*** NOT FOR PUBLICATION ***
NO. 25905
IN THE SUPREME COURT OF THE STATE OF HAWAI`I
STATE OF HAWAI`I, Plaintiff-Appellant,
vs.
KANIELA K. DAVIS, Defendant-Appellee.
APPEAL FROM THE
CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 02-1-2345)
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 advanced and the issues raised, we resolve the prosecution's appeal as follows:
This court's decision in State v. Smith, 103 Hawai`i 228, 81 P.3d 408 (2003), is entirely dispositive of the present matter. Id. 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"). Thus, given the "plain and unambiguous" ruling of this court in Smith, the circuit court erred in sentencing Davis pursuant to HRS § 706-622.5 instead of applying HRS § 706-606.5. Therefore,
IT IS HEREBY ORDERED that the portion circuit court's judgment sentencing Davis 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, March 1, 2004.
Alexa D.M. Fujise,
deputy prosecuting
attorney, for
plaintiff-appellant