No. SCWC-18-0000350, Thursday, October 31, 2019, 8:45 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. CHARLY HERNANE, also known as CHARLIE HERNANE, Petitioner/Defendant-Appellant.

Attorney for Petitioner/Defendant-Appellant:

Jon K. Ikenaga, Deputy Public Defender

Attorneys for Respondent/Plaintiff-Appellee:

Stephen K. Tsushima, Deputy Prosecuting Attorney

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Certificate of Recusal by Associate Justice Richard W. Pollack, filed 7/1/19.

NOTE: Order assigning Circuit Court Judge Bert I. Ayabe in place of Pollack, J., recused, filed 7/5/19.

NOTE: Order accepting Application for Writ of Certiorari, filed 8/9/19.

COURT: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ., and Circuit Court Judge Ayabe, in place of Pollack, J., recused.

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Brief Description:

In 2011, Petitioner/Defendant-Appellant Charly Hernane, also known as Charlie Hernane, (“Hernane”) was charged with one count of Murder in the Second Degree in violation of HRS § 707-701.5. After a jury-trial, Hernane was found guilty as charged and sentenced. After the Intermediate Court of Appeals (“ICA”) vacated Hernane’s conviction and sentence and remanded his case for retrial, on March 23, 2016, this court rejected the State of Hawai i’s (“State’s”) application for certiorari. At that time, Hernane was in the State’s custody in a prison located in Arizona.  Hernane was returned to Hawai i on July 19, 2016.　　

On the date his retrial commenced, February 5, 2018,　Hernane filed a　motion to dismiss based on the State’s alleged failure to bring him to trial within 180 days of the remand minus allowable excluded periods of time, based on　Hawai i Rules of Penal Procedure (“HRPP”) Rule 48. Rule 48 sets forth categories of time periods that may be excluded from the 180 day requirement. The Circuit Court of the First Circuit (“circuit court”) denied Hernane’s motion to dismiss on the grounds that at least some portion of the time Hernane was being held in Arizona was excludable under Rule 48(c)(5) because he was　”unavailable,” and that, therefore, there was no HRPP Rule 48 violation. The Intermediate Court of Appeals affirmed, and Hernane challenges this ruling on certiorari.