Mason v. State

LAW L§BRAF?Y

NO. 30l2O
IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAfI

TAD MASON, Petitioner-Appellant,
v.
STATE OF HAWAfI, Defendants-Appellees

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APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(S.P.P. NO. 99-OOO6)

ORDER DISMISSING APPEAL

(By: Nakamura, Chief Judge, Fujise and Leonard, JJ.)

Upon review of the record, it appears that we lack

appellate jurisdiction over this appeal by Petitioner-Appellant

Tad Mason (Appellant Mason) from the Honorable Glenn Hara's

September 24, 2009 minute order regarding Appellant Mason's

petition for post-conviction relief pursuant to Rule 40 of the

HawaiYi Rules of Penal Procedure (HRPP) in S.P.P. No. 99-O6,

because the September 24, 2009 minute order is not an appealable

order, and the circuit court has not yet entered an order that

resolves all of the issues in this proceeding.
"According to HRPP [Rule] 40(h), appeals from

proceedings for post-conviction relief may be made from a

judgment entered in the proceeding and must be taken in
accordance with Rule 4(b) of the HawaFi Rules of Appellate

Procedure (HRAP)." Grattafiori v. State, 79 HawaFi l0, l3, 897

P.2d 937, 940 (1995) (internal quotation marks and brackets
omitted) (emphasis added). Under HRAP Rule 4(b)(l), a party may

file a notice of appeal "within 30 days after the entry of the

judgment or order appealed from." HRAP Rule 4(b)(l). Under

HRAP Rule 4(b)(4), a party may file a notice of appeal "after the

announcement of a decision, sentence or order but before entry of

the judgment or order[.]" HRAP Rule 4(b)(4). Nevertheless,
HRAP Rule 4(b) requires the entry of a written judgment or
written order, and HRAP Rule 4(b)(3) provides that F[a] judgment
or order is entered within the meaning of this subsection when it
is filed with the clerk of the court." HRAP Rule 4(b)(3).
Consequently, it is the general rule that "an appeal in a
criminal case is permitted only after a final judgment of the
circuit court has been rendered." State v. Baranco, 77 HawaiT_
351, 353, 884 P.2d 729, 731 (l994). "While [the supreme court]
treat[s] an appeal as timely where a defendant has filed his or
her notice of appeal after the [circuit] court has announced an
oral decision but before the entry of a written order or
judgment, . . . [the supreme court] cannot do so where the
[circuit] court has rendered no decision whatsoever."
Grattafiori v. State, 79 HawaFi at l4, 897 P.2d at 94l. Even
after the circuit court has rendered an oral decision, if the
circuit court does not enter a corresponding written order or
judgment, then "[a] notice of appeal designating [the] oral order
is nugatory." State v. Bulgo, 45 Haw. 50l, 504, 370 P.2d 480,
482 (l962) (internal quotation marks omitted).
Although the circuit court has entered the

September 24, 2009 minute order, the supreme court has explained
that "a minute order is got an appealable order." Abrams v.
Cades, Schutte, Fleminq & Wriqht, 88 Hawafi 3l9, 321 n.3, 966
P.2d 63l, 633 n.3 (l998) (emphasis added). The record on appeal
does not contain a final written order or final written judgment
that resolves Appellant Mason's HRPP Rule 40 petition for post-
conviction relief in S.P.P. No. 99-06. Therefore, Appellant
Mason's appeal is premature and we lack jurisdiction over this

appeal. Accordingly, /

IT IS HEREBY ORDERED that appellate court case number
30120 is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawafi, April`6, 20l0.

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Chief Judge

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Associate Judge