IN THE SUPREME COURT OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellant,
K. NAKANO, Defendant-Appellee.
APPEAL FROM THE FIRST CIRCUIT COURT
(CR. NO. 02-1-1545)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.)
Upon carefully reviewing the record and the briefs submitted by the parties, and having given due consideration to the arguments advocated and the issues raised, we conclude that this court's decisions in State v. Smith, 103 Hawai`i 228, 81 P.3d 408 (2003), and State v. Walker, 106 Hawai`i 1, 100 P.3d 595 (2004), are entirely dispositive of the present matter. Smith, 103 Hawai`i at 234, 81 P.3d at 414 (holding that "in all cases in which HRS § 706-606.5 is applicable, including those in which a defendant would otherwise be eligible for probation under HRS § 706-622.5, the circuit courts must sentence defendants pursuant to the provisions of HRS § 706-606.5"); Walker, 106 Hawai`i at 9, 100 P.3d at 603 (holding that, although the July 1, 2004 amendments to HRS § 706-622.5 give the lower courts discretion to sentence first-time non-violent drug offenders to probation, these amendments did not apply retroactively). Thus, given the "plain and unambiguous" rulings of this court in Smith and Walker, the circuit court erred in sentencing Nakano pursuant to HRS § 706-622.5 instead of applying HRS § 706-606.5. Therefore,
IT IS HEREBY ORDERED that the portion of the circuit court's judgment sentencing Nakano pursuant to HRS § 706-622.5 is vacated, and we remand this matter to the circuit court for resentencing in accordance with the provisions of HRS § 706-606.5.
DATED: Honolulu, Hawai`i, January 19, 2005.
On the briefs:
James M. Anderson,
Deputy Prosecuting Attorney,
State of Hawai`i