*** NOT FOR PUBLICATION ***


NO. 27284



IN THE SUPREME COURT OF THE STATE OF HAWAI`I


ROGELIO L. GANOTISI, Petitioner-Appellant,


vs.


STATE OF HAWAI`I, Respondent-Appellee.


APPEAL FROM THE FIFTH CIRCUIT COURT
(S.P.P. NO. 04-1-0008)



ORDER DISMISSING APPEAL
(By: Nakayama, J. for the court (1))

Upon review of the record, it appears that the circuit court's December 9, 2004 order denying appellant's HRPP Rule 40 petition for post-conviction relief was appealable by notice of appeal filed with the circuit court within thirty days after the order was entered. See HRPP 40(h); HRAP 4(b)(1). Appellant's notice of appeal was filed with the circuit court on May 9, 2005, five months after entry of the December 9, 2004 order and was untimely. Our recognized exceptions to the requirement that notices of appeal be timely filed do not apply in this case. Thus, we lack jurisdiction. See Grattafiori v. State, 79 Hawai`i 10, 13, 897 P.2d 937, 940 (1995)("[C]ompliance with the requirement of the timely filing of a notice of appeal is jurisdictional, and we must dismiss an appeal on our own motion if we lack jurisdiction."). Therefore,

IT IS HEREBY ORDERED that this appeal is dismissed for lack of appellate jurisdiction.

DATED: Honolulu, Hawai`i, August 31, 2005.



1.    Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.