STATE OF HAWAI`I, Plaintiff-Appellant
MUCHURO HIGA, JR., Defendant-Appellee
In accordance with Hawai`i Rules of Appellate Procedure Rule 35, and after carefully reviewing the record and the briefs submitted by the parties, and duly considering and analyzing the law relevant to the arguments and issues raised by the parties,
IT IS HEREBY ORDERED that the court's order filed on November 21, 2002, from which the appeal is taken, is vacated and the case remanded to the court for disposition in accordance with this order.
DATED: Honolulu, Hawai`i, February 24, 2005.
On the briefs:
Bryan K. Sano,
City & County of
1. The Honorable Sandra A. Simms presided.
Defendant's arguments that "prosecution of [Defendant] under HRS
§ 291-4.4 is barred," "the indictment's defect did
not vest the circuit court with subject matter jurisdiction . . . ,"
and "HRS § 291E-61 (Supp. 2001) is not a 'substantial
re-enactment' of HRS § 291-4.4 (Supp. 1999) . . ." are disposed of
and subsumed in the analyses set forth in the majority and
dissenting opinions in Domingues. Defendant
also argues that, under the rule of lenity, "to the extent that there
ambiguity attendant to the legislature's repeal of HRS § 291-4.4,
that ambiguity should be resolved in [his] favor." However, the repeal
of HRS § 291-4.4 was not ambiguous.