State v. Irebaria

535 P.2d 1406, 56 Haw. 332, 1975 Haw. LEXIS 102

• Court: Hawaii Supreme Court
• Decided: June 2, 1975
• Docket: NO. 5726
• Status: Published

Opinion

Per Curiam.

In State v. Kamae, 56 Haw. 32, 36, 526 P.2d 1200, 1203 (1974), we quoted, inter alia, the following with approval from Coppedge v. United States, 369 U.S. 438, 448 (1962):

“It is the burden of the Government, in opposing an attempted criminal appeal in forma pauperis, to show that the appeal is lacking in merit, indeed, that it is so lacking in merit that the court would dismiss the case on motion of the Government, had the case been docketed and a record been filed by an appellant able to afford the expense of complying with those requirements.”

We hold- that the issues sought to be reviewed by defendant-appellant (hereinafter appellant) under his proposed appeal from the order denying reduction of sentence cannot be considered so lacking in merit that we would dismiss the appeal on the basis of frivolity if this appeal had been taken by a non indigent appellant. State v. Kamae, supra, State v. Hayashida, 55 Haw. 453, 522 P.2d 184 (1974); State v. Pence, 53 Haw. 157, 488 P.2d 1177 (1971); In re Carvelo, 44 Haw. 31, 352 P.2d 616 (1959).

Accordingly, we reverse the order of the trial court dated August 1, 1974, filed in the records of the First Circuit Court in Criminal No. 42147, denying the application for leave to appeal in forma pauperis. That order is vacated and the appellant is granted leave to appeal informa pauperis from the order denying reduction of sentence entered in such records on June 28, 1974.

David W. Hall (Hart, Leavitt & Hall of counsel) for defendant-appellant. George K. K. Kaeo, Jr., Deputy Prosecuting Attorney (Charlotte E. Libman, Deputy Prosecuting Attorney, on the brief), for plaintiff-appellee.

Reversed.