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                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-11-0001015
                                                               10-FEB-2014
                                                               08:15 AM




                             SCWC-11-0001015

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


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

                                     vs.

                         DANIEL JOSEPH JOHNSON,
                   Petitioner/Defendant-Appellant.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-11-0001015; CR. NO. 94-189K)

                        MEMORANDUM OPINION
(By: Recktenwald, C.J., Nakayama, Acoba, McKenna and Pollack, JJ.)

           This appeal arises from a series of unfortunate

clerical errors.     On September 13, 1995, Petitioner/Defendant-

Appellant Daniel Joseph Johnson (Johnson) entered a deferred plea

in the Circuit Court of the Third Circuit (circuit court) to the

charge of promoting a dangerous drug in the third degree.              The

circuit court subsequently set aside Johnson’s deferral and he

was placed on probation.       However, unbeknownst to the State or to
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Johnson, after Johnson’s deferral was set aside, an order of

discharge and dismissal that purportedly dismissed the original

charge against Johnson was mistakenly filed.          Apparently unaware

of the order of discharge and dismissal, the circuit court

proceeded to revoke Johnson’s probation numerous times in the

following years.    After the erroneous order of discharge and

dismissal was brought to the circuit court’s attention, the court

attempted to remedy that order in an August 29, 2011 order of

correction.   On November 17, 2011, the circuit court again

revoked Johnson’s probation and imposed a five year sentence.

          Johnson appealed to the Intermediate Court of Appeals

(ICA), and in a memorandum opinion the ICA affirmed the circuit

court’s November 17, 2011 order of revocation and resentencing.

We vacate the ICA’s July 29, 2013 judgment on appeal and June 10,

2013 memorandum opinion due to a previously unidentified clerical

error in the circuit court’s August 29, 2011 order of correction.

                             I.   BACKGROUND

          On November 3, 1994, Johnson and his brother, co-

defendant Benjamin Michael Johnson, were indicted, inter alia,

for promoting a dangerous drug in the third degree in violation

of Hawai#i Revised Statutes (HRS) § 712-1243(1) (1993), in

criminal case number (Cr. No.) 94-189K.         On March 30, 1995, and

September 13, 1995, the circuit court entered orders granting


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Benjamin Michael Johnson and Johnson, respectively, deferred

acceptance of guilty pleas to the charge of promoting a dangerous

drug in the third degree.1       As a result of multiple probation

violations stemming from Johnson’s abuse of drugs and alcohol, on

June 5, 1996, the State filed a motion to set aside Johnson’s

deferred acceptance of guilty plea.         On June 5, 1998, the circuit

court granted the State’s motion, accepted Johnson’s guilty plea,

and resentenced Johnson to five years of probation with sixty

days of incarceration as a special term of probation.

            On May 16, 2000, a purported order of discharge and

dismissal for Cr. No. 94-189K as to Johnson’s charge of promoting

a dangerous drug in the third degree was filed.           The order

referenced the deferred acceptance of guilty plea entered by the

circuit court on March 30, 1995 and stated that “the State ha[d]

not filed a motion to set aside the deferred acceptance of plea,

nor ha[d] filed a motion to adjudicate the Defendant, nor ha[d]

otherwise informed the Court that Defendant ha[d] not complied

with the terms and conditions of the Court order.”

            Following the court’s 1998 acceptance of Johnson’s

guilty plea, and apparently unaware of the purported dismissal

order filed May 16, 2000, the circuit court repeatedly revoked



      1
            The Honorable Ronald Ibarra presided in all proceedings between
1995 and 2002.

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Johnson’s probation and resentenced him to additional periods of

probation and incarceration.       On August 14, 2009, the circuit

court again issued an order revoking Johnson’s probation and

resentencing Johnson to an indeterminate term of five years of

incarceration with credit for time served.2          The circuit court

elaborated upon its initial order in an additional order filed

September 3, 2009, stating that Johnson willfully and inexcusably

violated substantial terms of probation by failing to submit to

two drug tests, failing to make child support payments as ordered

by the family court, and traveling without his probation

officer’s permission.      Johnson appealed the circuit court’s

September 3, 2009 order to the ICA.

           On November 18, 2009, after learning of the May 16,

2000 dismissal order, the State filed a motion in the circuit

court to correct the dismissal order.         The State noted that the

May 16, 2000 dismissal order had “a clerical mistake in its

caption ‘(As to DANIEL JOSEPH JOHNSON)’ and should have referred

instead to co-Defendant Benjamin Michael Johnson.”            The State

explained that the conditions described in the order applied to

Benjamin Michael Johnson, rather than Johnson.

           By summary disposition order of March 29, 2011, the ICA


      2
            The Honorable Elizabeth A. Strance presided in all proceedings
between 2006 and 2011. There were no filings in this case between 2002 and
2006.

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held that due to the May 16, 2000 dismissal order, it was plain

error for the circuit court to resentence Johnson to a five year

term of imprisonment on September 3, 2009.         State v. Johnson,

Nos. 30044 & 30084, 2011 WL 1144855 at *2 (Haw. App. March 29,

2011) (SDO).    The ICA acknowledged, however, that the State had

filed a motion to correct the clerical error in the May 16, 2000

dismissal order, and the ICA remanded the case to the circuit

court to address that issue.      Id.

            On August 29, 2011, the circuit court attempted to

resolve the clerical error by issuing an order granting the

State’s motion to correct the clerical mistake on the May 16,

2000 dismissal order.     The circuit court recognized that the

dismissal order contained a clerical error in its caption and

stated that the order should not have referred to Johnson, but

“should have referred instead to co-defendant Benjamin Michael

Johnson.”    Importantly, the order concluded: “It is hereby

ordered that the Order of Discharge and Dismissal filed May 16,

2009, be set aside.”     On November 17, 2011, the circuit court

entered its findings of fact, conclusions of law and order

revoking Johnson’s probation and reimposing the five year

sentence with credit for time served.

            Johnson appealed the circuit court’s order of

revocation and resentencing to the ICA, arguing in part, that the


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May 16, 2000 order of discharge and dismissal made all subsequent

actions taken in the case a nullity.        The ICA held that

“[i]rrespective of whether the Circuit Court properly set aside

the Order of Discharge and Dismissal, the Circuit Court lacked

jurisdiction to enter the order in the first instance” because

Johnson’s deferred acceptance of guilty plea was set aside and

his conviction was final before the entry of the order of

discharge and dismissal.      State v. Johnson, No. CAAP-11-0001015,

2013 WL 2476724 at *3 (Haw. App. June 10, 2013) (mem.).

                            II.   DISCUSSION

A.     The circuit court lacked statutory authority to enter the
May 16, 2000 order of discharge and dismissal.

           We agree with the ICA insofar as concluding that the

May 16, 2000 order of discharge and dismissal was issued in

error.   On June 5, 1998, two years before the circuit court

issued its order of discharge, it set aside Johnson’s deferred

acceptance of guilty plea and convicted him due to his non-

compliance with the terms and conditions of the plea.            Thus, not

only did the circuit court make a clerical error when it used the

incorrect name in the order of discharge and dismissal, more

importantly, the circuit court lacked the statutory authority to

dismiss a charge of which Johnson had already been convicted.




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B.     The ICA erred when it affirmed the circuit court’s
November 17, 2011 order revoking Johnson’s probation and
resentencing him to five years of imprisonment.

            On remand from the ICA to correct the error in the May

16, 2000 dismissal order, the circuit court entered an order that

contained yet another mistake.        The circuit court’s August 29,

2011 order purportedly corrected a nonexistent May 16, 2009 order

of discharge and dismissal.       Due to this second clerical mistake,

the circuit court failed to set aside the May 16, 2000 dismissal

order.    Thus, that order was still in effect when the circuit

court issued its November 17, 2011 order of revocation and

resentenced Johnson.3      While the circuit court lacked the

statutory authority to enter the order of discharge and dismissal

in 2000, it was erroneous for the circuit court to re-sentence

Johnson without first properly correcting the May 16, 2000 order

of discharge and dismissal.




      3
            The circuit court’s August 29, 2011 order of correction also
failed to state that the order was entered nunc pro tunc.

            The purpose or function of an order nunc pro tunc is to make
            the record speak the truth. It is an inherent power of the
            court but is limited to those acts which record ‘now for
            then’ an order actually made or a judgment actually rendered
            which through some oversight or inadvertence was never
            entered upon the records of the court by the clerk or which
            was incorrectly entered.

DuPonte v. DuPonte, 53 Haw. 123, 126-27, 488 P.2d 537, 540 (1971). Because it
is undisputed that the order of May 16, 2000 was incorrectly entered as to
Johnson, the circuit court should have indicated that the order of correction
was entered nunc pro tunc.

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                            III. CONCLUSION

          We hold that the ICA erred in affirming the circuit

court’s erroneous November 17, 2011 order.         Accordingly, we

vacate the ICA’s July 29, 2013 judgment on appeal and June 10,

2013 memorandum opinion and remand this case to the circuit court

for further proceedings consistent with this opinion.

          DATED:    Honolulu, Hawai#i, February 10, 2014.

Reginald P. Minn                         /s/ Mark E. Recktenwald
for petitioner
                                         /s/ Paula A. Nakayama
Linda L. Walton
for respondent                           /s/ Simeon R. Acoba, Jr.

                                         /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack




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