***
NOT FOR PUBLICATION ***
NO.
26393
IN
THE SUPREME COURT OF THE STATE OF HAWAI`I
STATE
OF HAWAI`I,
Plaintiff-Appellee,
vs.
JOHN
GUY HELEMANO, JR.,
Defendant-Appellant.
APPEAL FROM THE FIRST CIRCUIT COURT
(FC-CR NO. 03-1-2523)
SUMMARY DISPOSITION ORDER
(By: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.)
Upon careful review of the record and the briefs submitted by the
parties, it
appears the State concedes that the family circuit court failed to
comply with the
Tachibana requirement
of obtaining an on-the-record waiver from the Appellant
regarding his right to testify. See Tachibana v. State, 79
Hawai`i 226, 236, 900
P.2d 1293, 1303 (1995). We also conclude that the State's confession of
error is
supported by the record and is well-founded in law. See State v. Wasson, 76
Hawai`i 415, 418, 879 P.2d 520, 523 (1994); Territory v. Kogami, 37
Haw. 174, 175
(1945). Therefore,
IT IS HEREBY
ORDERED that the family circuit court's judgment of conviction, filed
on January 13, 2004, for violation of an order of protection (two
counts), Hawai`i
Revised Statutes, § 586-11, is vacated, and the case is remanded
to the family
circuit court for retrial.
DATED: Honolulu,
Hawai`i, September 28, 2004.
On the briefs:
Jon K. Ikenaga, deputy
public defender, for
defendant-appellant
Loren J. Thomas, deputy
prosecuting attorney, for
plaintiff-appellee