State v. Johnston
| Decision Date | 26 November 1980 |
| Docket Number | No. 7676,7676 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Wayne Joseph JOHNSTON, also known as Wayne Colburn, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. An appeal to the supreme court from a circuit court in a criminal case is only permitted from a final judgment or sentence under HRS § 641-11.
2. An appeal to the supreme court from an interlocutory circuit court order denying a motion to dismiss an indictment is not a final judgment and must be dismissed for lack of jurisdiction. A jurisdictional defect in an appeal cannot be waived by the parties or disregarded by this court.
3. Ordinarily, a trial court is divested of jurisdiction when an appeal is perfected.
Edward A. Haman, Honolulu, for defendant-appellant.
Peter Carlisle, Deputy Pros. Atty., Honolulu , for plaintiff-appellee.
Before RICHARDSON, C. J., and OGATA, MENOR, LUM and NAKAMURA, JJ.
We have raised, sua sponte, the question of whether we have jurisdiction to hear this appeal.
Defendant-appellant, Wayne Joseph Johnston, also known as Wayne Colburn, appeals from the First Circuit Court's order entered on December 3, 1979, denying his motion to dismiss the indictment. Appellant was indicted on June 5, 1979, by the Oahu Grand Jury for the offense of Robbery in the First Degree in violation of HRS § 708-840(1)(b)(ii). On August 22, 1979, the Grand Jury amended the indictment to add Counts II and III for Robbery in the First Degree in violation of HRS § 708-840(1)(b)(ii), and Count IV for Robbery in the Second Degree in violation of HRS § 708-841(1)(b).
On November 1, 1979, appellant filed a Motion to Dismiss Indictment on the ground that no independent grand jury counsel was present at the proceedings to advise the grand jurors in violation of Art. I, § 11 of the Hawaii State Constitution. Article I, § 11 had been proposed by the Hawaii Constitutional Convention of 1978 and ratified by the voters on November 7, 1978. The State filed a memorandum in opposition arguing that Article I, § 11 was not self-executing and that the present grand jury system prevailed until supplemental legislation was enacted. 1
On December 3, 1979, the First Circuit Court entered an order denying the appellant's Motion to Dismiss the Indictment. The appellant filed this appeal from that order on December 27, 1979.
Appellant was found guilty on all four counts after three jury trials. On April 25, 1980, the First Circuit Court entered its judgment against appellant and sentenced him to twenty years for each of the offenses in Counts I through III, and ten years in Count IV. Appellant was also ordered to make restitution in the amount of $82.25 in Count I, $105.00 in Counts II and III, and $203.00 in Count IV.
Ordinarily the circuit court would be divested of jurisdiction of a case after an appeal has been perfected. MDG Supply, Inc. v. Diversified Investment, Inc., 51 Haw. 375, 381, 463 P.2d 525, 529 (1969); cert. denied, 400 U.S. 868, 91 S.Ct. 99, 27 L.Ed.2d 108 (1970); Territory v. Damon, 44 Haw. 557, 563, 356 P.2d 386, 390 (1960). There is no indication in the record of this case that any objection was made by appellant that the circuit court had lost jurisdiction because of the filing of this appeal on December 27, 1979. We raised the question of appellant's right to appeal on oral argument. A jurisdictional defect in an appeal cannot be waived by the parties or disregarded by us. We must dismiss an appeal on our own motion if we lack jurisdiction. State v. Bikle, 60 Haw. 576, 592 P.2d 832 (1979); Fasi v. Hawaii Public Employment Relations Bd., 60 Haw. 436, 591 P.2d 113 (1979); State v. Valiani, 57 Haw. 133, 552 P.2d 75 (1976); BDM, Inc. v. Sageco, Inc., 57 Haw. 73, 549 P.2d 1147 (1976); Wylly v. First Hawaiian Bank, 57 Haw. 61, 549 P.2d 477 (1976); Jezierny v. Biggins, 56 Haw. 662, 548 P.2d 251 (1976); and State v. Ferreira, 54 Haw. 485, 510 P.2d 88 (1973).
The appellant contends that jurisdiction is founded on HRS §§ 641-11 and 602-5. However, HRS § 641-11 states:
Any party deeming himself aggrieved by the judgment of a circuit court in a criminal matter, may appeal to the supreme court, subject to chapter 602 in the manner and within the time provided by the Hawaii Rules of Criminal Procedure. The sentence of the court in a criminal case shall be the judgment .... (Emphasis added.)
Thus, the sentence of a circuit court in a criminal case may be appealed...
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Puchert v. Agsalud
...and the circuit court dismissed Puchert's complaint, the question of a court's jurisdiction cannot be disregarded. State v. Johnston, 63 Haw. 9, 11, 619 P.2d 1076, 1077 (1980). The doctrine of labor law pre-emption concerns the extent to which congress has placed implicit limits on the perm......
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82 Hawai'i 446, State v. Ontiveros
...defective, filing the notice does not transfer jurisdiction from the trial court to the appellate court. See, e.g., State v. Johnston, 63 Haw. 9, 619 P.2d 1076 (1980) (holding that, where interlocutory appeal not authorized by statute and trial commenced after notice of appeal filed, appell......
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State v. Nicol
...which suggests that considerations of finality are the primary focus in resolving questions of appealability under the statute. In State v. Johnston, for example, this court ruled that a circuit court order denying a motion to dismiss was not appealable under HRS § 641-11 in part because th......
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State v. Ragragola-Lenchanko
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