State v. Abel

• Court: Hawaii Intermediate Court of Appeals
• Decided: February 20, 2024
• Docket: CAAP-23-0000582
• Status: Published

Opinion

NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 20-FEB-2024 07:51 AM Dkt. 28 ODSLJ NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI I

STATE OF HAWAI I, Plaintiff-Appellee, v. NICHOLAS L. ABEL, Defendant-Appellant

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CASE NOS. 5CPC-XX-XXXXXXX; 5CPC-XX-XXXXXXX; and 5FFC-XX-XXXXXXX)

ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION (By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.) Upon review of the record, it appears that Defendant-

Appellant Nicholas Abel (Abel) filed a self-represented appeal 1

from the Circuit Court of the Fifth Circuit's: (1) January 20,

2021 Judgment of Conviction and Probation Sentence entered in

5CPC-XX-XXXXXXX, (2) January 20, 2021 Judgment of Conviction and

Probation Sentence entered in 5CPC-XX-XXXXXXX, and (3) February

22, 2022 Judgment of Conviction and Sentence entered in 5FFC-21-

0000052 (collectively, Judgments).2

We conclude that the court lacks jurisdiction over the

appeal because Abel filed his September 25, 2023 notice of

1 Though Abel filed the appeal self-represented, Abel's court-appointed counsel, Matthew Mannisto, remains his counsel of record. 2 Abel's February 7, 2024 Jurisdictional Statement indicates that he appeals from the underlying Judgments, and not from the Circuit Court's orders of resentencing entered September 13, 2023, in 5CPC-XX-XXXXXXX and 5CPC-19- 0000245. NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER

appeal3 more than 30 days after entry of each of the Judgments

appealed from, which is outside of the deadline set forth in HRAP

Rule 4(b)(1), and compliance with the requirement of timely

filing a notice of appeal is jurisdictional. Grattafiori v.

State, 79 Hawai i 10, 13, 897 P.2d 937, 940 (1995); see also HRAP

Rule 26(e) ("The reviewing court for good cause shown may relieve

a party from a default occasioned by any failure to comply with

these rules, except the failure to give timely notice of

appeal.").

Therefore, IT IS HEREBY ORDERED that the appeal is

dismissed for lack of appellate jurisdiction.

IT IS FURTHER ORDERED that all pending motions are

dismissed.

DATED: Honolulu, Hawai i, February 20, 2024.

/s/ Katherine G. Leonard Acting Chief Judge

/s/ Karen T. Nakasone Associate Judge

/s/ Sonja M.P. McCullen Associate Judge

3 "For the purposes of calculating other deadlines in these Rules, the date of filing under this Rule shall be the date the document is received by the clerk." Hawai i Rules of Appellate Procedure (HRAP) Rule 4(b)(1).