State v. Olive

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
23-MAY-2025
08:04 AM
Dkt. 57 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

STATE OF HAWAI‘I, Plaintiff-Appellee
v. WENDELL KEITH OLIVE, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CPC-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and Guidry, JJ.)

In this appeal, Defendant-Appellant Wendell Keith
Olive (Olive) challenges the Circuit Court of the First
Circuit's (Circuit Court) 1 approval of Plaintiff-Appellee State
of Hawaiʻi's (State) "Motion for Nolle Prosequi Without Prejudice
as to Defendant Olive" (Motion for Nolle Prosequi), where Hawaiʻi
law did not permit the offense of first-degree Violation of

1 The Honorable Clarissa Y. Malinao presided.
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Privacy to be charged by Felony Information. 2 Olive contends the
nolle prosequi should have been with prejudice. We affirm.
After criminal proceedings against Olive had been
ongoing since April 2021, the State filed a September 22, 2022
Motion for Nolle Prosequi, declining further prosecution and
requesting that the nolle prosequi be entered without prejudice.
The Circuit Court approved the motion. No reason was supplied
for the nolle prosequi request. 3 Olive filed a motion for
reconsideration, which requested, inter alia, that the Circuit
Court allow Olive to be heard on whether the nolle prosequi
should be with or without prejudice. The Circuit Court's denial
of reconsideration of the without-prejudice dismissal is at
issue in this appeal.
Olive appeals from the Circuit Court's November 14,
2022 "Findings of Fact, Conclusions of Law, and Order Denying
[Olive]'s Motion to Reconsider" (Order Denying Reconsideration).
Olive raises two points of error, contending that: "the
prosecution failed to prosecute with due diligence"; and "this
matter should have been dismissed with prejudice."

2 The April 5, 2021 Felony Information charged Olive with four
counts of Violation of Privacy in the First Degree, in violation of Hawaii
Revised Statutes (HRS) § 711-1110.9(1)(a) and (b). These offenses are
classified as Class C felonies. HRS § 711-1110.9(2) (2014 & 2018 Supp.).

HRS § 806-83 (2014 & 2017 Supp.) authorizes class C felonies to
be charged by Felony Information, with exceptions; first-degree violation of
privacy is one of the excepted offenses for which Felony Information charging
is prohibited.

3 HRS § 806-56 (2014), entitled "Nolle prosequi," provides: "No
nolle prosequi shall be entered in a criminal case . . . except by consent of
the court upon written motion of the prosecuting attorney stating the reasons
therefor. The court may deny the motion if it deems the reasons
insufficient . . . ." While the nolle prosequi motion here was thus
deficient for not "stating the reasons therefor[,]" that is not at issue in
this appeal; and in any event, the record reflects that the reason for the
nolle prosequi was subsequently supplied.

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Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve Olive's
contentions as follows.
At the November 3, 2022 hearing on Olive's motion for
reconsideration, the State clarified that it "intend[ed] to
refile the charges"; it dismissed the charge because "the case
need[ed] to be charged via grand jury rather than felony
information"; and it "intend[ed] to set far lower bail than
originally set" to avoid "penalizing [Olive] in this case
because of the refiling." The State also pointed out that Olive
was "the one that has caused all of the delays in this case, not
the State." Olive argued that a dismissal without prejudice
would result in further delay of his prosecution, that the delay
would violate his "right to a speedy trial," and that the
Circuit Court was required to consider the factors under State
v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981) (Estencion
factors) in determining whether to dismiss with or without
prejudice. 4
The Circuit Court orally ruled that the Estencion
factors applied to "Speedy Trial/Rule 48 violations," and these
issues did not apply based on the record; and "there's not been
any indication" of "a delay of prosecution due to lack of due
diligence on behalf of the State or lack of prosecution." The
Circuit Court further noted that even if it were to consider the

4 A trial court must consider the following Estencion factors in
determining whether to dismiss a case with or without prejudice for a Hawaiʻi
Rules of Penal Procedure (HRPP) Rule 48 or speedy trial violation: (1) "the
seriousness of the offense"; (2) "the facts and the circumstances of the case
which led to the dismissal"; and (3) "the impact of a reprosecution on the
administration of this chapter and on the administration of justice."
Estencion, 63 Haw. at 269, 625 P.2d at 1044 (citation omitted).

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Estencion factors, they weighed in favor of dismissal without
prejudice, as follows:
You know, even if this Court were to not find
persuasive the factors relied by [sic] [defense counsel],
the Court will point out that these are four counts of
Violation of Privacy in the First Degree. Each count
carries a maximum imprisonment as a Class C felony of five
years in prison, $10,000 fine. Albeit the Court recognizes
that the procedural history, as both counsels are very
familiar as to the date of the alleged offenses, the
procedural history, no one is at fault and no one will be
at fault for the COVID jury trial postponements that
occurred during the duration and pendency of this case
prior to the matter being dismissed by the State without
prejudice.

. . . the Court does find as such that the charges
are serious. And furthermore, when looking at the
examination of the procedural history regarding the facts
and circumstances that led to the dismissal, albeit as
frustrating as Mr. Olive has expressed on record, the
State has indicated that information that wasn't known at
the time suddenly became known close in time to when the
nolle prosequi without prejudice was filed September 22,
2022.

Without nothing more, the Court can't
determine and cannot find that the State has acted in
such a manner that would give rise to malicious
prosecution. And that's a high standard. There needs to
be something more in this record to point out that the
State has acted clearly in bad faith.

The Court understands Mr. Olive's financial
stresses, deprivation-of-freedom stresses, appointment of
counsel given the numerous attorneys that have been
appointed to represent him. And frankly he does believe
that justice too long delayed is justice denied. . . .

But the Court also finds that the factors for
consideration lean towards that this matter proceed on
the merits of the case and that it's important that
criminal prosecutions occur to be heard on merits of the
case, and that is the overwhelming factor for this matter
to proceed as such. The initiation of prosecution, as
the State has discovered, must go by way of indictment.
It's their prerogative. They still have to get the
indictment by a grand jury. Then the case will go
through the normal process, to which Mr. Olive has
described is not something that he agrees with. And that
will impact him further.

However, in balancing all the factors, the
Court finds that this motion for recon [sic] will be

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respectfully denied and that the nolle prosequi for --
without prejudice shall be correctly noted as ex parte
motion. And that shall remain standing.

(Emphases added.)
The Circuit Court's subsequently filed Order Denying
Reconsideration stated: Olive "relies upon State v. Estencion
. . . in his arguments" but "[t]he framework of Estencion and
its progeny are directed towards speedy trial and HRPP Rule 48
violations"; "the charges are serious"; "the procedural history
did not involve any continuances requested by the State"; the
State moved to nolle prosequi "close in time to becoming aware
that the initiation of prosecution need[ed] to proceed via
Indictment"; "[t]he Court [could not] find that the State acted
in bad faith or a manner that would rise to malicious
prosecution"; and "the Estencion factors weigh in favor of this
case being heard on its merits."
We review a court's decision to dismiss a case with or
without prejudice for an abuse of discretion. See State v.
Moriwake, 65 Haw. 47, 57, 647 P.2d 705, 713 (1982) (reviewing
for abuse of discretion, where the trial court dismissed the
indictment with prejudice).
Here, the Circuit Court also noted that it could
analyze dismissal with or without prejudice on "other bases"
such as "State v. Moriwaki" [sic] and "State v. Mageo," under
which "the Court balances the interest of the State against
fundamental fairness to the defendant with the added ingredient
of the orderly function of the Court system." 5 It does not

5 State v. Mageo, 78 Hawaiʻi 33, 37, 889 P.2d 1092, 1096 (App.
1995), applied the following framework from Moriwake, circumscribing the
parameters of "[a] trial court's exercise of its inherent power to dismiss a
criminal case with prejudice" as "a balancing of the interest of the state
against fundamental fairness to a defendant with the added ingredient of the
orderly functioning of the court system" (Mageo/Moriwake framework).
(Cleaned up.)

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appear that the Circuit Court applied the Mageo/Moriwake
framework, and neither party addresses whether this framework
should have been applied here. The Circuit Court acknowledged
that Estencion did not apply, but apparently applied those
factors on an arguendo basis; Olive does not challenge the
Circuit Court's arguendo application of the Estencion factors.
While it is not clear whether the applicable law for
dismissals with or without prejudice applies when reviewing
whether a nolle prosequi should be with or without prejudice,
the parties do not question its application in this case. We
need not address this issue, as we are able to resolve this
appeal by confining our review to the argument and authority
Olive relies on in his Opening Brief.
First, Olive relies on a quote from State v. Baron, 80
Hawai‘i 107, 905 P.2d 613 (1995), that the "prosecutor has the
responsibility" to ensure that "the defendant is accorded
procedural justice," to argue that the State failed to exercise
"due diligence when filing an information charge . . . that
violated the [HRS]"; when it "had Olive incarcerated for 3 days
before he was able to . . . secure a bail bond"; and "when it
subjected Olive to over 16 months of criminal litigation before
moving to dismiss without prejudice[.]" Olive cites Mageo as
the source of the "due diligence" standard, which states that
"[i]n criminal cases, 'the power of a court to dismiss a case on
its own motion for failure to prosecute with due diligence is
inherent.'" Mageo, 78 Hawai‘i at 37, 889 P.2d at 1096 (cleaned
up) (quoting Estencion, 63 Haw. at 268, 625 P.2d at 1043).
Second, Olive argues, again citing Mageo, that a trial court
exercising its "inherent power to dismiss a charge with or
without prejudice for the failure to prosecute with due
diligence . . . must clearly articulate the reasons for its

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decision" to enable appellate review for the proper exercise of
its discretion.
Regarding his first argument, Olive does not point to
any authority that equates what appears to be an inadvertent
charging error, to a lack of due diligence warranting a nolle
prosequi with prejudice. The Circuit Court's findings that the
State did not act in "bad faith" or in a "malicious" manner are
not challenged on appeal. Olive's three-day incarceration prior
to posting bond and going through "16 months of criminal
litigation" are not atypical for a criminal felony prosecution,
in light of the "COVID jury trial postponements" and "numerous"
court-appointed counsels for Olive that the Circuit Court noted
in its ruling. These circumstances argued by Olive do not
establish a failure to prosecute with due diligence requiring a
nolle prosequi with prejudice.
Regarding Olive's second argument, the Circuit Court
sufficiently articulated its reasons to reaffirm the nolle
prosequi without prejudice, orally and in its subsequently filed
order. The Circuit Court noted that the four Class C felony
charges against Olive were "serious"; that "no one [was] at
fault . . . for the COVID jury trial postponements that
occurred" before the case was nolle prosequied; that it did not
find there was "malicious prosecution" or that the State acted
"in bad faith"; acknowledged Olive's "financial stresses,
deprivation-of—freedom stresses"; and also noted that "numerous
attorneys" had "been appointed to represent [Olive]."
On this record, we conclude the Circuit Court did not
abuse its discretion in granting the Motion for Nolle Prosequi
without prejudice. See Moriwake, 65 Haw. at 57, 647 P.2d at
713.

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For the foregoing reasons, we affirm the November 14,
2022 Order Denying Reconsideration, filed by the Circuit Court
of the First Circuit.
DATED: Honolulu, Hawai‘i, May 23, 2025.
On the briefs:
/s/ Katherine G. Leonard
Walter J. Rodby,
Acting Chief Judge
for Defendant-Appellant.
/s/ Karen T. Nakasone
Stephen K. Tsushima,
Associate Judge
Deputy Prosecuting Attorney,
City and County of Honolulu,
/s/ Kimberly T. Guidry
for Plaintiff-Appellee.
Associate Judge

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