Martinez v. State

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-AUG-2025
07:59 AM
Dkt. 48 ODSLJ

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

MARSHALL MARTINEZ, Petitioner-Appellant,
v.
STATE OF HAWAI#I; SHANNON CLUNEY, Respondents-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPN-XX-XXXXXXX)

ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Hiraoka, Presiding Judge, Wadsworth and McCullen, JJ.)

Upon review of the record in CAAP-XX-XXXXXXX and

2CPN-XX-XXXXXXX,1 it appears that:

(1) On January 17, 2024, self-represented Petitioner-

Appellant Marshall Martinez (Martinez) filed the "Notice of

Partial Appeal" from the December 28, 2023 "Order Regarding

Petitioner's Motion to Argue on Non-Conforming Rule 40 Petition"

(December 28, 2023 Order) entered by the Circuit Court of the

Second Circuit (circuit court).

(2) Hawai#i Rules of Penal Procedure (HRPP) Rule 40(h)

states "[a]ny party may appeal from a judgment entered in the

proceeding in accordance with Rule 4(b) of the Hawai#i Rules of

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The court takes judicial notice of the record in 2CPN-XX-XXXXXXX.
Hawai#i Rules of Evidence Rule 201.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

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 before the entry of the order." Grattafiori v.

State, 79 Hawai#i 10, 13, 897 P.2d 937, 940 (1995).

(3) The record indicates that the circuit court has

not entered a decision that resolves Martinez's HRPP Rule 40

petition for post-conviction relief.

(4) The appeal is premature and the court lacks

appellate jurisdiction because the circuit court has not entered

an appealable final order. See id. at 14, 897 P.2d at 941

("While we treat an appeal as timely where a defendant has filed

his or her notice of appeal after the court has announced an oral

decision but before the entry of a written order or judgment, see

HRAP 4(b), we cannot do so where the court has rendered no
decision whatsoever.").

(5) When the court "perceive[s] a jurisdictional

defect in an appeal, [it] must, sua sponte, dismiss that appeal."

Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986).

Therefore, IT IS HEREBY ORDERED that the appeal is

dismissed for lack of appellate jurisdiction.

DATED: Honolulu, Hawai#i, August 27, 2025.

/s/ Keith K. Hiraoka
Presiding Judge

/s/ Clyde J. Wadsworth
Associate Judge

/s/ Sonja M.P. McCullen
Associate Judge

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