STATE OF HAWAI v. DONALD NICOL (2017)

ORDER DISMISSING THE APPEAL FOR LACK OF APPELLATE JURISDICTION

Upon review of the record on appeal, it appears that this court lacks appellate jurisdiction because there is no “judgment” in the record on appeal as defined in the Hawaii Revised Statutes (HRS) § 641-11 (2010). Defendant-Appellant Donald Nicol (Appellant) appeals from an “Order Granting in Part and Denying in Part [Appellant's] Motion to Dismiss Indictment with Prejudice,” filed on September 16, 2016, in the Circuit Court of the First Circuit.

Appellant purports to appeal pursuant to HRS § 641-11, which provides in pertinent part, “[a]ny party aggrieved by the judgment of a circuit court in a criminal matter may appeal to the intermediate appellate court, subject to chapter 602, in the manner and within the time provided by the rules of court. The sentence of the court in a criminal case shall be the judgment.” HRS § 641-11 (emphasis added).

This case was dismissed without prejudice for violation of Rule 48 of the Hawai'i Rules of Penal Procedure and, therefore, no sentence has been imposed.

Therefore, Appellant may not appeal pursuant to HRS § 641-11.

IT IS HEREBY ORDERED that the appeal is dismissed for lack of appellate jurisdiction.