NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER
NO. 29018
IN
THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I
STATE
OF HAWAI‘I, Plaintiff-Appellee,
v.
JULIA C. COMPTON, Defendant-Appellant.
Upon review of (1) Petitioner-Appellant Julia C. Compton's (Appellant Compton) September 29, 2008 "Response to Order Filed September 15, 2008 and Request for Stay of Appeal Pending Disposition of Additional Issues, or in the Alternative, for Dismissal of Appeal Without Prejudice" and (2) the record, it appears that we lack appellate over this appeal from the Honorable Elizabeth A. Strance's January 22, 2008, "Findings of Fact, Conclusions of Law and Order Denying in Part and Setting Evidentiary Hearing on Petition to Withdraw Plea and Vacate or Set Aside Judgment and Sentence Filed November 7, 2007" (the January 22, 2008 order), because the January 22, 2008 order does not resolve all of the issues in Appellant Compton's petition for post-conviction relief pursuant to Rule 40 of the Hawai‘i Rules of Penal Procedure (HRPP).
"According to HRPP [Rule] 40(h), appeals from proceedings for post-conviction relief may be made from a judgment entered in the proceeding and must be taken in accordance with Rule 4(b) of the Hawai‘i Rules of Appellate Procedure (HRAP)." Grattafiori v. State, 79 Hawai‘i 10, 13, 897 P.2d 937, 940 (1995) (internal quotation marks and brackets omitted) (emphasis added). Under HRAP Rule 4(b)(1), a party may file a notice of appeal "within 30 days after the entry of the judgment or order appealed from." HRAP Rule 4(b)(1). Under HRAP Rule 4(b)(4), a party may file a notice of appeal "after the announcement of a decision, sentence or order but before entry of the judgment or order[.]" Nevertheless, HRAP Rule 4(b) requires the entry of a written judgment or written order, and HRAP Rule 4(b)(3) provides that "[a] judgment or order is entered within the meaning of this subsection when it is filed with the clerk of the court." HRAP Rule 4(b)(3). Consequently, it is the general rule that "an appeal in a criminal case is permitted only after a final judgment of the circuit court has been rendered." State v. Baranco, 77 Hawai‘i 351, 353, 884 P.2d 729, 731 (1994). "While [the supreme court] treat[s] an appeal as timely where a defendant has filed his or her notice of appeal after the [circuit] court has announced an oral decision but before the entry of a written order or judgment, . . . [the supreme court] cannot do so where the [circuit] court has rendered no decision whatsoever." Grattafiori, 79 Hawai‘i at 14, 897 P.2d at 941. Even after the circuit court has rendered an oral decision, if the circuit court does not enter a corresponding written order or judgment, then "[a] notice of appeal designating [the] oral order is nugatory." State v. Bulgo, 45 Haw. 501, 504, 370 P.2d 480, 482 (1962) (internal quotation marks omitted).
The January 22, 2008 order does not resolve all of the issues in Appellant Compton's HRPP Rule 40 petition for post-conviction relief, and the record on appeal does not contain a written order or written judgment that resolves the remaining issues in Appellant Compton's HRPP Rule 40 petition for post-conviction relief. Therefore, Appellant Compton's appeal is premature and we lack jurisdiction over this appeal. Accordingly,
IT IS HEREBY ORDERED that Appellant Compton's September 29, 2008 alternative request to dismiss this appeal is granted, and this appeal is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai‘i, October 24, 2008.