Appeal from dismissal of the first case does not divest trial court’s jurisdiction over the later-filed second case.

 State v. Michaeledes (HSC March 3, 2023)

Background. The prosecution charged in a felony information and non-felony complaint David Michaeledes with three counts of reckless driving, assault in the 2d degree, and accidents involving substantial bodily injury. Michaeledes moved to dismiss the charging document on the grounds that its language was fatally flawed. The prosecution moved to amend the charging document. The circuit court, with the Honorable Randal G. B. Valenciano presiding, denied the prosecution’s motion to amend, granted Michaeledes’ motion to dismiss, and dismissed the case without prejudice. The prosecution filed a notice of appeal thereby appealing from the order dismissing the case and the order denying its motion to amend.

 

While the case was on appeal, the prosecution filed a second charging document—this time with the correct language—alleging the same counts. Michaeledes moved to dismiss this case on the grounds that the circuit court did not have jurisdiction to preside over the case while the first case was appending on appeal. The circuit court agreed and dismissed the case.

 

The prosecution moved to “reopen the hearing” to clarify if the dismissal of the second charging document was with or without prejudice. The circuit court held that hearing with the lawyers but without Michaeledes. The circuit court clarified it was without prejudice. The prosecution appealed from the order dismissing the case for lack of jurisdiction. Michaeledes appealed on the grounds that it was without prejudice. The appeals were consolidated and transferred to the HSC.

 

The notice of appeal divests the lower court of jurisdiction in that case, not the subsequent one. The HSC examined whether the prosecution could file the second charging document after appealing from the dismissal of the first. “[T]he general rule is that the filing of a notice of appeal divests the trial court of jurisdiction over the appealed case.” State v. Ontiveros, 82 Hawai'i 446, 448-449, 932 P.2d 388, 390-391 (1996).

 

The HSC rejected Michaeledes’s argument that the circuit court could not proceed on the second charging document. The HSC stressed that the “notice of appeal divested the circuit court only of jurisdiction over the appealed case and not the subsequent case, which is based on a distinct charging document.” In other words, jurisdiction is linked to the charging document.

The HSC explained that recharging defendants “does not revive the original case. Rather, recharging the defendant initiates a new case.” State v. Kalani, 87 Hawai'i 260, 262, 953 P.2d 1358, 1360 (1998). Thus, the circuit court had jurisdiction over the second charging document and erred in dismissing the case.

 

Simultaneously hearing the second case in the circuit court and the first one on appeal advances rationale behind the rule in Ontiveros. The general rule in Ontiveros is meant to “avoid the confusion and inefficiency that might flow from placing the same issue before two courts at the same time.” TSA Int’l Ltd. v. Shimizu Corp., 92 Hawai'i 243, 265, 990 P.2d 713, 735 (1999). The HSC explained that these two rationales—avoid confusion and prevent inefficiency—were advanced by the holding here.

 

The HSC noted that allowing the first appeal to proceed on whether the language in the first charging document was faulty raises a legal issue distinct from the second case, which “more broadly concerns Michaeledes’s criminal liability.” Thus, the HSC was not concerned about any confusion that might arise. The HSC also noted that allowing both cases to proceed would not result in “undue inefficiency.” The HSC explained that simultaneously proceeding on both the appeal in one case and the trial proceedings in the other is efficient. The HSC, in a footnote, also confirmed that jeopardy did not attach in either case because “it is generally accepted that in jury trials, jeopardy attaches when the jury is empaneled and sworn[.]” State v. Quitog, 85 Hawai'i 128, 141, 938 P.2d 559, 572 (1997).

 

When it comes to determining dismissal with or without prejudice here, the rule of lenity does not apply The HSC made quick work of Michaeledes’s arguments for his appeal from the dismissal of the second charge without prejudice. First, it rejected his argument that the dismissal for lack of jurisdiction should be with prejudice based on the rule of lenity. The rule of lenity does not apply here. It is a rule of statutory construction that is used to assist courts in interpreting ambiguous statutory language. State v. Guyton, 135 Hawai'i 372, 380, 351 P.3d 1138, 1146 (2015).

 

The circuit court did not have to consider Estencion factors when dismissing the case for lack of jurisdiction. The HSC also rejected Michaeledes’s argument that the circuit court erred in articulating the Estencion factors when it dismissed the case without prejudice. Those factors must be applied when the right to a timely trial pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 48 is violated and the case must be dismissed. State v. Estencion, 63 Haw. 264, 269, 625 P.2d 1040, 1044 (1981). It does not apply to pretrial dismissals for lack of jurisdiction pursuant to HRPP Rule 12(b)(1). Moreover, the HSC noted that dismissal with prejudice is not “appropriate given the circumstances of this case[.]” The jurisdictional defect is curable and “would be eliminated once the first appeal is resolved[.]”

 

The defendant’s presence is not required for conferences “upon a question of law.” Finally, the HSC rejected Michaeledes’s argument that the circuit court erred in holding the “clarification” hearing without the presence of the defendant. While HRPP Rule 43 requires defendants to be present “at pretrial evidentiary hearings” and “at every state of the trial,” defendants are not needed when “the proceeding is a conference or argument upon a question of law[.]” HRPP Rule 43(c)(2). And that was what the hearing was in this case—a hearing on a purely legal question.