Opinion
NO. CAAP-15-0000568
12-17-2015
ALBERT BATALONA, Petitioner-Appellant, v. STATE OF HAWAI'I, Respondent-Appellee
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(S.P.P. NO. 10-1-0075; CR. NO. 03-1-0787) ORDER DISMISSING THE APPEAL FOR LACK OF APPELLATE JURISDICTION
(By: Nakamura, C.J., Reifurth and Ginoza, JJ.)
Upon review of the records, it appears that this court lacks appellate jurisdiction over the appeal from the Amended Findings of Fact, Conclusions of Law, and Order Granting in Part and Denying in Part Petition for Post-Conviction Relief (Amended Order), filed On July 17, 2015 in the Circuit Court of the First Circuit. In the Amended Order, the Circuit Court denied in part and granted in part Petitioner-Appellant Albert Batalona's Petition for Post-Conviction Relief (Petition). Specifically, the Circuit Court denied Appellant's challenge to his extended term sentence and granted Appellant a hearing on his claim regarding imposition of restitution and a fine. The Circuit Court scheduled a hearing on October 7, 2015. However, the Circuit Court's decision on Appellant's claim regarding imposition of a fine and restitution is not in the record on appeal.
"The right of appeal in a criminal case is purely statutory and exists only when given by some constitutional or statutory provision." State v. Poohina, 97 Hawai'i 505, 509, 40 P.3d 907, 911 (2002) (citation and internal quotation marks omitted). Pursuant to HRS § 641-11 and "HRPP [Rule] 40(h), appeals from proceedings for post-conviction relief may be made from a judgment entered in the proceeding and must be taken in accordance with Rule 4(b) of the Hawai'i Rules of Appellate Procedure (HRAP)." Grattafiori v. State, 79 Hawai'i 10, 13, 897 P.2d 937, 940 (1995) (internal quotation marks and brackets omitted).
The Amended Order set a hearing on Appellant's claim regarding imposition of a fine and restitution. However, the record on appeal does not contain an order disposing of Appellant's claim regarding imposition of a fine and restitution. There is no final adjudication of the Petition that leaves nothing further to be accomplished. Therefore, there is no final appealable judgment or order, pursuant to HRS § 641-11 and HRPP Rule 40(h).
IT IS HEREBY ORDERED that the appeal is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai'i, December 17, 2015.
/s/
Chief Judge
/s/
Associate Judge
/s/
Associate Judge