                                                       Electronically Filed
                                                       Supreme Court
                                                       SCWC-11-0000602
                                                       11-APR-2012
                                                       10:18 AM



                       NO. SCWC-11-0000602


          IN THE SUPREME COURT OF THE STATE OF HAWAI'I



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


                               vs.


        MARIA T. TIMMONS, Petitioner/Defendant-Appellant.



         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS

        (ICA NO. CAAP-11-0000602; CASE NO. 1DTA-10-04522)


       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 Maria T. Timmons filed a


timely application for writ of certiorari on March 5, 2012 to


review the intermediate court of appeals' (ICA) January 4, 2012


Order Dismissing Appeal for Lack of Appellate Jurisdiction. 


Timmons appealed the district court's August 2, 2011 order


dismissing without prejudice Case No. 1DTA-10-04522.    The ICA


concluded that the August 2, 2011 order was not a final decision


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


order 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-10-04522 was dismissed by


the district court, without prejudice, by order of August 2,


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


prescribed by HRPP Rule 48.    The August 2, 2011 order terminated


the proceedings in Case No. 1DTA-10-04522.    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 January 4, 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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