State v. Irebaria, 5726

• Decision Date: 02 June 1975
• Docket Number: No. 5726,5726
• Citation: 56 Haw. 332,535 P.2d 1406
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Edward Y. IREBARIA, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1406

535 P.2d 1406

56 Haw. 332

STATE of Hawaii, Plaintiff-Appellee, v. Edward Y. IREBARIA, Defendant-Appellant.

No. 5726.

Supreme Court of Hawai'i.

June 2, 1975.

David W. Hall, Honolulu (Hart, Leavitt & Hall, Honolulu, of counsel), for defendant-appellant.

George K. K. Kaeo, Jr., Deputy Pros. Atty. (Charlotte E. Libman, Deputy Pros. Atty., on the brief), for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, and MENOR, JJ., and Circuit Judge SHINTAKU, Assigned by Reason of Vacancy.

PER CURIAM.

In State v. Kamae, 56 Haw. 32, 36, 526 P.2d 1200, 1203 (1974), we quoted, inter alia, the following with approval from Coppedge v. United States, 369 U.S. 438, 448, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962):

'It is the burden of the Government, in opposing an attempted criminal appeal in forma pauperis, to show that the appeal is lacking in merit, indeed, that it is so lacking in merit that the court would dismiss the case on motion of the Government, had the case been docketed and a record been filed by an appellant able to afford the expense of complying with those requirements.'

We hold that the issues sought to be reviewed by defendant-appellant (hereinafter appellant) under his proposed appeal from the order denying reduction of sentence cannot be considered so lacking in merit that we hould dismiss the appeal on the basis of frivolity if this appeal had been taken by a nonindigent appellant. State v. Kamae, supra; State v. Hayashida, 55 Haw. 453, 522 P.2d 184 (1974); State v. Pence, 53 Haw. 157, 488 P.2d 1177 (1971); In re Carvelo, 44 Haw. 31, 352 P.2d 616 (1959).

Accordingly, we reverse the order of the trial court dated August 1, 1974, filed in the records of the First Circuit Court in Criminal No. 42147, denying the application for leave to appeal in forma pauperis. That order is vacated and the appellant is granted leave to appeal in forma pauperis from the order denying reduction of sentence entered in such records on June 28, 1974.

Reversed.