  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER




                                            Electronically Filed
                                            Intermediate Court of Appeals
                                            CAAP-XX-XXXXXXX
                                            23-JUN-2020
                                            09:35 AM

                        NO. CAAP-XX-XXXXXXX


               IN THE INTERMEDIATE COURT OF APPEALS

                      OF THE STATE OF HAWAI#I


            EDWARD J. MARTIN, Petitioner-Appellant, v.
               STATE OF HAWAI#I, Respondent-Appellee


       APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
      (CASE NO. 2PR181000012(4) (CR. NO. 2PC111000645(4)))


                              ORDER
      DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
                               AND
             DISMISSING ALL PENDING MOTIONS AS MOOT
     (By: Ginoza, Chief Judge, Leonard and Wadsworth, JJ.)
          Upon review of the record, it appears that we lack
jurisdiction over the appeal that Petitioner-Appellant Edward J.
Martin (Martin) has asserted from the December 16, 2019 order,
entered by the Circuit Court of the Second Circuit, denying
Martin's petition for post-conviction relief pursuant to Rule 40
of the Hawai#i Rules of Penal Procedure (HRPP) in S.P.P.
No. 2PR181000012.   Martin's appeal is untimely under Rule 4(b) of
the Hawai#i Rules of Appellate Procedure (HRAP).
          "[P]ursuant to HRAP Rule 4(b), an appeal from an order
denying post-conviction relief must either be filed within thirty
days after the entry of the order denying the HRPP Rule 40
petition or, in the alternative, after the announcement but
  NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

before the entry of the order."        Grattafiori v. State, 79 Hawai#i
10, 13, 897 P.2d 937, 940 (1995).         Although Martin has had a
court-appointed attorney in the underlying proceeding in S.P.P.
No. 2PR181000012,1 Martin tendered his notice of appeal to prison
officials for mailing on February 6, 2020.          The Supreme Court of
Hawai#i has held that, when a self-represented prisoner attempts
to assert an appeal, the "notice of appeal is deemed filed for
purposes of Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(a)
on the day it is tendered to prison officials by a pro se
prisoner."    Setala v. J.C. Penney Company, 97 Hawai#i 484, 485,
40 P.3d 886, 887 (2002) (internal quotation marks omitted).              In
the instant case, HRAP Rule 4(b) provides the controlling time
period for filing a notice of appeal rather than HRAP Rule 4(a).
Even if we use February 6, 2020, as the effective date of
Martin's notice of appeal, Martin did not tender his February 6,
2020 notice of appeal within thirty days after entry of the
December 16, 2019 order denying Martin's HRPP Rule 40 petition
for post-conviction relief.
            "As a general rule, compliance with the requirement of
the timely filing of a notice of appeal is jurisdictional, . . .
and we must dismiss an appeal on our motion if we lack
jurisdiction."     Grattafiori, 79 Hawai#i at 13, 897 P.2d at 940
(citations, internal quotation marks, and brackets omitted);
HRAP Rule 26(b) ("[N]o court or judge or justice is authorized to
change the jurisdictional requirements contained in Rule 4 of
these rules."); HRAP Rule 26(e) ("The reviewing court for good
cause shown may relieve a party from a default occasioned by any
failure to comply with these rules, except the failure to give
timely notice of appeal.").
            Therefore, IT IS HEREBY ORDERED that CAAP-XX-XXXXXXX is
dismissed for lack of appellate jurisdiction.



      1
         The exception for untimely appeals due to ineffective assistance of
counsel, in State v. Irvine, 88 Hawai#i 404, 967 P.2d 236 (1998), is
inapplicable to this HRPP Rule 40 matter.

                                      2
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          IT IS FURTHER HEREBY ORDERED that all pending motions
in CAAP-XX-XXXXXXX are dismissed as moot.
          DATED:   Honolulu, Hawai#i, June 23, 2020.

                                      /s/ Lisa M. Ginoza
                                      Chief Judge

                                      /s/ Katherine G. Leonard
                                      Associate Judge

                                      /s/ Clyde J. Wadsworth
                                      Associate Judge




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