Skip to Main Nav Skip to Main Content Skip to Footer Content

Oral Argument Before the Supreme Court of Hawaii–SCWC-16-0000681

No. SCWC-16-0000681, Tuesday, July 18, 2017, 11:15 a.m.

STATE OF HAWAI I, Respondent/Plaintiff-Appellee, vs. DONALD NICOL, Petitioner/Defendant-Appellant.

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

Supreme Court Courtroom
Ali iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorneys for Petitioner:
      Brook Hart and Chad N. Enoki

Attorney for Respondent:
      Stephen K. Tsushima, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 04/27/17.


[ Listen to the entire audio recording in mp3 format ]

Brief Description:

On October 14, 2014, Petitioner was charged in the Circuit Court of the First Circuit (circuit court) with multiple counts of sexual assault in the first, second, and fourth degree. Petitioner pleaded not guilty to the charges, and trial was scheduled to commence on December 22, 2014.

Trial was continued multiple times. For a period of that time, Petitioner waived his rights to a speedy trial. On June 7, 2016, Petitioner moved to dismiss the case for violation of his right to a speedy trial because 629 days had passed since his arrest and the setting of bail. Petitioner argued that dismissal should be with prejudice, thereby precluding reprosecution of the charges.

On September 16, 2016, the circuit court entered a written order dismissing the case without prejudice. Petitioner appealed the circuit court’s September 16, 2016 order to the Intermediate Court of Appeals (ICA).

On January 11, 2017, the ICA issued an order dismissing Petitioner’s appeal for lack of appellate jurisdiction. The ICA stated that appeal of an order of dismissal without prejudice is not permitted under Hawaii Revised Statutes (HRS) § 641-11 (2010), which provides for appeals from the circuit courts in criminal matters.

On certiorari, Petitioner contends that the ICA erred in dismissing his appeal from the circuit court’s dismissal without prejudice on the ground that it lacked appellate jurisdiction. Petitioner argues that under the ICA’s interpretation of HRS § 641-11, a defendant in circuit court may not appeal an order dismissing proceedings without prejudice, even though a similarly-situated defendant in district court may appeal a dismissal without prejudice. According to Petitioner, HRS § 641-11 should be interpreted to avoid this differential treatment, which Petitioner argues would otherwise violate the equal protection and due process guarantees afforded by the state and federal constitutions and produce inconsistent results. The State asserts that HRS § 641-11 only permits appeal from a circuit court “judgment,” that the statute defines “judgment” to be “[t]he sentence of the court,” and, therefore, a dismissal without prejudice is not appealable from the circuit court because it does not contain a sentence.