NO. 24153


IN THE SUPREME COURT OF THE STATE OF HAWAI`I



STATE OF HAWAI`I, Plaintiff-Appellee


vs.

HABIB SHABAZZ, also known as "T-Bone," Defendant-Appellant

and

MARIO CRAWLEY, also known as "Quick," HARVEY CARVIS, JAMES
SHAKESPEARE, MEKA EGOEZI, and LLOYD SWANSON, Defendants


APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 99-0693)


ORDER DISMISSING APPEAL
(By: Moon, C.J., Levinson, Nakayama, Ramil, and Acoba, JJ.)

Defendant-appellant Habib Shabazz appeals from the order of the circuit court of the first circuit, the Honorable Sandra A. Simms presiding, resentencing him to an indeterminate term of incarceration of ten years and revoking probation. On appeal, Shabazz argues that the trial court erred in: (1) relying on uncertified documents in concluding that Shabazz's probation in another matter had been revoked and he had been ordered incarcerated for an indeterminate term of ten years; (2) revoking Shabazz's probation where he had not violated any term or condition of the judgment and order of probation; and (3) violating Shabazz's due process rights when it revoked his probation where Shabazz had not violated any of the terms or conditions of the probation. The prosecution agrees. It argues that the circuit court erred in revoking Shabazz's probation based upon the belief that concurrent terms of incarceration and probation were illegal. Shabazz and the prosecution ask this court to vacate the judgment and order of the circuit court and remand for proceedings to determine whether Shabazz can comply with the terms of his probation and if not, whether amendments are necessary and appropriate.

On May 20, 2002, the Intermediate Court of Appeals (ICA) vacated Shabazz's conviction of sexual assault in the second degree and remanded the case for a new trial. We denied the prosecution's petition for certiorari on June 28, 2002. Inasmuch as the revocation of probation and resentencing were for the underlying sexual assault conviction, the issues presented by Shabazz in this appeal are moot.

THEREFORE, IT IS HEREBY ORDERED that the appeal is dismissed for mootness.

DATED: Honolulu, Hawai`i, August 12, 2002.