NO. 26020
IN THE
SUPREME COURT OF THE STATE OF HAWAI`I
STATE
OF HAWAI`I, Plaintiff-Appellee
vs.
ROBERT LEE
TETU, Defendant-Appellant
APPEAL FROM
THE FIRST CIRCUIT COURT
(CR.
NO. 02-1-1456)
ORDER DENYING
DEFENDANT-APPELLANT
ROBERT TETU'S MOTION TO
DISMISS APPEAL
(By: Duffy, J. for the court (1))
Upon consideration of
the motion to dismiss the appeal of Defendant-Appellant Robert Tetu
filed by court-appointed
counsel Jacob Merrill, the papers in support, and the records and files
herein, it appears that: (1) on August 11, 2003,
Defendant-Appellant Robert Tetu filed a notice of appeal in this case;
(2) counsel now moves for dismissal because he
believes Tetu no longer wishes to pursue the appeal; (3) counsel lists
Cr. No. 02-1-1091 as the underlying criminal number
for this appeal, but that it not the criminal case that is the subject
of this appeal; (4) this appeal stems from a conviction and
sentence entered in Cr. No. 02-1-1456; (5) there is no declaration of
Tetu in support of dismissal and counsel's declaration
that he made one phone call to locate Tetu after Tetu missed a meeting
does not demonstrate that he made a diligent effort
to locate Tetu to determine whether Tetu wants to pursue this appeal.
Therefore,
IT IS HEREBY ORDERED that the motion to
dismiss the appeal is denied. This denial is without prejudice to a
subsequent motion that contains the correct caption and criminal
number, and includes an affidavit or declaration of Tetu
that complies with HRAP Rule 42(c) or, if Tetu cannot be located, a
declaration of counsel that indicates counsel made a
diligent effort to locate Tetu.
DATED: Honolulu, Hawai`i, April 27, 2004.
Jacob M. Merrill
for defendant-appellant
on the motion
1.
Considered by: Moon,
C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.