Electronically Filed Supreme Court SCWC-11-0000602 11-APR-2012 10:18 AM

NO. SCWC-11-0000602

IN THE SUPREME COURT OF THE STATE OF HAWAI'I

STATE OF HAWAI'I, Respondent/Plaintiff-Appellee,

vs.

MARIA T. TIMMONS, Petitioner/Defendant-Appellant.

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (ICA NO. CAAP-11-0000602; CASE NO. 1DTA-10-04522)

ORDER ACCEPTING APPLICATION FOR WRIT OF CERTIORARI, VACATING ICA ORDER DISMISSING APPEAL FOR LACK OF JURISDICTION, AND REMANDING APPEAL TO ICA (By: Recktenwald, C.J., Nakayama, Acoba, and McKenna, JJ. and Circuit Judge Crandall, in place of Duffy, J., recused)

Petitioner/defendant-appellant Maria T. Timmons filed a

timely application for writ of certiorari on March 5, 2012 to

review the intermediate court of appeals' (ICA) January 4, 2012

Order Dismissing Appeal for Lack of Appellate Jurisdiction.

Timmons appealed the district court's August 2, 2011 order

dismissing without prejudice Case No. 1DTA-10-04522. The ICA

concluded that the August 2, 2011 order was not a final decision

appealable pursuant to HRS § 641-12 (Supp. 2011) because the

order dismissing without prejudice is not "a decision on the

merits and does not include a sentence," citing State v. Valiani,

57 Haw. 133, 134, 532 P.2d 75, 76 (1976), United States v. Tsoie, 966 F.2d 1357, 1359 (10th Cir. 1992), and State v. Kilborn, 109 Hawai'i 435, 442, 127 P.3d 95 102 (App. 2005).

HRS § 641-12 authorizes appeals from "all final

decisions and final judgments of district courts in criminal

matters." District court Case No. 1DTA-10-04522 was dismissed by

the district court, without prejudice, by order of August 2,

2011, for failure to commence trial within the six-month period

prescribed by HRPP Rule 48. The August 2, 2011 order terminated

the proceedings in Case No. 1DTA-10-04522. Cf. State v. Kalani,

87 Hawai'i 260, 261-62, 953 P.2d 1358, 1359-60 (1998) (finding

jurisdiction to consider an appeal brought by prosecution under

HRS § 641-13(1), since "a dismissal without prejudice is a final

order -- it terminates the current case") (emphasis in

original)). It is the final decision of the district court that

is appealable by petitioner pursuant to HRS § 641-12. The ICA's

reliance on Valiani, Tsoie and Kilborn was misplaced.

Petitioner's application for writ of certiorari is

accepted. The ICA's January 4, 2012 Order Dismissing Appeal for

Lack of Appellate Jurisdiction is vacated. Petitioner's appeal

is remanded to the ICA for disposition.

DATED: Honolulu, Hawai'i, April 11, 2012.

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Virginia L. Crandall

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