State v. DeMello

LAWHJBRARY

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

care authorized by HRS § 641-12, which

No.j 30321

§§ §§

IN THE INTERMEDIATE coURT oF APPEALS ;,._, +;

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oF THE STATE oF HAWAI‘I vii

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STATE oF HAWAI‘I, Plainr;iff-Appellee, v -¢
LAWRENCE DEMELLO, JR., Defendant»Appella§; 3 §§

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APPEAL FRoM THE DISTRICT coURT oF THE sEcoND CE§CUIT 3

(CASE NO. 2PlO8-O2074)

ORDER GRAN'I'ING APRIL 6, 2'010 MOTION TO DISMISS APPEAl.
FOR LACK OF APPELLATE JURISDICTION WITI-IOUT PREJUDICE
(By: Nakamura, C.J., Foley and Fujise, JJ.)

Upon review of (1) Defendant-Appellant Lawrence

DeMello, Jr.'s (Appellant DeMello), April 6, 2010 motion to
dismiss this appeal for lack of appellate jurisdiction without
prejudice and (2) the record, it appears that we lack
jurisdiction over Appellant DeMello's appeal from the Honorable
Kelsey T. Kawano's January 5, 2010 judgment of conviction

pursuant to Hawafi Revised Statutes (HRS) § 641-12 (Supp. 2009),

and, thus, Appellant DeMello's April 6, 2010 motion has merit.
"Appeals from the district court, in criminal cases;
provides in pertinent

part that appeals upon the record shall be allowed from all final

decisions and final judgments cf district courts in all criminal

matters." State v. Ontiveros, 82 Hawafi 446, 449, 923 P.2d 388,

(internal quotation marks and brackets omitted).

391 (l996)

However, the January 5, 2010 judgment in this case is not final,
because, although the January 5, 2010 judgment indicates the
district court's intent to sentence Appellant DeMello to
restitution, and the district court has not yet entered an order

or judgment that determines the specific amount of restitution'

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NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
that Appellant DeMello must pay. Under similar circumstances in
an appeal from a district court judgment, the intermediate court

of appeals has held that:

[j]udgments of conviction are not final unless they
include the final adjudication and_the final sentence.
In the instant case, the sentence imposed was not the
final sentence because the district court expressly
left open the possibility that its sentence of Kilborn
might include an order requiring Kilborn to pay
restitution, The court did not finally decide whether
it would order Kilborn to pay restitution and, if so,
in what amount. Consequently, the December 5, 2003`
Judgment is not final and, because it is not final, it
is not appealable.

Accordingly, IT IS HEREBY ORDERED that the
appeal from the December 5, 2003 Judgment is dismissed
for lack of appellate jurisdiction.

State v. Kilborn, 109 Hawafi 435, 442, 127 P.3d 95, 102 (App.

2005). Similarly in the instant case, the January 5, 2010
judgment and a March 31, 2010 order indicate that the district
court has intended to sentence Appellant DeMello to pay
restitution in an amount that the district court would determine
at a later date. Consequently¢ the January 5, 2010 judgment is
not final, and, thus, the January 5, 2010 judgment is not
appealable under HRS § 641-12 (Supp. 2009).

t Absent an order or judgment that specifically
determines the amount of restitution that Appellant DeMello must

pay as a part of his sentence, the sentence in this case is not

yet complete, and we lack appellate jurisdiction under HRS § 641-12.

Therefore,

IT IS HEREBY ORDERED that Appellant DeMello's April 6,
2010 motion to dismiss this appeal for lack of appellate
jurisdiction without prejudice is granted, and appellate court
case number 30321 is dismissed. This order of dismissal does not

preclude Appellant DeMello from asserting a new appeal under a

NOT F»OR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
new appellate court case number when and if the district court
makes Appellant DeMello's judgment of conviction final by 0
entering an appealable written order or judgment that determines
the amount of restitution that Appellant DeMello is required to

pay as a part of his sentence.

DATED: Honolulu, HawaiU, May 4, 20lO.

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Chief Judge

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Associate.Judge

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Associate Judge