NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-AUG-2025 09:37 AM Dkt. 42 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellant, v. TROY D. BORGE, JR., Defendant-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPC-XX-XXXXXXX(3))
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)
Plaintiff-Appellant State of Hawai‘i appeals from the
Circuit Court of the Second Circuit's 1 June 22, 2023 order
granting in part Defendant-Appellee Troy Borge's motion to
vacate the circuit court's "Order Re Dismissal of Indictment"
(June 22 Vacating Order). On appeal, the State contends the
circuit court erred in not determining whether the dismissal was
with or without prejudice, while Borge contends we lack
1 The Honorable Kelsey T. Kawano presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
jurisdiction because the State's appeal was untimely. We have
jurisdiction over this appeal, and vacate and remand.
This case is on appeal for a second time. In the
first appeal from this case, the Hawai‘i Supreme Court held the
circuit court abused its discretion in denying Borge's motion to
dismiss the indictment. State v. Borge, 152 Hawai‘i 458, 466,
526 P.3d 435, 443 (2023). Borge's motion to dismiss the
indictment was based on prosecutorial misconduct before the
grand jury. See id.
The supreme court held that the prosecutor committed
misconduct and vacated, among other orders, 2 the circuit court's
order denying Borge's motion to dismiss the indictment. Id. at
466, 466 n.12, 469, 526 P.3d at 443, 443 n.12, 446. The supreme
court then remanded the case "to the circuit court for dismissal
of the indictment and further proceedings consistent with this
opinion." Id. at 469, 526 P.3d at 446. Echoing its opinion,
the supreme court's judgment noted in part "[t]his case is
remanded to the circuit court for dismissal of the indictment
and further proceedings consistent with this opinion."
On remand, the circuit court dismissed the indictment
on May 3, 2023 (May 3 Dismissal Order). The State then moved to
clarify whether the dismissal was with or without prejudice. In
2 The supreme court also vacated the circuit court's June 7, 2021 judgment of conviction and sentence and the June 17, 2021 free-standing order of restitution. Borge, 152 Hawai‘i at 469, 526 P.3d at 446. 2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
its order disposing of the motion to clarify (May 15 Order Re
Dismissal of Indictment), the circuit court noted there was "no
explicit direction from the Supreme Court directing that a
dismissal of the indictment be with prejudice" and ordered
dismissal be without prejudice.
Borge moved to vacate the May 15 Order Re Dismissal of
Indictment, arguing it exceeded the scope of remand. In its
June 22 Vacating Order, the circuit court granted Borge's motion
in part, vacating and setting aside the May 15 Order Re
Dismissal of Indictment and declaring its May 3 Dismissal Order
"shall remain in full force and effect." The State appealed
from the June 22 Vacating Order.
On appeal, the State contends the circuit court erred
in not determining whether the dismissal should be with or
without prejudice, while Borge contends this court lacks
jurisdiction because the State's appeal was untimely.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below, and vacate and remand.
(1) We first address Borge's contention that this
court lacks jurisdiction because the State's appeal was untimely
filed. Borge argues the State's appeal was untimely because the
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
State filed its notice of appeal more than thirty days after the
May 3 Dismissal Order.
A "post-judgment order is appealable in its own right
only if it meets the test of finality applicable to all judicial
decisions." State v. Spears, 129 Hawai‘i 29, 292 P.3d 233,
Nos. 30690, 30529, and 30530, 2013 WL 257128, at *6 (App.
Jan. 23, 2013) (SDO) (citation omitted). "Final order means an
order ending the proceedings, leaving nothing further to be
accomplished." Id. (cleaned up).
The May 3 Dismissal Order fully resolved all issues in
the underlying case. Thus, Borge's motion to vacate the May 15
Order Re Dismissal of Indictment was a post-judgment motion.
And the June 22 Vacating Order disposing of that post-judgment
motion was a post-judgment order, which was appealable. See
generally Spears, 2013 WL 257128, at *6. The State filed its
notice of appeal within thirty days of the circuit court
entering the June 22 Vacating Order.
Thus, the State's notice of appeal was timely and this
court has jurisdiction over this appeal.
(2) The State contends the circuit court erred in
failing to determine whether the dismissal was with or without
prejudice.
Generally, "a trial court's inherent power to dismiss
a criminal case with prejudice is relevant and applicable to the
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
exercise of inherent power[.]" State v. Mageo, 78 Hawai‘i 33,
38, 889 P.2d 1092, 1097 (App. 1995). "Obviously, the power
would embrace the discretion to dismiss without prejudice, if
appropriate under the circumstances." Id. at 38 n.10, 889 P.2d
at 1097 n.10.
When dismissing with prejudice, the trial court
"should issue written factual findings setting forth [its]
reasons for dismissal with prejudice so that a reviewing court
may accurately assess whether the trial court duly exercised its
discretion." State v. Hinesley, 149 Hawai‘i 380, 490 P.3d 1141,
No. CAAP-XX-XXXXXXX, 2021 WL 3113037, at *6 (App. July 22, 2021)
(mem. op.) (formatting altered) (quoting Mageo, 79 Hawai‘i at 38,
889 P.2d at 1097). And where there are no written findings
"balancing of the interest of the state against fundamental
fairness to a defendant with the added ingredient of the orderly
functioning of the court system[,]" the case will be remanded
for determination on whether dismissal should be with or without
prejudice. Hinesley, 2021 WL 3113037, at *6, *8 (remanding case
for further proceedings to determine whether certain counts
should be dismissed with or without prejudice where the trial
court failed to provide "written findings balancing the
interests of the State in prosecuting crime . . . or addressing
the orderly functioning of the court system").
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
To summarize, dismissing an indictment ends the case,
and innately requires the circuit court to determine whether the
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NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 27-AUG-2025 09:37 AM Dkt. 42 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
STATE OF HAWAIʻI, Plaintiff-Appellant, v. TROY D. BORGE, JR., Defendant-Appellee.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND CIRCUIT (CASE NO. 2CPC-XX-XXXXXXX(3))
SUMMARY DISPOSITION ORDER (By: Wadsworth, Presiding Judge, McCullen and Guidry, JJ.)
Plaintiff-Appellant State of Hawai‘i appeals from the
Circuit Court of the Second Circuit's 1 June 22, 2023 order
granting in part Defendant-Appellee Troy Borge's motion to
vacate the circuit court's "Order Re Dismissal of Indictment"
(June 22 Vacating Order). On appeal, the State contends the
circuit court erred in not determining whether the dismissal was
with or without prejudice, while Borge contends we lack
1 The Honorable Kelsey T. Kawano presided. NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
jurisdiction because the State's appeal was untimely. We have
jurisdiction over this appeal, and vacate and remand.
This case is on appeal for a second time. In the
first appeal from this case, the Hawai‘i Supreme Court held the
circuit court abused its discretion in denying Borge's motion to
dismiss the indictment. State v. Borge, 152 Hawai‘i 458, 466,
526 P.3d 435, 443 (2023). Borge's motion to dismiss the
indictment was based on prosecutorial misconduct before the
grand jury. See id.
The supreme court held that the prosecutor committed
misconduct and vacated, among other orders, 2 the circuit court's
order denying Borge's motion to dismiss the indictment. Id. at
466, 466 n.12, 469, 526 P.3d at 443, 443 n.12, 446. The supreme
court then remanded the case "to the circuit court for dismissal
of the indictment and further proceedings consistent with this
opinion." Id. at 469, 526 P.3d at 446. Echoing its opinion,
the supreme court's judgment noted in part "[t]his case is
remanded to the circuit court for dismissal of the indictment
and further proceedings consistent with this opinion."
On remand, the circuit court dismissed the indictment
on May 3, 2023 (May 3 Dismissal Order). The State then moved to
clarify whether the dismissal was with or without prejudice. In
2 The supreme court also vacated the circuit court's June 7, 2021 judgment of conviction and sentence and the June 17, 2021 free-standing order of restitution. Borge, 152 Hawai‘i at 469, 526 P.3d at 446. 2 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
its order disposing of the motion to clarify (May 15 Order Re
Dismissal of Indictment), the circuit court noted there was "no
explicit direction from the Supreme Court directing that a
dismissal of the indictment be with prejudice" and ordered
dismissal be without prejudice.
Borge moved to vacate the May 15 Order Re Dismissal of
Indictment, arguing it exceeded the scope of remand. In its
June 22 Vacating Order, the circuit court granted Borge's motion
in part, vacating and setting aside the May 15 Order Re
Dismissal of Indictment and declaring its May 3 Dismissal Order
"shall remain in full force and effect." The State appealed
from the June 22 Vacating Order.
On appeal, the State contends the circuit court erred
in not determining whether the dismissal should be with or
without prejudice, while Borge contends this court lacks
jurisdiction because the State's appeal was untimely.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below, and vacate and remand.
(1) We first address Borge's contention that this
court lacks jurisdiction because the State's appeal was untimely
filed. Borge argues the State's appeal was untimely because the
3 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
State filed its notice of appeal more than thirty days after the
May 3 Dismissal Order.
A "post-judgment order is appealable in its own right
only if it meets the test of finality applicable to all judicial
decisions." State v. Spears, 129 Hawai‘i 29, 292 P.3d 233,
Nos. 30690, 30529, and 30530, 2013 WL 257128, at *6 (App.
Jan. 23, 2013) (SDO) (citation omitted). "Final order means an
order ending the proceedings, leaving nothing further to be
accomplished." Id. (cleaned up).
The May 3 Dismissal Order fully resolved all issues in
the underlying case. Thus, Borge's motion to vacate the May 15
Order Re Dismissal of Indictment was a post-judgment motion.
And the June 22 Vacating Order disposing of that post-judgment
motion was a post-judgment order, which was appealable. See
generally Spears, 2013 WL 257128, at *6. The State filed its
notice of appeal within thirty days of the circuit court
entering the June 22 Vacating Order.
Thus, the State's notice of appeal was timely and this
court has jurisdiction over this appeal.
(2) The State contends the circuit court erred in
failing to determine whether the dismissal was with or without
prejudice.
Generally, "a trial court's inherent power to dismiss
a criminal case with prejudice is relevant and applicable to the
4 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
exercise of inherent power[.]" State v. Mageo, 78 Hawai‘i 33,
38, 889 P.2d 1092, 1097 (App. 1995). "Obviously, the power
would embrace the discretion to dismiss without prejudice, if
appropriate under the circumstances." Id. at 38 n.10, 889 P.2d
at 1097 n.10.
When dismissing with prejudice, the trial court
"should issue written factual findings setting forth [its]
reasons for dismissal with prejudice so that a reviewing court
may accurately assess whether the trial court duly exercised its
discretion." State v. Hinesley, 149 Hawai‘i 380, 490 P.3d 1141,
No. CAAP-XX-XXXXXXX, 2021 WL 3113037, at *6 (App. July 22, 2021)
(mem. op.) (formatting altered) (quoting Mageo, 79 Hawai‘i at 38,
889 P.2d at 1097). And where there are no written findings
"balancing of the interest of the state against fundamental
fairness to a defendant with the added ingredient of the orderly
functioning of the court system[,]" the case will be remanded
for determination on whether dismissal should be with or without
prejudice. Hinesley, 2021 WL 3113037, at *6, *8 (remanding case
for further proceedings to determine whether certain counts
should be dismissed with or without prejudice where the trial
court failed to provide "written findings balancing the
interests of the State in prosecuting crime . . . or addressing
the orderly functioning of the court system").
5 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
To summarize, dismissing an indictment ends the case,
and innately requires the circuit court to determine whether the
dismissal should be with or without prejudice. A dismissal
without prejudice allows the State to refile charges, while a
dismissal with prejudice does not. See generally State v.
Kalani, 87 Hawai‘i 260, 262, 953 P.2d 1358, 1360 (1998). And a
trial court should provide written findings showing it balanced
the State's interest with fairness to the defendant and orderly
functioning of the court. See Hinesley, 2021 WL 3113037, at *6,
*7. Without such findings, a case must be remanded.
Borge argues the determination of whether the
dismissal is with or without prejudice exceeds the scope of
remand. In the earlier appeal, the supreme court vacated the
circuit court's order denying Borge's motion to dismiss the
indictment and remanded "to the circuit court for dismissal of
the indictment and further proceedings consistent with this
opinion." Borge, 152 Hawai‘i at 469, 526 P.3d at 446.
"When a reviewing court remands a matter with specific
instructions, the trial court is powerless to undertake any
proceedings beyond those specified therein." Standard Mgmt.,
Inc. v. Kekona, 99 Hawai‘i 125, 137, 53 P.3d 264, 276 (App. 2001)
(citation omitted). But "[t]he 'true intent and meaning' of a
reviewing court's mandate is not to be found in a solitary word
or decontextualized phrase, but rather in the opinion, as a 6 NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER
whole, read in conjunction with the judgment and interpreted in
light of the case's procedural history and context." In re
Hawai‘i Elec. Light Co., 149 Hawaiʻi 239, 241, 487 P.3d 708, 710
(2021).
After reviewing the opinion, judgment, and history and
context of this case, we construe the supreme court's directive
to conduct "further proceedings" as requiring the circuit court
to determine whether the dismissal should be with or without
prejudice and to enter written findings. See Borge, 152 Hawai‘i
at 469, 526 P.3d at 446; see generally In re Hawai‘i Elec. Light
Co., 149 Hawaiʻi at 241, 487 P.3d at 710. Otherwise, as related
to the first appeal, there were no other "further proceedings"
to be had when ordering the dismissal of the indictment because
the case based on that indictment ends upon dismissal.
Based on the foregoing, we vacate the circuit court's
May 3, 2023 Dismissal Order and June 22, 2023 Vacating Order,
and remand this case for proceedings consistent with this
summary disposition order.
DATED: Honolulu, Hawaiʻi, August 27, 2025.
On the briefs: /s/ Clyde J. Wadsworth Presiding Judge Renee Ishikawa Delizo, Deputy Prosecuting Attorney, /s/ Sonja M.P. McCullen County of Maui, Associate Judge for Plaintiff-Appellant. /s/ Kimberly T. Guidry Hayden Aluli, Associate Judge for Defendant-Appellee. 7