NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER


NO. 28930




IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I





STATE OF HAWAI‘I,
Plaintiff-Appellee,

v.


JON JOSEPH RUTHERFORD, aka JOHNJOSEPH RUTHERFORD,
Defendant-Appellant.





APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CR. NO. 06-1-1901)





ORDER GRANTING MOTION FOR ORDER OF DISMISSAL OF APPEAL
(By: Recktenwald, Chief Judge, Watanabe and Nakamura, JJ.)

Upon consideration of the Motion for Order of Dismissal of Appeal filed by the Office of the Public Defender, appellate counsel for Defendant-Appellant Jon Joseph Rutherford (Appellant), the papers in support, and the records and files herein, the court finds: (1) following a jury trial, Appellant was convicted and sentenced for the offense of sexual assault in the second degree; (2) Appellant served his term of imprisonment and is no longer in custody; (3) on January 2, 2008, the Office of the Public Defender filed a notice of appeal on behalf of Appellant; (4) Taryn Tomasa, the deputy public defender assigned to prosecute Appellant's appeal, has been unable to locate Appellant through the contact information Appellant provided to the Office of the Public Defender; (5) Tomasa has been unable to locate Appellant through the contact information Appellant provided to the probation office; (6) Tomasa has been unable to contact Appellant through the contact information provided by Appellant's family; (7) as required by Hawai‘i Rules of Appellate Procedure (HRAP) Rule 42(c), Tomasa's declaration demonstrates that she has exercised diligent efforts to locate Appellant; and (8) under the circumstances presented, it appears Appellant has abandoned his appeal. Therefore,

IT IS HEREBY ORDERED that the Motion for Order of Dismissal of Appeal is granted, and this appeal is dismissed pursuant to HRAP Rule 42(c).

DATED: Honolulu, Hawai‘i, May 23, 2008.