                                                      Electronically Filed
                                                      Supreme Court
                                                      SCPW-13-0000186
                                                      24-APR-2013
                                                      03:04 PM




                         SCPW-13-0000186


           IN THE SUPREME COURT OF THE STATE OF HAWAI'I



                 ROBERT SMITH, JR., Petitioner,

                                vs.

               THE HON. GREG K. NAKAMURA, JUDGE,
      CIRCUIT COURT OF THE THIRD CIRCUIT, Respondent Judge

                                and

                  STATE OF HAWAI'I, Respondent.


                        ORIGINAL PROCEEDING

                       (CR. NO. 12-1-00463)


  ORDER DENYING WITHOUT PREJUDICE PETITION FOR WRIT OF MANDAMUS

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


          Upon consideration of petitioner Robert Smith, Jr.’s


petition for a writ of mandamus, filed on March 15, 2013, the


documents attached thereto and submitted in support thereof, and


the record, the February 8, 2013 bail condition order does not


appear to provide a mechanism by which the random testing


condition can be immediately enforced against petitioner without


a further order of the court.   Additionally, petitioner did not


directly challenge by motion the February 8, 2013 bail condition

order in the circuit court.   Petitioner, therefore, is not

entitled to mandamus relief at this time.   See Kema v. Gaddis, 91

Hawai'i 200, 204-05, 982 P.2d 334, 338-39 (1999) (a writ of

mandamus is an extraordinary remedy that will not issue unless

the petitioner demonstrates a clear and indisputable right to

relief and a lack of alternative means to redress adequately the

alleged wrong or obtain the requested action; where a court has

discretion to act, mandamus will not lie to interfere with or

control the exercise of that discretion, even when the judge has

acted erroneously, unless the judge has exceeded his or her

jurisdiction, has committed a flagrant and manifest abuse of

discretion, or has refused to act on a subject properly before

the court under circumstances in which he or she has a legal duty

to act).   Accordingly,

           IT IS HEREBY ORDERED that the petition for a writ of


mandamus and request for attorneys’ fees and costs are denied


without prejudice.


           DATED: Honolulu, Hawai'i, April 24, 2013.

                               /s/ Mark E. Recktenwald


                               /s/ Paula A. Nakayama


                               /s/ Simeon R. Acoba, Jr.


                               /s/ Sabrina S. McKenna


                               /s/ Richard W. Pollack





                                 2

