracticable” (alterations in
original) (quoting State v. Lobendahn, 71 Haw. 111, 112, 784
P.2d 872, 873 (1989))).
Relatedly, contrary to the State’s contention, it is
not readily apparent that circuit court defendants have the
right to seek an interlocutory appeal of an order of dismissal
without prejudice pursuant to HRS § 641-17 (Supp. 2004). HRS §
641-17 provides in relevant part that “[u]pon application . . .
an appeal in a criminal matter may be allowed to a defendant
from the circuit court . . . from a decision denying a motion to
dismiss or from other interlocutory orders.” HRS § 641-17
(emphasis added). The circuit court’s determination whether to
grant an interlocutory appeal under the statute is subject to
whether the judge, “in the judge’s discretion,” believes that
such an appeal would be “advisable for a more speedy termination
of the case.” Id. (emphasis added).
Thus, HRS § 641-17 clearly affords circuit court
defendants the right to seek an interlocutory appeal of a denial
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of a motion to dismiss. Id. However, it is not clear that the
same statutory right attaches to the grant of a motion to
dismiss. Indeed, the text of the statute suggests that such an
order would not be subject to HRS § 641-17; review of an order
of dismissal is not necessarily “advisable” to facilitate “a
more speedy termination of the case” in such circumstances
because, by virtue of the order, proceedings have already
terminated. Id.; see also Kalani, 87 Hawaii at 261-62, 953 P.2d
at 1359-60 (describing legal effect of order dismissing
proceedings without prejudice). For this reason, the State’s
characterization of an order of dismissal without prejudice--
which represents a final termination of the case--as an
interlocutory order subject to discretionary appeal within the
meaning of the statute may likewise be incorrect. See
Interlocutory, Black’s Law Dictionary (10th ed. 2014) (defining
“interlocutory” as “interim or temporary; not constituting a
final resolution of the whole controversy”).
As we described in Kalani, 87 Hawaii at 261-62, 953
P.2d at 1359-60, an order of dismissal without prejudice leaves
“nothing further to be accomplished in the trial court.” The
proceedings are ended, and, therefore, “an order granting a
motion to dismiss is final.” Id. Thus, in light of the focus
of our caselaw on general considerations of finality in
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interpreting HRS § 641-11, the legislative intent behind the key
language in the statute, the history of HRS § 641-11 as it
relates to parallel statutes setting forth the rights of appeal
of the State and district court defendants, and the principle
that HRS § 641-11 is to be construed in pari materia with other
provisions authorizing appeals in criminal matters, we conclude
that a circuit court defendant may appeal an order dismissing
proceedings without prejudice under HRS § 641-11.11
V. CONCLUSION
We conclude that HRS § 641-11 authorizes a defendant’s
appeal in a criminal matter from a circuit court order
dismissing the proceedings without prejudice.12 The ICA’s Order
Dismissing the Appeal was based on the ICA’s conclusion that it
11
We also observe that affording a right of appeal of an order of
dismissal without prejudice to district court defendants but denying that
right to circuit court defendants would yield anomalous results. See
Lawrence, 139 Hawaii at 201, 386 P.3d at 485 (finding jurisdiction under HRS
§ 641-11 over a judgment of acquittal and order of commitment in part because
“to construe [the statute] to preclude an appeal under the circumstances of
[the] case” would be “anomalous” (citing State v. Burgo, 71 Haw. 198, 202,
787 P.2d 221, 223 (1990))). That is, it is rational, sensible, and
practicable to interpret HRS § 641-11 to afford defendants the right to
appeal from an order of dismissal without prejudice issued by the circuit
court. See Keliipuleole, 85 Hawaii at 221-22, 941 P.2d at 304-05 (“[a]
rational, sensible and practicable interpretation [of a statute] is preferred
to one which is unreasonable or impracticable” (alterations in original)
(quoting Lobendahn, 71 Haw. at 112, 784 P.2d at 873)).
12
To the extent that the ICA’s prior decisions in State v. Kim, 109
Hawaii 59, 60, 122 P.3d 1157, 1158 (App. 2005), and State v. Hern, 133 Hawaii
59, 62 n.5, 323 P.3d 1241, 1244 n.5 (App. 2013), suggest that a circuit court
defendant may not appeal an order of dismissal without prejudice, they are
therefore incorrect.
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lacked jurisdiction under HRS § 641-11 to review Nicol’s appeal
of the circuit court’s Order of Dismissal.13 Accordingly, the
ICA’s January 11, 2017 Order Dismissing the Appeal is vacated,
and the case is remanded to the ICA for proceedings consistent
with this opinion.
Brook Hart and /s/ Mark E. Recktenwald
Chad N. Enoki /s/ Paula A. Nakayama
for petitioner
/s/ Sabrina S. McKenna
Keith M. Kaneshiro and
Stephen K. Tsushima /s/ Richard W. Pollack
for respondent /s/ Michael D. Wilson
13
In light of our conclusion with respect to jurisdiction based on
HRS § 641-11, it is not necessary to determine whether jurisdiction exists
pursuant to this court’s supervisory authority set forth in HRS § 602-4
(1993) or under the collateral order doctrine; for the same reason, we also
do not reach the constitutional issues raised by Nicol on appeal.
33