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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-16-0000681
                                                              30-AUG-2017
                                                              10:03 AM




            IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


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

                                    vs.

                            DONALD NICOL,
                   Petitioner/Defendant-Appellant.


                            SCWC-16-0000681

           CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                 (CAAP-16-0000681; CR. NO. 14-1-1642)

                            AUGUST 30, 2017

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                 OPINION OF THE COURT BY POLLACK, J.

           Donald Nicol was charged in the Circuit Court of the

First Circuit (circuit court) with multiple counts of sexual

assault.   Due to pretrial delay, the circuit court dismissed the

case without prejudice pursuant to Hawaii Rules of Penal
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Procedure (HRPP) Rule 48 (2012) and the three-factor analysis of

State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981).            Nicol

appealed the circuit court’s order to the Intermediate Court of

Appeals (ICA), arguing that the circuit court erred in

dismissing the case without prejudice, thereby permitting

reprosecution of the charges.       The ICA dismissed the appeal for

lack of appellate jurisdiction based on its conclusion that the

Hawaii Revised Statutes did not permit Nicol’s appeal.            Thus,

the sole issue before this court is whether a defendant has the

right to appeal a circuit court order dismissing a case without

prejudice.

          We hold that, under Hawaii Revised Statutes (HRS) §

641-11 (Supp. 2004), a defendant may appeal from an order of the

circuit court dismissing the proceedings without prejudice, and

the ICA therefore possessed jurisdiction over Nicol’s appeal.

Accordingly, we remand the case to the ICA for resolution of the

merits of Nicol’s appellate claim.

                  I.     CIRCUIT COURT PROCEEDINGS

          On October 14, 2014, Nicol was charged by indictment

with four counts of sexual assault in the first degree in

violation of HRS § 707-730(1)(b) (Supp. 2013), four counts of

sexual assault in the second degree in violation of HRS § 707-




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731(1)(a) (Supp. 2013), and two counts of sexual assault in the

fourth degree in violation of HRS § 707-733(1)(a) (Supp. 2013).1

            On October 20, 2014, at arraignment, Nicol pleaded not

guilty to the charges.      Trial was continued multiple times to

resolve issues relating to discovery and various motions in

limine, to secure the presence of anticipated witnesses, to rule

on Nicol’s motion to dismiss the indictment based on

insufficient evidence, to reassign the case following recusal of

the presiding judge, and to address the court’s scheduling

conflicts.2    For certain periods of this time, Nicol waived his

right to a speedy trial.

            On June 7, 2016, Nicol moved to dismiss the indictment

based in part on alleged violations of his rights under HRPP

Rule 48, which requires a court to dismiss criminal charges when

trial has not commenced within six months from the date of

arrest if bail is set.      Nicol further contended that, pursuant

to the three-factor test set forth by this court in State v.



     1
            The indictment also reflects three additional counts of sexual
assault in the first degree that were stricken. Additionally, one of the
second-degree sexual assault counts was subsequently dismissed by the circuit
court by order dated April 13, 2015.
     2
            The record reflects that the Honorable Colette Y. Garibaldi was
assigned to preside over the proceedings following the recusal of the
Honorable Dexter D. Del Rosario, with the exception of the motion to dismiss
proceeding, which was held before the Honorable Paul B.K. Wong.




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Estencion, 63 Haw. 264, 625 P.2d 1040 (1981), he was entitled to

dismissal with prejudice.3

           On September 16, 2016, the circuit court entered its

Order Granting in Part and Denying in Part Defendant Donald

Nicol’s Motion to Dismiss Indictment With Prejudice (Order of

Dismissal).    With respect to Nicol’s argument based on HRPP Rule

48, the court concluded that the applicable period of delay

exceeded six months, thereby violating HRPP Rule 48 and

requiring dismissal of the charges.         The circuit court further

concluded that dismissal without prejudice was the appropriate

remedy based on its application of the three-factor test set

forth in Estencion, 63 Haw. 264, 625 P.2d 1040.

                         II.      ICA PROCEEDINGS

           Following Nicol’s appeal of the Order of Dismissal to

the ICA, the State filed a Counterstatement of Jurisdiction

arguing that the ICA lacked appellate jurisdiction to review the

circuit court’s order.         The State contended that the right of

appeal in a criminal case must be granted by statute and that no

statute afforded Nicol the right to appeal an order dismissing

proceedings without prejudice.         The State contended that circuit


     3
            Nicol also contended that the delay in commencing the trial
violated his state and federal constitutional rights to a speedy trial, which
argument the circuit court rejected.




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court defendants may only appeal from the following: (1) “the

sentence of the court in a criminal case” based on HRS § 641-11

(Supp. 2004), which sets forth the right of appeal in circuit

court criminal cases; (2) a certified interlocutory order

pursuant to HRS § 641-17 (1993);4 or (3) an order denying a

motion to dismiss based on double jeopardy principles.

According to the State, none of these bases applied in Nicol’s

case to permit the ICA’s review of the Order of Dismissal.

           In Nicol’s Statement of Jurisdiction, he submitted

that the ICA did in fact have jurisdiction to review the merits

of his appeal.     Nicol maintained that HRS § 641-11 contained an

“ambiguity as to what constitutes an appealable judgment or

order of the circuit court.”        Nicol stated that this court had

interpreted HRS § 641-12 (Supp. 2004) to grant district court

defendants the right to appeal a district court order dismissing

charges without prejudice.       Nicol also asserted that this court

had previously held that, pursuant to HRS § 641-13 (Supp. 2006),




     4
            The State further submits on certiorari that Nicol had the right
to seek the circuit court’s permission for an interlocutory appeal under HRS
§ 641-17 in this case, but that he failed to do so. Nicol responds that he
had no such right because interlocutory review of an order terminating a case
would be inappropriate and HRS § 641-17 only permits defendants to seek
interlocutory review of a decision denying a motion to dismiss.




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the State may appeal an order of dismissal from both the

district and circuit court in criminal cases.

          Nicol thus reasoned that the ability of a district

court defendant and the State to appeal an order of dismissal

shows that an order dismissing proceedings without prejudice

constitutes a final order or decision which is ripe for appeal.

Nicol also contended that an interpretation of the statutes as

prohibiting circuit court defendants from appealing orders of

dismissal yet granting such right of appeal to similarly-

situated district court defendants would result in a violation

of Nicol’s constitutional right to equal protection of the laws.

According to Nicol, HRS § 641-11 must be interpreted in a manner

that does not lead to this “unreasonable,” “absurd,” and

“unconstitutional” result.

          On January 11, 2017, the ICA issued an Order

Dismissing the Appeal for Lack of Appellate Jurisdiction (Order

Dismissing the Appeal).     The ICA stated that the case was

dismissed without prejudice by the circuit court based on a

violation of HRPP Rule 48, and, therefore, “no sentence ha[d]

been imposed.”    The ICA thus concluded that it lacked appellate

jurisdiction “because there is no ‘judgment’ in the record on

appeal as defined by [HRS] § 641-11 (2010).”          As a result, the

ICA determined that Nicol was not entitled to a review of the



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circuit court’s Order of Dismissal under HRS § 641-11 and

dismissed Nicol’s appeal.

                      III.     STANDARDS OF REVIEW

           “The existence of jurisdiction is a question of law

that we review de novo under the right/wrong standard.”             Lingle

v. Haw. Gov’t Emps. Ass’n, 107 Hawaii 178, 182, 111 P.3d 587,

591 (2005).    Additionally, “[t]he interpretation of a statute is

a question of law reviewable de novo.”           State v. Arceo, 84

Hawaii 1, 10, 928 P.2d 843, 852 (1996) (quoting State v. Camara,

81 Hawaii 324, 329, 916 P.2d 1225, 1230 (1996)).

                             IV.    DISCUSSION

           On certiorari, Nicol contends that the ICA improperly

dismissed his appeal of the circuit court’s Order of Dismissal

based on a “limited reading” and “uncritical interpretation” of

the term “judgment” in HRS § 641-11.         The State responds that

the circuit court’s Order of Dismissal is not a “judgment”

within the meaning of HRS § 641-11 because it is not “a

sentence,” and, therefore, no jurisdictional basis exists to

permit Nicol’s appeal in this case.5

     5
            At oral argument, however, counsel for the State expressed that
“with regard to the jurisdictional issue, the State’s actually in agreement
with Petitioner.” See Oral Argument at 23:09-20, State v. Nicol, SCWC-16-
0000681 (argued July 18, 2017), http://oaoa.hawaii.gov/
jud/oa/17/SCOA_071817_SCWC_16_681.mp3.




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           “The right of appeal in a criminal case is purely

statutory and exists only when given by some constitutional or

statutory provision.”      State v. Kalani, 87 Hawaii 260, 261, 953

P.2d 1358, 1359 (1998) (quoting State v. Fukusaku, 85 Hawaii

462, 490, 946 P.2d 32, 60 (1997)).         Under the Hawaii Revised

Statutes, the right to appeal in criminal cases is generally

divided into three categories: the right to appeal from the

circuit courts, the right to appeal from the district courts,

and the State’s right to appeal in both the district and circuit

courts.   See generally HRS § 641-11 (Supp. 2004) (circuit

courts); HRS § 641-12 (Supp. 2004) (district courts); HRS § 641-

13 (Supp. 2006) (State’s right to appeal).          The Hawaii Revised

Statutes also provide a specific statutory basis for the right

of circuit court defendants to seek interlocutory appeals.              See

HRS § 641-17 (Supp. 2004).

           In addition to the rights of appeal set forth in

chapter 641, this court has on several occasions stated that its

statutory supervisory powers set forth in HRS § 602-4 (1993)6 may

provide it with an independent jurisdictional basis to “prevent

and correct error and abuses where no other remedy is expressly
     6
            HRS § 602-4 (1993) states that “[t]he supreme court shall have
the general superintendence of all courts of inferior jurisdiction to prevent
and correct errors and abuses therein where no other remedy is expressly
provided by law.”




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provided for by law.”        State v. Ui, 66 Haw. 366, 370, 663 P.2d

630, 633 (1983) (observing that although this court may have

lacked jurisdiction under HRS § 641-11, it had authority under

HRS § 602-4 to invoke its supervisory powers to entertain an

appeal); see also State v. Kealaiki, 95 Hawaii 309, 317, 22 P.3d

588, 596 (2001); State v. Johnson, 96 Hawaii 462, 471, 32 P.3d

106, 115 (App. 2001).7

         A.       Right of Appeal of Circuit Court Defendants

              Our analysis begins with HRS § 641-11, which sets

forth the right to appeal from the circuit courts and provides

as follows:

              Any party aggrieved by the judgment of a circuit court in a
              criminal matter may appeal to the intermediate appellate
              court, subject to chapter 602, in the manner and within the
              time provided by the rules of court. The sentence of the
              court in a criminal case shall be the judgment. All
              appeals shall be filed with the clerk of the supreme court
              and shall be subject to one filing fee.

HRS § 641-11 (emphases added).          Thus, under HRS § 641-11, a

party aggrieved by the “judgment” of a circuit court may appeal


     7
            Additionally, although not founded in statute, this court has
held that certain appeals may be brought pursuant to the “collateral order”
exception. Kealaiki, 95 Hawaii at 316–17, 22 P.3d at 595–96. Pursuant to
this doctrine, an order or decision of the court may be appealable if it:
“(1) fully disposes of the question at issue; (2) resolves an issue
completely collateral to the merits of the case; and (3) involves important
rights which would be irreparably lost if review had to await a final
judgment.” Id. (quoting State v. Baranco, 77 Hawaii 351, 353-54, 884 P.2d
729, 731-32 (1994) (applying the collateral order exception to hold that a
defendant may take an interlocutory appeal of an order denying a pretrial
motion to dismiss based on double jeopardy grounds)).




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to the intermediate appellate court.        Id.   The statute also

states that the “sentence” shall constitute the “judgment.”                Id.

           At issue in this case is whether the statutory clause

identifying the “sentence” as the “judgment” precludes circuit

court defendants from appealing an order of dismissal without

prejudice.   “When construing a statute, [this court’s] foremost

obligation is to ascertain and give effect to the intention of

the legislature, which is to be obtained primarily from the

language contained in the statute itself.”         State v. McKnight,

131 Hawaii 379, 388, 319 P.3d 298, 307 (2013) (alteration in

original) (quoting State v. Kotis, 91 Hawaii 319, 327, 984 P.2d

78, 86 (1999)).    Additionally, “[t]he legislative history of a

statute remains relevant ‘even when the language appears clear

upon perfunctory review.’”      State v. Alangcas, 134 Hawaii 515,

526, 345 P.3d 181, 192 (2015) (quoting Richardson v. City & Cty.

of Honolulu, 76 Hawaii 46, 68-69, 868 P.2d 1193, 1215-16

(1994)).   “Were this not the case, a court may be unable to

adequately discern the underlying policy which the legislature

seeks to promulgate and, thus, would be unable to determine if a

literal construction would produce an absurd or unjust result,

inconsistent with the policies of the statute.”          Id. (quoting

Richardson, 76 Hawaii at 68-69, 868 P.2d at 1215-16).




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           The substance of HRS § 641-11 dates back to at least

1892, and, prior to the legislative session of 1925, its

predecessor statute provided that a writ of error could be

issued to “any party deeming himself aggrieved by the judgment

of a circuit court, the land court, or a district magistrate, or

by the order or decree of a circuit judge at chambers . . .

within six months from the entry of such judgment, order or

decree.”   Revised Laws of Hawaii (RLH) § 2521 (1925).           The

territorial legislature in 1925 amended the statute, however, to

include the clause at issue in this case.         The amended statute

provided in relevant part as follows:

           A writ of error . . . may be issued . . . upon the
           application of any party deeming himself aggrieved by the
           judgment of a circuit court, the land court, or a district
           magistrate, or by the order or decree of a circuit judge at
           chambers . . . within six months from the entry of such
           judgment, order or decree and the sentence of the court in
           a criminal case shall be the judgment.

1925 Haw. Sess. Laws Act 211, § 1 at 255-56 (emphasis added).

           In its committee report, the Senate Committee on

Judiciary (Committee) stated that the 1925 amendment was

intended to “more clearly define[] the time within which”

defendants could seek a writ of error in criminal cases.            S.

Stand. Comm. Rep. No. 181, in 1925 Senate Journal, at 550.               The

Committee elaborated that under both the previous and amended

versions of the statute, individuals were permitted to seek such

a writ in criminal cases “within six months from the entry of



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judgment[].”     Id. at 551.   However, the Committee was concerned

that there was ambiguity as to when the relevant six-month

period began to run.     Id.   The Committee noted that courts had

generally treated the sentence in a criminal case as the

relevant “entry of judgment” for purposes of computing the six-

month period, but it also noted that there had been “a doubt as

to the correctness of such a construction.”          Id.   The Committee

determined that the sentence of the court was indeed the

relevant event by which to measure the six-month window, and,

therefore, it specifically identified the “sentence” as the

“judgment” in its amendment to codify this interpretation of the

statute.   Id.   Thus, the legislative history surrounding the

1925 amendment to the statute classifying the “sentence” as the

“judgment” indicates that the legislature intended not to narrow

the scope of decisions and orders from which defendants could

appeal, but, rather, to more clearly establish the relevant

timeframe within which defendants could do so.

           This court’s understanding of HRS § 641-11 is further

informed by our jurisdiction’s caselaw, which suggests that

considerations of finality are the primary focus in resolving

questions of appealability under the statute.          In State v.

Johnston, for example, this court ruled that a circuit court

order denying a motion to dismiss was not appealable under HRS §



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641-11 in part because the order--which did not terminate

proceedings in the case--was deemed to be of an interlocutory

nature.    63 Haw. 9, 10, 619 P.2d 1076, 1077 (1980).         The

Johnston court concluded that the order denying the motion to

dismiss was “not a final order or judgment,” and it was

therefore not appealable under the statute.          Id.   Although the

court considered the language of HRS § 641-11 that “[t]he

sentence of the court in a criminal case shall be the judgment,”

it did not conclude that jurisdiction was lacking based on the

absence of a “sentence”; rather, this court focused on the fact

that denial of a motion to dismiss permitted proceedings to move

forward and therefore lacked finality.         Id.; see also State v.

Ferreira, 54 Haw. 485, 486-87, 510 P.2d 88, 89 (1973) (appeal

not permitted under HRS § 641-11 where judgment of conviction

lacked any indication that sentencing had occurred and where the

record suggested that “the judgment in [the] case [was] not

final”).

           In Ui, this court again considered the scope of HRS §

641-11 and elaborated that an appeal need not necessarily be

from a “sentence” for principles of finality to warrant its

adjudication.   66 Haw. at 368-69, 663 P.2d at 631-32.           In that

case, following a mistrial and dismissal of the indictment with

prejudice, the defendant’s court-appointed counsel sought an



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order awarding attorneys’ fees.          Id. at 368, 663 P.2d at 631.

After the circuit court issued the order granting counsel a

portion of the fees he sought, the defendant appealed the

attorneys’ fees order and submitted that jurisdiction under HRS

§ 641-11 was proper.        Id.   On appeal, the State cited to

Johnston, 63 Haw. 9, 619 P.2d 1076, and argued that an appeal

under the statute could only be taken “from a sentence of the

circuit court.”       Id. at 369, 663 P.2d at 632.         The Ui court

distinguished Johnston, explaining that “Johnston did not

definitively rule that an appeal under HRS § 641-11 must be from

a sentence in a criminal case.”          Id.     Rather, this court

considered Johnston to imply that “an appeal may also be brought

from an order deemed to be final.”             Id.   The Ui court

determined, however, that it need not expressly rule on this

issue because the defendant lacked standing to challenge the

order awarding his counsel attorneys’ fees.8             Id. at 369-70, 663

P.2d at 632-33 (reasoning that the defendant was not personally

“aggrieved” by the attorneys’ fees order within the meaning of

HRS § 641-11).


      8
              Although the Ui court later stated in the context of another
possible   jurisdictional basis that it “lack[ed] jurisdiction under HRS § 641-
11,” the   court concluded that it “[did] not need to decide this issue” (i.e.,
“whether   the judgment appealed from must be a sentence”). 66 Haw. at 369-70,
663 P.2d   at 632-33.




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               We again considered principles of finality as they

related to appeals in Kalani, where this court discussed the

differences between a grant and a denial of a defendant’s motion

to dismiss.       87 Hawaii at 261-62, 953 P.2d at 1359-60.          In

Kalani, we considered whether the State was entitled to appeal

an order of dismissal without prejudice pursuant to HRS § 641-

13.9       Id. at 261, 953 P.2d at 1359.       After determining that the

statute and its caselaw indicated that the State was entitled to

appeal such an order, this court observed the possible

applicability of Johnston, which it construed as indicating that

“in a criminal case, an appeal must be from a ‘final order or

judgment.’”       Id. (quoting Johnston, 63 Haw. at 11, 619 P.2d at

1077).       Although the Kalani court ultimately concluded that

Johnston possessed minimal persuasive authority because it was

based on a different statute, it reasoned that the order in


       9
               HRS § 641-13 provides in relevant part as follows:

                     An appeal may be taken by and on behalf of the State
               from the district or circuit courts to the intermediate
               appellate court, subject to chapter 602, in all criminal
               matters, in the following instances:

                     (1)   From an order or judgment quashing, setting
                           aside, or sustaining a motion to dismiss any
                     indictment, information, or complaint     or any
                     count thereof . . . .

HRS § 641-13 (Supp. 2006).




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Johnston denying a motion to dismiss differed from the order at

issue, which granted a motion to dismiss and effectively

terminated proceedings.       Id. at 261–62, 953 P.2d at 1359–60.

            When dismissal is denied in a criminal case, the circuit
            court conducts further proceedings and, presumably, the
            case eventually goes to trial. Thus, an order denying a
            motion to dismiss is not final. The present case, however,
            involved an order granting a motion to dismiss. If
            dismissal is granted, there is nothing further to be
            accomplished in the trial court and the proceedings are
            ended. Thus, an order granting a motion to dismiss is
            final.

Id.   The Kalani court further observed that if the State chose

to recharge a defendant following an order dismissing

proceedings without prejudice, “recharging [the defendant] does

not revive the original case.”         Id. at 262, 953 P.2d at 1360.

“Rather, recharging the defendant initiates a new case,” and,

therefore, “a dismissal without prejudice is a final order-it

terminates the current case.”         Id.

            An emphasis on finality is also present in State v.

Lawrence, 139 Hawaii 192, 386 P.3d 476 (App. 2016), in which the

ICA held that a judgment of acquittal and commitment based on an

insanity defense constituted a “sentence” for purposes of HRS §

641-11.    In Lawrence, the defendant was found not guilty by

reason of mental disease, disorder, or defect following a bench

trial.    139 Hawaii at 194-95, 386 P.3d at 478-79.          Accordingly,

the court issued a judgment of acquittal and an order committing

the defendant to the care and custody of the director of health


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to be placed in an appropriate institution.          Id. at 195, 386

P.3d at 479.     Following entry of the judgment of acquittal, the

defendant sought to appeal one of a series of orders issued by

the circuit court authorizing his involuntary medication while

in the State’s custody.     Id. at 195-99, 386 P.3d at 479-83.

             In considering whether his appeal was permissible

under HRS § 641-11, the ICA observed several instances in which

this court had “implicitly held” that orders regarding

involuntary treatment and medication were “appealable orders.”

Id. at 199-200, 386 P.3d at 483-84 (citing Kotis, 91 Hawaii 319,

984 P.2d 78 (appeal of a pretrial involuntary order of

medication); State v. Miller, 84 Hawaii 269, 933 P.2d 606 (1997)

(appeal of an order denying petition for conditional release

following acquittal on the ground of mental disease or disorder

and commitment to state custody); State v. Burgo, 71 Haw. 198,

787 P.2d 221 (1990) (appeal of an order revoking grant of

conditional release following acquittal and commitment to state

custody)).    The Lawrence court additionally considered that a

defendant found not guilty based on an insanity defense who was

committed to the custody of the State may be subject to

deprivation of liberty “for a prolonged, and indeed an

indefinite, period of time.”      Id. at 200, 386 P.3d at 484.         The

court reasoned that it would be “anomalous” to preclude an



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appeal “under the circumstances of [the] case” and suggested

that interpreting HRS § 641-11 to prohibit the appeal would

yield absurd results.     Id. at 201, 386 P.3d at 485 (citing

Burgo, 71 Haw. at 202, 787 P.2d at 223).         Thus, the ICA

determined that the judgment of acquittal and commitment

constituted a “sentence” for purposes of HRS § 641-11 given its

nature and finality.     Id. at 200-01, 386 P.3d at 484-85 (also

holding that the order authorizing involuntary medication was an

appealable post-judgment order).

          In keeping with this focus on finality, we have also

interpreted HRS § 641-11 to bar an appeal of orders that do not

represent final decisions of the court or otherwise terminate

proceedings.   In Kealaiki, for example, this court considered

whether a circuit court order granting a deferred acceptance of

no contest (DANC) plea was appealable under HRS § 641-11.             95

Hawaii at 311-12, 22 P.3d at 590-91.        The court explained that

in general, if a DANC plea is granted by order of the circuit

court, “acceptance of the plea is then deferred,” further

proceedings are suspended pending the defendant’s satisfaction

of certain conditions, and, upon “[s]uccessful completion of the

deferral period,” the charges are dismissed.          Id. at 315, 22

P.3d at 594.   The defendant in Kealaiki had sought to appeal the

circuit court’s order accepting his DANC plea, but prior to



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completion of the deferral period; as such, the criminal charges

remained pending at the time of appeal.            Id. at 312, 22 P.3d at

591.    This court reasoned that given the nature of the deferred

plea procedure, an order granting a DANC plea was neither a

conviction nor a sentence.         Id. at 312-13, 22 P.3d at 591-92.

The Kealaiki court therefore concluded that an appeal of an

order granting a DANC plea pending the deferral period was not

authorized by HRS § 641-11.         Id. at 312, 22 P.3d at 591.

             Decisions of this jurisdiction thus demonstrate that

our courts have not rigidly interpreted appealability pursuant

to HRS § 641-11.       Rather, we have looked to considerations of

finality and determined whether the order or decision terminated

proceedings, leaving “nothing further to be accomplished in the

trial court.”      Kalani, 87 Hawaii at 261–62, 953 P.2d at 1359–60;

see also Johnston, 63 Haw. at 10, 619 P.2d at 1077; Ui, 66 Haw.

at 368-69, 663 P.2d at 631-32; Kealaiki, 95 Hawaii at 311-12, 22

P.3d at 590-91.       Such an interpretation of HRS § 641-11 is

consistent with the legislative intent behind the statute’s

language identifying the “sentence” as the “judgment” in circuit

court proceedings, which was not intended to limit the scope of

permissible appeals under the statute, but, rather, to more

clearly establish the timeline in which an appeal could be




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pursued.     S. Stand. Comm. Rep. No. 181, in 1925 Senate Journal,

at 550-51.

     B.       Right of Appeal of District Court Defendants and
                              of the State

             Reference to the analogous rights of appeal of

district court defendants and of the State in both district and

circuit court cases is also appropriate in analyzing Nicol’s

right to appeal in this case because “[l]aws in pari materia, or

upon the same subject matter, shall be construed with reference

to each other.”     Richardson v. City & Cty. of Honolulu, 76

Hawaii 46, 55, 868 P.2d 1193, 1202 (1994) (alteration in

original) (quoting HRS § 1-16 (1985)).

             HRS § 641-13 (Supp. 2006) provides a listing of

orders, rulings, and decisions of both the district and circuit

courts from which the State may appeal, including “an order or

judgment quashing, setting aside, or sustaining a motion to

dismiss.”     HRS § 641-13(1).   Our court has interpreted this

language of HRS § 641-13 to permit the State to appeal an order

dismissing proceedings without prejudice.         See Kalani, 87 Hawaii

at 261, 953 P.2d at 1359 (“[T]he plain meaning of [HRS § 641-

13(1)] indicates that the prosecution can appeal from both

dismissals with prejudice and without prejudice.”).




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           HRS § 641-12 sets forth the right to appeal for

district court defendants and provides in relevant part as

follows:

           Appeals upon the record shall be allowed from all final
           decisions and final judgments of district courts in all
           criminal matters. Such appeals may be made to the
           intermediate appellate court, subject to chapter 602,
           whenever the party appealing shall file notice of the
           party’s appeal within thirty days, or such other time as
           may be provided by the rules of the court.

HRS § 641-12 (Supp. 2004) (emphasis added).          Thus, district

court defendants may appeal from “all final decisions and final

judgments.”   Id.

           The difference in standards between the appeals

provisions relating to district court and circuit court

defendants originated by virtue of statutory amendment and

appears to have been a byproduct of a 1972 legislative updating

of the Hawaii Revised Statutes.       Prior to 1972 and dating back

to the late 1800s, Hawaii law provided for both appeals and for

writs of errors.    Appeals were permitted from “all decisions” of

“district magistrates” in civil and criminal cases pursuant to

section 2508 of the Revised Laws of Hawaii, see RLH § 2508

(1925), and appeals were likewise permitted from all “decisions,

judgments, orders or decrees” of “circuit judges in chambers”

under section 2509, see RLH § 2509 (1925).         Under RLH § 2521

(1925), writs of error could be sought by “any party deeming

himself aggrieved by the judgment of a circuit court, the land


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court, or a district magistrate, or by the order or decree of a

circuit judge at chambers . . . within six months from the entry

of such judgment, order or decree.”        Thus, separate statutory

bases existed to permit appeals from district courts and from

circuit courts, and a separate, single statute set the terms by

which parties could seek writs of error from all lower courts.

Our statutes maintained the distinction between appeals and

writs or error for many decades.

          In 1972, the Hawaii Legislature conducted a “long

overdue” “[c]omprehensive updating and unifying” of the Hawaii

Revised Statutes.    S. Stand. Comm. Rep. No. 622-72, in 1972

Senate Journal, at 1006.      The resulting legislation (Act 89) was

the product of work done by the Committee on Coordination of

Rules and Statutes and sought to address “[o]bsolete civil

procedure provisions” dating back to the 1800s.          Id.   Act 89

removed the distinction in our statutes between “appeals” and

“writs of errors” and consolidated the two categories into one

chapter (“Appeals”), which was divided into the two subparts

currently found in the Hawaii Revised Statutes (“Appeals in

Civil Actions and Proceedings” and “Appeals in Criminal

Proceedings”).    Within the subpart “Appeals in Criminal

Proceedings,” Act 89 set forth the three subsections that exist

in the present day: appeals from the circuit courts, appeals



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from the district courts, and appeals by the State in criminal

cases.   1972 Haw. Sess. Laws Act 89, § 5 at 348-49.

          To define the right of appeal of circuit court

defendants, Act 89 borrowed from the previous language relating

to writs of error from the circuit, land, and district courts.

The legislation deleted the reference to land and district

courts and provided that “[a]ny party deeming himself aggrieved

by the judgment of a circuit court in a criminal matter, may

appeal . . . within the time provided by the Hawaii Rules of

Criminal Procedure.     The sentence of the court in a criminal

case shall be the judgment.”      1972 Haw. Sess. Laws Act 89, § 5

at 348 (emphasis added).      To define the right of appeal of

district court defendants, Act 89 relocated the prior provision

permitting appeals of “all decisions” of “district magistrates”

in both civil and criminal cases and expressly limited its

applicability to criminal cases.         Id.   Thus, as a result of the

1972 legislation, (1) any circuit court defendant “deeming

himself aggrieved by the judgment . . . in a criminal matter”

could seek an appeal, and “[t]he sentence of the court in a

criminal case” constituted “the judgment,” see HRS § 641-11

(1972), and (2) district court defendants could appeal from “all

final decisions and final judgments . . . in all criminal

matters,” see HRS § 641-12 (1972).



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          Any textual difference created by Act 89 between the

statutory rights of circuit court defendants and district court

defendants does not appear to be purposeful.          Rather than

substantively modifying the appellate rights of defendants, the

stated purpose of Act 89 was to “eliminate inconsistencies with

the rules of court; delete outmoded provisions; make

improvements of a technical nature; and transfer procedural

matters to rules of court where advisable.”          S. Stand. Comm.

Rep. No. 622-72, in 1972 Senate Journal, at 1005.           A Senate

Special Committee Report on the amendments made to the new

“Appeals” chapter was silent regarding the difference in

statutory text between HRS § 641-11 and HRS § 641-12, and it

neither explained nor referenced the treatment afforded to

circuit court versus district court defendants pursuant to the

legislation.   See id. at 1006 (stating that Senate Special

Committee Report No. 7 on Act 89 “reflect[ed] the views of” the

Senate Committee on Judiciary); see also S. Spec. Comm. Rep. No.

7, in 1972 Senate Journal, at 705 (discussing the “Appeals”

chapter created by Act 89).      Likewise, the report on Act 89

created by the Committee on Coordination of Rules and Statutes

manifests no intent to create different appellate rights for

district and circuit court criminal defendants, but, rather, to

more clearly organize and set forth the appellate rights of



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civil and criminal litigants in general.         See S. Stand. Comm.

Rep. No. 622-72, in 1972 Senate Journal, at 1006 (finding The

Report of the Committee on Coordination of Rules and Statutes to

be helpful, though not necessarily reflecting the views of the

Senate Committee on Judiciary); see also Comm. on Coordination

of Rules and Statutes, 2 Report of the Committee on Coordination

of Rules and Statutes § 641 (Sept. 1, 1971) (explaining proposed

amendments relating to appeals).

            The statutory scheme created by Act 89 remains in

effect today, and the appellate rights codified at HRS § 641-11

and HRS § 641-12 that are relevant to this case remain

substantively identical to those enacted by Act 89.           Relying on

the language specific to HRS § 641-12, courts of this

jurisdiction have interpreted the statute to grant district

court defendants the right to appeal orders of dismissal without

prejudice.    See, e.g., State v. Hern, 133 Hawaii 59, 62, 323

P.3d 1241, 1244 (App. 2013) (adjudicating on remand defendant’s

appeal of an order of dismissal without prejudice after this

court vacated the ICA’s order dismissing on jurisdictional

grounds).    Thus, under the Hawaii Revised Statutes, district

court defendants and the State in either district or circuit

court may appeal from an order dismissing proceedings without

prejudice.    Id.; Kalani, 87 Hawaii at 261, 953 P.2d at 1359.



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 C.      Nicol May Appeal the Circuit Court’s Order of Dismissal
                         Under HRS § 641-11

            This court has not previously articulated a clear

ruling as to whether circuit court defendants in criminal

matters are afforded the right to appeal an order dismissing

proceedings without prejudice under HRS § 641-11.             The text of

the statute provides that any party “aggrieved by the judgment”

of the circuit court in a criminal case may take an appeal.                  HRS

§ 641-11.     Significantly, as noted, the clause specifying that

“[t]he sentence of the court in a criminal case shall be the

judgment” was not intended to narrow the scope of orders and

decisions from which circuit court defendants could appeal.                  S.

Stand. Comm. Rep. No. 181, in 1925 Senate Journal, at 550-51.

Rather, it was intended to ensure that defendants timely

appealed and to erase ambiguity as to the deadline by which

defendants were required to do so.          Id.

            In keeping with the identification of the “sentence”

as the “judgment” as relating to issues of timing rather than

scope, appellate courts of this jurisdiction have not

interpreted HRS § 641-11 solely by considering whether or not

the relevant decision contained an order of punishment or other

formal pronouncement of guilt.         Rather, as discussed, in

determining whether dispositions are subject to appeal under the

statute, our courts have focused the inquiry on whether the


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relevant order terminated the proceedings in the case and left

nothing further to be accomplished by the lower court.            See,

e.g., State v. Johnston, 63 Haw. 9, 10, 619 P.2d 1076, 1077

(1980); Ui, 66 Haw. at 368-69, 663 P.2d at 631-32; State v.

Ferreira, 54 Haw. 485, 486-87, 510 P.2d 88, 89 (1973); State v.

Lawrence, 139 Hawaii 192, 200, 386 P.3d 476, 484 (App. 2016);

Kealaiki, 95 Hawaii at 312, 22 P.3d at 591.

          We also consider that, under the ICA’s interpretation

of the statute in this case, district court defendants may

appeal an order of dismissal without prejudice pursuant to HRS §

641-12 while circuit court defendants are denied the same right

under HRS § 641-11.     In light of the history of these

provisions, this court cannot conclude that the legislature

intended to grant one right to district court defendants yet

withhold that right from circuit court defendants.           Rather, it

appears that the legislature intended to maintain a preexisting

appellate scheme that granted to criminal defendants in general

the right to appeal final orders.        The difference in text

between the two statutes likely resulted from the concerted

effort to reorganize the appellate statutory scheme and delete

obsolete provisions, rather than to create different classes of

rights to be afforded to circuit court and district court

defendants with regard to final orders and judgments.



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           Additionally, there are several situations in which

the district and circuit courts may have jurisdiction over the

same criminal charge.     Under HRS § 603–21.5(a)(1) (Supp. 2008),

the circuit courts have jurisdiction over all “[c]riminal

offenses cognizable under the laws of the State, committed

within their respective circuits.”        Under HRS § 604–8(a) (Supp.

2001), the criminal jurisdiction of the district courts is

limited to “criminal offenses punishable by fine, or by

imprisonment not exceeding one year whether with or without

fine.”   However, misdemeanor or petty offenses may be brought in

circuit court if, for example, they are related to a felony

offense as prescribed by the Hawaii Revised Statutes.            See State

v. Aiu, 59 Haw. 92, 97 n.8, 576 P.2d 1044, 1048 n.8 (1978)

(observing in a case involving both felony and misdemeanor

charges arising from the same course of conduct that “both the

misdemeanor and felony charges in this case could have been

joined and tried in circuit court”).        Jurisdiction over a charge

may also transfer from the district court to the circuit court

if a district court defendant exercises a right to a trial by

jury.    See HRPP Rule 5(b)(3) (2014) (describing the procedures

by which district court defendants who do not waive their right

to a jury trial “shall [be] commit[ted] . . . to the circuit

court for trial by jury”).      If in either of these circumstances



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charges are subsequently dismissed without prejudice, it would

appear unreasonable to base a defendant’s right of appeal on

whether a misdemeanor charge had been joined with a felony

accusation or whether the defendant had requested a jury trial

on a misdemeanor charge.10

           Further, the ICA’s interpretation of HRS § 641-11

would result in broader appellate rights being afforded to those

faced with less serious crimes and the denial of such rights to

those faced with charges of a greater gravity.           Permitting those

faced with misdemeanor and petty charges to appeal an order of

dismissal without prejudice while denying that same right to

circuit court defendants does not take into account that those

faced with more serious charges may have an equal or greater

interest in appealing an order of dismissal without prejudice so

as to preclude reprosecution.        Interests relating to judicial

economy and practicality likewise suggest that in such

circumstances, it would be inconsistent to permit an immediate

appeal from an order of dismissal without prejudice from the


     10
            We further observe that under such an interpretation of HRS §
641-11, a district court defendant who wishes to exercise a constitutional
right to a trial by jury--thereby resulting in the commitment of the case to
circuit court--would be effectively deprived of the right to appeal an order
of dismissal without prejudice. A district court defendant in such a
situation may therefore be burdened in the exercise of the jury trial right
insofar as the invocation of the constitutional right deprives the defendant
of the statutory right to appeal.




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district court yet to preclude an appeal from the same order

issued by the circuit court when the underlying charge may be

identical.   See Keliipuleole v. Wilson, 85 Hawaii 217, 221-22,

941 P.2d 300, 304-05 (1997) (“[a] rational, sensible and

practicable interpretation [of a statute] is preferred to one

which is unreasonable or impracticable” (alterations in

original) (quoting State v. Lobendahn, 71 Haw. 111, 112, 784

P.2d 872, 873 (1989))).

          Relatedly, contrary to the State’s contention, it is

not readily apparent that circuit court defendants have the

right to seek an interlocutory appeal of an order of dismissal

without prejudice pursuant to HRS § 641-17 (Supp. 2004).            HRS §

641-17 provides in relevant part that “[u]pon application . . .

an appeal in a criminal matter may be allowed to a defendant

from the circuit court . . . from a decision denying a motion to

dismiss or from other interlocutory orders.”          HRS § 641-17

(emphasis added).    The circuit court’s determination whether to

grant an interlocutory appeal under the statute is subject to

whether the judge, “in the judge’s discretion,” believes that

such an appeal would be “advisable for a more speedy termination

of the case.”   Id. (emphasis added).

          Thus, HRS § 641-17 clearly affords circuit court

defendants the right to seek an interlocutory appeal of a denial



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of a motion to dismiss.     Id.   However, it is not clear that the

same statutory right attaches to the grant of a motion to

dismiss.   Indeed, the text of the statute suggests that such an

order would not be subject to HRS § 641-17; review of an order

of dismissal is not necessarily “advisable” to facilitate “a

more speedy termination of the case” in such circumstances

because, by virtue of the order, proceedings have already

terminated.   Id.; see also Kalani, 87 Hawaii at 261-62, 953 P.2d

at 1359-60 (describing legal effect of order dismissing

proceedings without prejudice).         For this reason, the State’s

characterization of an order of dismissal without prejudice--

which represents a final termination of the case--as an

interlocutory order subject to discretionary appeal within the

meaning of the statute may likewise be incorrect.           See

Interlocutory, Black’s Law Dictionary (10th ed. 2014) (defining

“interlocutory” as “interim or temporary; not constituting a

final resolution of the whole controversy”).

           As we described in Kalani, 87 Hawaii at 261-62, 953

P.2d at 1359-60, an order of dismissal without prejudice leaves

“nothing further to be accomplished in the trial court.”            The

proceedings are ended, and, therefore, “an order granting a

motion to dismiss is final.”      Id.    Thus, in light of the      focus

of our caselaw on general considerations of finality in



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interpreting HRS § 641-11, the legislative intent behind the key

language in the statute, the history of HRS § 641-11 as it

relates to parallel statutes setting forth the rights of appeal

of the State and district court defendants, and the principle

that HRS § 641-11 is to be construed in pari materia with other

provisions authorizing appeals in criminal matters, we conclude

that a circuit court defendant may appeal an order dismissing

proceedings without prejudice under HRS § 641-11.11

                             V.     CONCLUSION

            We conclude that HRS § 641-11 authorizes a defendant’s

appeal in a criminal matter from a circuit court order

dismissing the proceedings without prejudice.12           The ICA’s Order

Dismissing the Appeal was based on the ICA’s conclusion that it

      11
            We also observe that affording a right of appeal of an order of
dismissal without prejudice to district court defendants but denying that
right to circuit court defendants would yield anomalous results. See
Lawrence, 139 Hawaii at 201, 386 P.3d at 485 (finding jurisdiction under HRS
§ 641-11 over a judgment of acquittal and order of commitment in part because
“to construe [the statute] to preclude an appeal under the circumstances of
[the] case” would be “anomalous” (citing State v. Burgo, 71 Haw. 198, 202,
787 P.2d 221, 223 (1990))). That is, it is rational, sensible, and
practicable to interpret HRS § 641-11 to afford defendants the right to
appeal from an order of dismissal without prejudice issued by the circuit
court. See Keliipuleole, 85 Hawaii at 221-22, 941 P.2d at 304-05 (“[a]
rational, sensible and practicable interpretation [of a statute] is preferred
to one which is unreasonable or impracticable” (alterations in original)
(quoting Lobendahn, 71 Haw. at 112, 784 P.2d at 873)).
      12
             To the extent that the ICA’s prior decisions in State v. Kim, 109
Hawaii 59, 60, 122 P.3d 1157, 1158 (App. 2005), and State v. Hern, 133 Hawaii
59, 62 n.5, 323 P.3d 1241, 1244 n.5 (App. 2013), suggest that a circuit court
defendant may not appeal an order of dismissal without prejudice, they are
therefore incorrect.




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lacked jurisdiction under HRS § 641-11 to review Nicol’s appeal

of the circuit court’s Order of Dismissal.13          Accordingly, the

ICA’s January 11, 2017 Order Dismissing the Appeal is vacated,

and the case is remanded to the ICA for proceedings consistent

with this opinion.

Brook Hart and                         /s/ Mark E. Recktenwald
Chad N. Enoki                          /s/ Paula A. Nakayama
for petitioner
                                       /s/ Sabrina S. McKenna
Keith M. Kaneshiro and
Stephen K. Tsushima                    /s/ Richard W. Pollack
for respondent                         /s/ Michael D. Wilson




      13
            In light of our conclusion with respect to jurisdiction based on
HRS § 641-11, it is not necessary to determine whether jurisdiction exists
pursuant to this court’s supervisory authority set forth in HRS § 602-4
(1993) or under the collateral order doctrine; for the same reason, we also
do not reach the constitutional issues raised by Nicol on appeal.




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