State v. Borge, Jr.

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
27-AUG-2025
09:37 AM
Dkt. 42 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

STATE OF HAWAIʻI, Plaintiff-Appellant,
v.
TROY D. BORGE, JR., Defendant-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT
(CASE NO. 2CPC-XX-XXXXXXX(3))

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)

Plaintiff-Appellant State of Hawai‘i appeals from the

Circuit Court of the Second Circuit's 1 June 22, 2023 order

granting in part Defendant-Appellee Troy Borge's motion to

vacate the circuit court's "Order Re Dismissal of Indictment"

(June 22 Vacating Order). On appeal, the State contends the

circuit court erred in not determining whether the dismissal was

with or without prejudice, while Borge contends we lack

1 The Honorable Kelsey T. Kawano presided.
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jurisdiction because the State's appeal was untimely. We have

jurisdiction over this appeal, and vacate and remand.

This case is on appeal for a second time. In the

first appeal from this case, the Hawai‘i Supreme Court held the

circuit court abused its discretion in denying Borge's motion to

dismiss the indictment. State v. Borge, 152 Hawai‘i 458, 466,

526 P.3d 435, 443 (2023). Borge's motion to dismiss the

indictment was based on prosecutorial misconduct before the

grand jury. See id.

The supreme court held that the prosecutor committed

misconduct and vacated, among other orders, 2 the circuit court's

order denying Borge's motion to dismiss the indictment. Id. at

466, 466 n.12, 469, 526 P.3d at 443, 443 n.12, 446. The supreme

court then remanded the case "to the circuit court for dismissal

of the indictment and further proceedings consistent with this

opinion." Id. at 469, 526 P.3d at 446. Echoing its opinion,

the supreme court's judgment noted in part "[t]his case is

remanded to the circuit court for dismissal of the indictment

and further proceedings consistent with this opinion."

On remand, the circuit court dismissed the indictment

on May 3, 2023 (May 3 Dismissal Order). The State then moved to

clarify whether the dismissal was with or without prejudice. In

2 The supreme court also vacated the circuit court's June 7, 2021
judgment of conviction and sentence and the June 17, 2021 free-standing order
of restitution. Borge, 152 Hawai‘i at 469, 526 P.3d at 446.
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its order disposing of the motion to clarify (May 15 Order Re

Dismissal of Indictment), the circuit court noted there was "no

explicit direction from the Supreme Court directing that a

dismissal of the indictment be with prejudice" and ordered

dismissal be without prejudice.

Borge moved to vacate the May 15 Order Re Dismissal of

Indictment, arguing it exceeded the scope of remand. In its

June 22 Vacating Order, the circuit court granted Borge's motion

in part, vacating and setting aside the May 15 Order Re

Dismissal of Indictment and declaring its May 3 Dismissal Order

"shall remain in full force and effect." The State appealed

from the June 22 Vacating Order.

On appeal, the State contends the circuit court erred

in not determining whether the dismissal should be with or

without prejudice, while Borge contends this court lacks

jurisdiction because the State's appeal was untimely.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

the issues raised and the arguments advanced, we resolve this

appeal as discussed below, and vacate and remand.

(1) We first address Borge's contention that this

court lacks jurisdiction because the State's appeal was untimely

filed. Borge argues the State's appeal was untimely because the

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State filed its notice of appeal more than thirty days after the

May 3 Dismissal Order.

A "post-judgment order is appealable in its own right

only if it meets the test of finality applicable to all judicial

decisions." State v. Spears, 129 Hawai‘i 29, 292 P.3d 233,

Nos. 30690, 30529, and 30530, 2013 WL 257128, at *6 (App.

Jan. 23, 2013) (SDO) (citation omitted). "Final order means an

order ending the proceedings, leaving nothing further to be

accomplished." Id. (cleaned up).

The May 3 Dismissal Order fully resolved all issues in

the underlying case. Thus, Borge's motion to vacate the May 15

Order Re Dismissal of Indictment was a post-judgment motion.

And the June 22 Vacating Order disposing of that post-judgment

motion was a post-judgment order, which was appealable. See

generally Spears, 2013 WL 257128, at *6. The State filed its

notice of appeal within thirty days of the circuit court

entering the June 22 Vacating Order.

Thus, the State's notice of appeal was timely and this

court has jurisdiction over this appeal.

(2) The State contends the circuit court erred in

failing to determine whether the dismissal was with or without

prejudice.

Generally, "a trial court's inherent power to dismiss

a criminal case with prejudice is relevant and applicable to the

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exercise of inherent power[.]" State v. Mageo, 78 Hawai‘i 33,

38, 889 P.2d 1092, 1097 (App. 1995). "Obviously, the power

would embrace the discretion to dismiss without prejudice, if

appropriate under the circumstances." Id. at 38 n.10, 889 P.2d

at 1097 n.10.

When dismissing with prejudice, the trial court

"should issue written factual findings setting forth [its]

reasons for dismissal with prejudice so that a reviewing court

may accurately assess whether the trial court duly exercised its

discretion." State v. Hinesley, 149 Hawai‘i 380, 490 P.3d 1141,

No. CAAP-XX-XXXXXXX, 2021 WL 3113037, at *6 (App. July 22, 2021)

(mem. op.) (formatting altered) (quoting Mageo, 79 Hawai‘i at 38,

889 P.2d at 1097). And where there are no written findings

"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[,]" the case will be remanded

for determination on whether dismissal should be with or without

prejudice. Hinesley, 2021 WL 3113037, at *6, *8 (remanding case

for further proceedings to determine whether certain counts

should be dismissed with or without prejudice where the trial

court failed to provide "written findings balancing the

interests of the State in prosecuting crime . . . or addressing

the orderly functioning of the court system").

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To summarize, dismissing an indictment ends the case,

and innately requires the circuit court to determine whether the

dismissal should be with or without prejudice. A dismissal

without prejudice allows the State to refile charges, while a

dismissal with prejudice does not. See generally State v.

Kalani, 87 Hawai‘i 260, 262, 953 P.2d 1358, 1360 (1998). And a

trial court should provide written findings showing it balanced

the State's interest with fairness to the defendant and orderly

functioning of the court. See Hinesley, 2021 WL 3113037, at *6,

*7. Without such findings, a case must be remanded.

Borge argues the determination of whether the

dismissal is with or without prejudice exceeds the scope of

remand. In the earlier appeal, the supreme court vacated the

circuit court's order denying Borge's motion to dismiss the

indictment and remanded "to the circuit court for dismissal of

the indictment and further proceedings consistent with this

opinion." Borge, 152 Hawai‘i at 469, 526 P.3d at 446.

"When a reviewing court remands a matter with specific

instructions, the trial court is powerless to undertake any

proceedings beyond those specified therein." Standard Mgmt.,

Inc. v. Kekona, 99 Hawai‘i 125, 137, 53 P.3d 264, 276 (App. 2001)

(citation omitted). But "[t]he 'true intent and meaning' of a

reviewing court's mandate is not to be found in a solitary word

or decontextualized phrase, but rather in the opinion, as a
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whole, read in conjunction with the judgment and interpreted in

light of the case's procedural history and context." In re

Hawai‘i Elec. Light Co., 149 Hawaiʻi 239, 241, 487 P.3d 708, 710

(2021).

After reviewing the opinion, judgment, and history and

context of this case, we construe the supreme court's directive

to conduct "further proceedings" as requiring the circuit court

to determine whether the dismissal should be with or without

prejudice and to enter written findings. See Borge, 152 Hawai‘i

at 469, 526 P.3d at 446; see generally In re Hawai‘i Elec. Light

Co., 149 Hawaiʻi at 241, 487 P.3d at 710. Otherwise, as related

to the first appeal, there were no other "further proceedings"

to be had when ordering the dismissal of the indictment because

the case based on that indictment ends upon dismissal.

Based on the foregoing, we vacate the circuit court's

May 3, 2023 Dismissal Order and June 22, 2023 Vacating Order,

and remand this case for proceedings consistent with this

summary disposition order.

DATED: Honolulu, Hawaiʻi, August 27, 2025.

On the briefs: /s/ Clyde J. Wadsworth
Presiding Judge
Renee Ishikawa Delizo,
Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen
County of Maui, Associate Judge
for Plaintiff-Appellant.
/s/ Kimberly T. Guidry
Hayden Aluli, Associate Judge
for Defendant-Appellee.
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