State v. Higa

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-SEP-2022
08:02 AM
Dkt. 20 OGMD
NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

STATE OF HAWAI#I, Plaintiff-Appellee, v.
EMLYN H. HIGA, Defendant-Appellant

APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT
HONOLULU DIVISION
(CASE NO. 1DCW-XX-XXXXXXX)

ORDER GRANTING MOTION TO DISMISS APPEAL
(By: Ginoza, Chief Judge, Wadsworth and Chan, JJ.)
Upon consideration of Plaintiff-Appellee State of
Hawai#i's (State) August 26, 2022 Motion to Dismiss for Lack of
Appellate Jurisdiction, the papers in support and in opposition,
and the record, it appears that the State seeks dismissal of this
appeal on the basis that the District Court of the First Circuit,
Honolulu Division's May 18, 2022 Notice of Entry of Judgment
and/or Order (5/18/22 Order), from which self-represented
Defendant-Appellant Emlyn H. Higa (Higa) appeals, is not a final
appealable order or judgment, and that the "collateral order"
exception, which Higa cites in his notice of appeal, does not
apply. For the following reasons, we agree.
The 5/18/22 Order is an interlocutory order that denied
Higa's motion to dismiss the complaint in this criminal action
based on statute of limitations.
Hawai#i Revised Statutes (HRS) § 641-12 (2016) permits
appeals "from all final decisions and final judgments of district
courts in all criminal matters." State v. Ontiveros, 82 Hawai#i
446, 449, 923 P.2d 388, 391 (1996) (cleaned up). There is "no
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

statutory warrant for interlocutory appeals in criminal cases
from district courts." State v. Valiani, 57 Haw. 133, 135, 552
P.2d 75, 76 (1976). It is undisputed that the 5/18/22 Order is
not a final appealable order under HRS § 641-12.
Moreover, though the Hawai#i Supreme Court in State v.
Baranco, 77 Hawai#i 351, 353-55, 884 P.2d 729, 731-33 (1994),
permitted an appeal in a circuit court criminal matter from a
collateral, interlocutory order denying a motion to dismiss
raised on double jeopardy grounds, since then, this court has
declined to apply the Baranco exception outside the double
jeopardy context. See, e.g., State v. Zoller, No.
CAAP-XX-XXXXXXX, 2011 WL 3808781, at *2 (App. Aug. 30, 2011)
(order dismissing appeal); State v. Bernal, No. CAAP-XX-XXXXXXX,
2011 WL 3559682, at *2 (App. Aug. 10, 2011) (same); State v.
Niihau, No. 30552, 2010 WL 4113653, at *1 (App. Oct. 14, 2010)
(same). Moreover, federal courts have held they lack appellate
jurisdiction over interlocutory appeals from orders denying a
motion to dismiss criminal charges based on statute of
limitations. See U.S. v. Mandycz, 351 F.3d 222, 225-26 (6th Cir.
2003), cert. denied, 543 U.S. 816 (2004); U.S. v. Davis, 873 F.2d
900, 901, 908-09 (6th Cir. 1989), cert. denied, 493 U.S. 923
(1989); U.S. v. Weiss, 7 F.3d 1088, 1089-91 (2d Cir. 1993); U.S.
v. Rossman, 940 F.2d 535, 536 (9th Cir. 1991); U.S. v. Levine,
658 F.2d 113 (3d Cir. 1981). It is undisputed that Higa did not
seek to dismiss the complaint in the underlying matter on double
jeopardy grounds, but rather on statute of limitations grounds;
thus, the collateral-order doctrine does not apply here.
Accordingly, we lack appellate jurisdiction in this interlocutory
appeal from the 5/18/22 Order.
Therefore, IT IS HEREBY ORDERED that the motion is
granted, and the appeal is dismissed for lack of jurisdiction.
DATED: Honolulu, Hawai#i, September 21, 2022.

/s/ Lisa M. Ginoza
Chief Judge

/s/ Clyde J. Wadsworth
Associate Judge

/s/ Derrick H.M. Chan
Associate Judge

2