                                                     Electronically Filed
                                                     Supreme Court
                                                     SCPW-12-0000533
                                                     14-JUN-2012
                                                     09:39 AM



                       NO. SCPW-12-0000533

          IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                  MICHAEL TIERNEY, Petitioner,

                               vs.

     THE HONORABLE RICHARD K. PERKINS, JUDGE OF THE CIRCUIT
    COURT OF THE FIRST CIRCUIT, STATE OF HAWAI#I, Respondent.


                       ORIGINAL PROCEEDING
                     (S.P.P. No. 12-1-0011)

          ORDER GRANTING PETITION FOR WRIT OF MANDAMUS
   (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ.
   and Circuit Judge Nakasone, assigned by reason of vacancy)

          Upon consideration of petitioner Michael Tierney's

petition for a writ of mandamus and the papers in support, it

appears that the notice of appeal filed on May 7, 2012 in S.P.P.

No. 12-1-0011 purports to appeal the dismissal of the HRPP Rule

40 petition, but no dismissal has occurred.   The May 7, 2012

notice of appeal is not a valid notice of appeal and its filing

did not transfer jurisdiction of S.P.P. No. 12-1-0011 from the

circuit court to the appellate court.   The respondent judge's May

17, 2012 decision to the contrary was incorrect.   See State v.

Ontiveros, 82 Hawai#i 446, 449, 923 P.2d 388, 391) ("Where the

notice of appeal is jurisdictionally defective, filing the notice
does not transfer jurisdiction from the trial court to the

appellate court.").    Therefore,

          IT IS HEREBY ORDERED that the answer provision of HRAP

21(c) is suspended pursuant to HRAP 2.

          IT IS FURTHER ORDERED that the petition for a writ of

mandamus is granted.    The respondent judge shall proceed with

S.P.P. No. 12-1-0011.

          DATED: Honolulu, Hawai#i,     June 14, 2012.

                                /s/ Mark E. Recktenwald
                                /s/ Paula A. Nakayama

                                /s/ Simeon R. Acoba, Jr.

                                /s/ Sabrina S. McKenna

                                /s/ Karen T. Nakasone




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