State v. Graybeard

• Decision Date: 28 July 2000
• Docket Number: No. 22506.,22506.
• Citation: State v. Graybeard, 93 Haw. 513, 6 P.3d 385 (Haw. App. 2000)
• Parties: STATE of Hawai`i, Plaintiff-Appellee, v. Philip GRAYBEARD, Defendant-Appellant.
• Court: Hawaii Court of Appeals

6 P.3d 385

93 Haw. 513

STATE of Hawai`i, Plaintiff-Appellee, v. Philip GRAYBEARD, Defendant-Appellant.

No. 22506.

Intermediate Court of Appeals of Hawai`i.

July 28, 2000.

Shirley M. Kawamura, Deputy Public Defender, on the briefs, for defendant-appellant.

Tharrington T. Trusdell, Deputy Prosecuting Attorney, City and County of Honolulu, on the briefs, for plaintiff-appellee.

BURNS, C.J., WATANABE and LIM, JJ.

Opinion of the Court by LIM, J.

Defendant-Appellant Philip Graybeard, aka Graybeard,¹ appeals the May 14, 1999 judgment of the District Court of the Third Circuit convicting him of harassment, in violation of Hawai`i Revised Statutes (HRS) § 711-1106(1)(b),² and sentencing him to perform two hundred hours of community service and to pay twenty-five dollars to the Criminal Injury Compensation Fund. Because the court did not engage Graybeard in the so-called Tachibana³ colloquy or obtain on the record his waiver of his constitutional right to testify at trial, we vacate the judgment and remand for a new trial.

Jurisdictional Issues.

Graybeard's Notice of Appeal, filed in the Puna division of the District Court of the Third Circuit on May 14, 1999, at 11:00 a.m., appealed from "the Judgment and Sentence, entered on April 19, 1999 by Judge ... and recorded on the Court Calendar on that same date." In its caption, the notice of appeal referenced "Report No. F-49767/PN[,]" the name of the judge and an April 19, 1999 trial date. The record on appeal, which contains the original court file, does not contain a "Court Calendar" nor any record of a "Judgment and Sentence" recorded thereon.

What the original court file does contain, however, is a Judgment filed in the Puna Division of the District Court of the Third Circuit on May 14, 1999, at 12:26 p.m.

The filed judgment is a one-page, preprinted court form. In its caption, the name of the division and the names of the parties are typed into the appropriate spaces provided. The number "F-49767" is typed into the space provided for "CRIMINAL NO." The number "711-1106" is typed into the intermediary space provided by the phrase, "Violation of Section __________ Hawaii Revised Statutes, as amended[.]" The word "HARASSMENT" is typed into the space situate above the word "Offense[.]"

Then, under the title "JUDGMENT" is the following body of the document, with the italics supplied indicating the portions typed into spaces provided by the preprinted form: "I HEREBY CERTIFY that on the 19th day of April, 1999, in the above entitled cause, the District Judge of the above entitled court sentenced the above-named defendant as follows: 200 hours community service work; Criminal Injury Compensation Fund $25.00[.]" The form is dated May 14, 1999, signed by the clerk of the court and embossed with the court seal.

Neither party raises any jurisdictional issues in this appeal. An appellate court has, however, an independent obligation to ensure jurisdiction over each case and to dismiss the appeal sua sponte if a jurisdictional defect exists. Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986).

"The right of appeal is had only when granted by constitutional or statutory provision." Security Pacific Mortg. Corp. v. Miller, 71 Haw. 65, 68, 783 P.2d 855, 857 (1989) (citation omitted).

HRS § 641-12 (1993) provides that "[a]ppeals upon the record shall be allowed from all final decisions and final judgments of district courts in all criminal matters. Such appeals may be made to the supreme court, subject to chapter 602 whenever the party appealing shall file notice of the party's appeal within thirty days, or such other time as may be provided by the rules of the court."

Hawai`i Rules of Appellate Procedure (HRAP) Rule 4(b) (1999) provides, in part, that "[i]n a criminal case, whether the appeal is one of right or is an interlocutory appeal, the notice of appeal by a defendant shall be filed in the circuit or district court within 30 days after the entry of the judgment or order appealed from." An appellant's failure to file a timely notice of appeal is a jurisdictional defect which cannot be waived by the parties or disregarded by the court in the exercise of its discretion. Bacon, 68 Haw. at 650, 727 P.2d at 1129.

HRAP Rule 3(c) (1999) provides, in pertinent part, that "[t]he notice of appeal ... shall designate the judgment, order or part thereof appealed from."

With respect to jurisdiction, we first observe that Graybeard's notice of appeal designated an apparently nonexistent judgment.

The designation requirement is not, however, jurisdictional. "Professor Moore states that 'a mistake in designating the judgment... should not result in loss of the appeal as long as the intention to appeal from a specific judgment can be fairly inferred from the notice and the appellee is not misled by the mistake.'" City & County v. Midkiff, 57 Haw. 273, 275-76, 554 P.2d 233, 235 (1976) (citation omitted).

It can be fairly inferred from Graybeard's notice of appeal that he is appealing from the only extant judgment in criminal number F-49767, which is the judgment filed May 14, 1999. The State was not in any wise misled by the incorrect designation. On appeal, it argues in all respects as if Graybeard had designated the filed judgment.

We next observe that Graybeard's notice of appeal was filed on the same day but before the judgment filed by the court. This irregularity is also not fatal. HRAP Rule 4(b) (1999) provides, in relevant part, that with respect to an appeal by a defendant in a criminal case, "[a] notice of appeal filed after the announcement of a decision, sentence or order but before entry of the judgment or order shall be treated as filed after such entry and on the day thereof.... A judgment or order is entered within the meaning of this subdivision when it is filed with the clerk of the court." See, e.g., Grattafiori v. State, 79 Hawai`i 10, 13, 897 P.2d 937, 940 (1995)("pursuant to HRAP Rule 4(b), an appeal... must either be filed within thirty days after the entry of the order ... or, in the alternative, after the announcement but before the entry of the order").

As will be detailed below, the court announced Graybeard's conviction and sentence at the conclusion of Graybeard's bench trial on April 19, 1999. The judgment was filed May 14, 1999, at 12:26 p.m. Graybeard's notice of appeal was filed the same day, but earlier at 11:00 a.m. The foregoing authorities deem the notice of appeal to be filed the same day as and after the judgment. By the same token, the notice of appeal was timely. HRS § 641-12; HRAP Rule 4(b).

Graybeard's counsel may have drafted and filed the notice of appeal as he did because of certain assumptions gleaned from Hawai`i Rules of Penal Procedure (HRPP) Rule 32(c)(2) (1999), which specifies that "[t]he notation of the judgment by the clerk on the calendar constitutes the entry of the judgment." See also State v. Nishi, 9 Haw. App. 516, 526, 852 P.2d 476, 481 (1993)("[w]hile a circuit court judgment generally is a one-page document, a district court judgment consists of the clerk's notation on the court's daily calendar containing numerous cases") (citing HRPP Rule 32(c)(2)).

Which begs, however, the further question whether appealing from the filed judgment, which is not in the form specified by HRPP Rule 32(c)(2), constituted a jurisdictional defect. Though we view as jurisdictionally insignificant the incorrect designation of the judgment in the notice of appeal, the divagation of the form of the judgment from that specified in the rule raises the threshold question whether an appealable final judgment was at all entered in this case. See, e.g., State v. Bulgo, 45 Haw. 501, 502-4, 370 P.2d 480, 481-82 (1962) (no appellate jurisdiction over State's appeal from an oral order of the circuit court dismissing criminal indictments because the oral order was not a document in writing and thus, under court rules then existing, was not an appealable judgment or order; note that in the case of an appeal by the State in a criminal case, the court rules then did not provide that an appeal filed between court announcement and filing of judgment is deemed filed on the same day and after the filing of the judgment⁴).

We do not believe we have an analogue of the Bulgo situation in this case. HRPP Rule 32(c)(2) (1999) provides:

A judgment of conviction in the district court shall set forth the disposition of proceedings and the same shall be entered on the record of the court. The notation of the judgment by the clerk on the calendar constitutes the entry of the judgment.

The subsection does not expressly limit the method of entry of judgment in the district court to the court clerk's notation on the court calendar. It should not imply such a limitation either, because excluding the method of entry of judgment utilized in this case also excludes the potential for more detail and clarity in the exposition of the judgment.

The simple expedient permitted by HRPP Rule 32(c)(2) subserves, we surmise, the goal of efficiency in a court that carries a multitude of cases. We can conceive of no good reason, however, for investing it as the sole and exclusive method of entering judgment in the district court. Efficiency need not and should not be purchased at the expense of other virtues, such as expository range.

HRAP Rule 4(b) (1999), moreover, appears to sanction the kind of judgment filed in this case. That rule provides that the notice of appeal by a defendant in a criminal case "shall be filed in the ... district ... court within 30 days after the entry of the judgment or order appealed from." The rule further provides that "[a] judgment or order is entered within the meaning of this subsection when it is filed with the clerk of the court." The district court calendars, to the extent that they are filed at all, are not filed in any manner that is usually understood as "filing." The judgment in this case was.⁵

We believe, therefore,...