In the past, when a trial court has improperly denied a defendant's motion to dismiss for violation of HRPP Rule 48 and the defendant has been convicted in a subsequently held trial, the appellate court has, without extended analysis, vacated the defendant's conviction and remanded the case for entry of an order of dismissal, with or without prejudice. See, e.g., Hoey, supra; State v. Wasson, 76 Haw. 415, 879 P.2d 520 (1994); Ikezawa, supra; State v. Kahawai, 9 Haw. App. 205, 831 P.2d 936, cert. denied, 73 Haw. 627, 834 P.2d 1315 (1992); State v. Ho, 7 Haw. App. 516, 782 P.2d 29 (1989); State v. Hanawahine, 69 Haw. 624, 755 P.2d 466 (1988); cf. State v. Dwyer, 78 Haw. 367, 893 P.2d 795 (1995) (remanding for application of Rule 48); State v. Lau, 78 Haw. 54, 890 P.2d 291 (1995) (remanding for application of Rule 48); State v. Hutch, 75 Haw. 307, 861 P.2d 11 (1993) (remanding case for "entry of appropriate [findings of fact]" regarding time periods that may have been excludable); State v. Caspino, 73 Haw. 256, 831 P.2d 1334 (1992) (remanding case to trial court for findings regarding excludability of certain time period, and directing, that if time period is found not to be excludable, to dismiss the charges); State v. English, 68 Haw. 46, 705 P.2d 12 (1985) (vacating judgment of conviction and remanding for entry of order of dismissal with prejudice); State v. Gillis 63 Haw. 285, 626 P.2d 190 (1981) (reversing defendant's conviction and dismissing charge with prejudice). Although this approach to dealing with erroneous denials of HRPP Rule 48 motions to dismiss is understandable, we are troubled because vacating convictions on that basis will, in many cases, subvert the

One of the continuances was due to the defendant’s counsel falling ill, and one was at the request of the State because it was unable to proceed to trial. 78 Hawai‘i 367, 371, 893 P.2d 795, 799 (1995). The Dwyer court found that there was no attempt by the State to deliberately delay the defendant’s trial.

This court determines whether a defendant's constitutional right to a speedy trial under either the sixth amendment to the United States Constitution or article I, section 14 of the Hawai`i Constitution (1978) is violated by applying the four-part test articulated in Barker, supra. State v. Dwyer, 78 Haw. 367, 371, 893 P.2d 795, 799 (1995). The four Barker factors are: (1) length, of delay; (2) the reasons for the delay; (3) the defendant's insertion of his or her right to speedy trial; and (4) prejudice to the defendant.

Thus, to determine whether dismissal was required under HRPP Rule 48, the start date and all excludable periods must be identified. See State v. Dwyer, 78 Hawai'i 367, 893 P.2d 795 (1995). It is uncontested in the instant case that the indictment was filed on October 27, 1999 and is the date that triggers HRPP Rule 48(b)(1).

In re Chow, 3 Haw. App. 577, 656 P.2d 105, 109 (1982) (citing In re Keamo, 3 Haw. App. 360, 650 P.2d 1365 (1982)). State v. Medeiros, 89 Haw. 361, 365 n. 4, 973 P.2d 736, 740 n. 4 (1999) (quoting State v. Dwyer, 78 Haw. 367, 370, 893 P.2d 795, 798 (1995)).

As such, "jurisdiction extends to all matters properly brought before them, unless precluded by constitution or statute." In re Chow, 3 Haw. App. 577, 656 P.2d 105, 109 (1982) (citing In re Keamo, 3 Haw. App. 360, 650 P.2d 1365 (1982)).State v. Dwyer, 78 Haw. 367, 370, 893 P.2d 795, 798 (1995). In short, it appears that the legislature has accorded the circuit courts the power to issue whatever orders are "necessary" to "carry into full effect the[ir] powers" and for the "promotion" or "furtherance" of justice, unless specifically prohibited by statute.

When calculating whether trial was commenced within the 180-day time period, it is necessary to identify all excludable periods. Haw. R. Pen. P. 48(c); State v. Diaz, 100 Hawai'i 210, 222, 58 P.3d 1257, 1269 (2002) ("[T]o determine whether dismissal was required under HRPP Rule 48, the start date and all excludable periods must be identified.") (citing State v. Dwyer, 78 Hawai'i 367, 893 P.2d 795 (1995). A. Abuse of Family or Household Members (count 2)

“ ‘HRPP Rule 48(b) mandates the dismissal of criminal charges if a trial on those charges does not commence within six months, construed as one hundred eighty days, from the time of arrest or of filing of charges, whichever is sooner.’ “ Samonte, 83 Hawai‘i at 514, 928 P.2d at 8 (quoting State v. Jackson, 81 Hawai‘i 39, 50, 912 P.2d 71, 82 (1996) ). “A violation of HRPP Rule 48 entitles [Defendant] to have the trial court dismiss the charges against him ‘with or without prejudice.’ “ State v. Dwyer, 78 Hawai‘i 367, 371, 893 P.2d 795, 799 (1995) (quoting HRPP Rule 48(b) ).Determining whether the HRPP Rule 48 period has run in this case involves a two-step process: first, ascertaining the date on which the clock started to run under HRPP Rule 48(b)(1) ; and second, calculating any excludable periods under HRPP Rule 48(c).

Lindsey has also failed to demonstrate that his constitutional rights to a speedy trial were violated. Hawai‘i courts have applied the four-part test articulated in Barker v. Wingo, 407 U.S. 514 (1972) to determine whether an accused's constitutional right to a speedy trial has been violated. State v. Almeida, 54 Haw. 443, 447, 509 P.2d 549, 552 (1973); State v. Dwyer, 78 Hawai‘i 367, 371, 893 P.2d 795, 799 (1995). The four factors to be considered are: (1) length of delay; (2) reasons for the delay; (3) defendant's assertion of his or her right to a speedy trial; and (4) prejudice to the defendant.

A delay longer than nine months did not result in prong two (the reason for the delay) being weighed in favor of the defendant. White, 92 Hawai`i at 203, 990 P.2d at 101 (holding that a period of eleven months, not attributable to the defendant, was insufficient to render prong two in favor of defendant);compare with Barker, 407 U.S. at 533-34, 92 S.Ct. at 2193-94 (holding that a four-year non-attributable delay was excessive, and therefore prong two weighed in favor of defendant), and State v. Dwyer, 78 Haw. 367, 371, 893 P.2d 795, 799 (1995) (determining that a thirty-two month delay was sufficient to allow prong two to weigh in favor of the defendant). A deliberate attempt to hamper a defense by causing delays should be heavily weighted against the prosecution versus a neutral reason like overcrowded courts.