                                                       Electronically Filed
                                                       Supreme Court
                                                       SCWC-11-0000644
                                                       11-APR-2012
                                                       09:31 AM



                       NO. SCWC-11-0000644

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


        STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

                               vs.

          DENNIS HERN, Petitioner/Defendant-Appellant.


         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
        (ICA NO. CAAP-11-0000644; CASE NO. 1DTA-11-00302)

       ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI,
             VACATING ICA ORDER DISMISSING APPEAL FOR
        LACK OF JURISDICTION, AND REMANDING APPEAL TO ICA
  (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ. and
     Circuit Judge Crandall, in place of Duffy, J., recused)

          Petitioner/defendant-appellant Dennis Hern filed a

timely application for writ of certiorari on February 27, 2012 to

review the intermediate court of appeals' (ICA) February 14, 2012

Order Dismissing Appeal for Lack of Appellate Jurisdiction.

Petitioner appealed the district court's August 23, 2011 judgment

dismissing without prejudice Case No. 1DTA-11-00302.    The ICA

concluded that the August 23, 2011 judgment was not a final

decision appealable pursuant to HRS § 641-12 (Supp. 2011) because

the judgment dismissing without prejudice is not "a decision on

the merits and does not include a sentence," citing State v.

Valiani, 57 Haw. 133, 134, 532 P.2d 75, 76 (1976), United States
v. Tsoie, 966 F.2d 1357, 1359 (10th Cir. 1992), and State v.

Kilborn, 109 Hawai#i 435, 442, 127 P.3d 95 102 (App. 2005).

            HRS § 641-12 authorizes appeals from "all final

decisions and final judgments of district courts in criminal

matters."    District court Case No. 1DTA-11-00302 was dismissed by

the district court, without prejudice, by judgment of August 23,

2011, for failure to commence trial within the six-month period

prescribed by HRPP Rule 48.    The August 23, 2011 judgment

terminated the proceedings in Case No. 1DTA-11-00302.

Cf. State v. Kalani, 87 Hawai'i 260, 261-62, 953 P.2d 1358, 1359-

60 (1998) (finding jurisdiction to consider an appeal brought by

prosecution under HRS § 641-13(1), since "a dismissal without

prejudice is a final order -- it terminates the current case")

(emphasis in original)).    It is the final decision of the

district court that is appealable by petitioner pursuant to HRS §

641-12.   The ICA's reliance on Valiani, Tsoie and Kilborn was

misplaced.

            Petitioner's application for writ of certiorari is

accepted.    The ICA's February 14, 2012 Order Dismissing Appeal

for Lack of Appellate Jurisdiction is vacated.    Petitioner's

appeal is remanded to the ICA for disposition.

            DATED: Honolulu, Hawai#i, April 11, 2012.

                                /s/ Mark E. Recktenwald

                                /s/ Paula A. Nakayama

                                /s/ Simeon R. Acoba, Jr.

                                /s/ Sabrina S. McKenna

                                /s/ Virginia L. Crandall

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