Opinion
NO. CAAP–13–0003817
09-20-2016
STATE of Hawai‘i, Plaintiff–Appellee, v. Jesse Carter LAY, Defendant–Appellant
On the briefs: Daniel G. Hempey, (Hempey & Meyers LLP), Lihue, for Defendant–Appellant. Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, for Plaintiff–Appellee.
On the briefs:
Daniel G. Hempey, (Hempey & Meyers LLP), Lihue, for Defendant–Appellant.
Tracy Murakami, Deputy Prosecuting Attorney, County of Kauai, for Plaintiff–Appellee.
(By: Nakamura, Chief Judge, and Foley and Leonard, JJ.)
SUMMARY DISPOSITION ORDER
Defendant–Appellant Jessie Carter Lay (Lay) filed an appeal from the "Judgment of Conviction and Probation Sentence" (Judgment) entered by the Circuit Court of the Fifth Circuit (Circuit Court). Lay was convicted of second-degree negligent injury and driving under the influence of an intoxicant.
The Honorable Randal G.B. Valenciano presided.
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Lay died while his appeal was pending, and his counsel filed a "Suggestion of Death." On August 15, 2016, this court issued an order seeking the position of each party regarding further proceedings in this case in light of the Suggestion of Death. In response, Lay's counsel stated that after consulting with representatives of Lay's estate, Lay's counsel does not intend to file a motion for substitution of party. The Circuit Court's Judgment did not include an order of restitution, and Lay's counsel represented that as the result of the settlement of a civil lawsuit, there was no issue of restitution in Lay's criminal case. Lay's counsel recommended that this court dismiss the appeal as moot, vacate the Judgment, and dismiss the underlying criminal case.
In its response to our order, Plaintiff–Appellee State of Hawai‘i (State) asserted that there is no restitution owing in the underlying criminal case. The State further stated that it does not oppose dismissal of the appeal and the underlying criminal case.
In light of Lay's death while his appeal was pending, and since no motion for substitution of party has been filed by any party, there is no restitution order at issue, and the State does not oppose dismissal of the underlying criminal case, we exercise our discretion to dismiss the appeal as moot, vacate the Judgment, and dismiss the underlying criminal case. See State v. Makaila , 79 Hawai‘i 40, 45, 897 P.2d 967, 972 (1995).
Accordingly, IT IS HEREBY ORDERED that this appeal is dismissed as moot, the Circuit Court's Judgment filed on October 3, 2013, is vacated, and the indictment against Lay in this case is dismissed.