*** NOT FOR PUBLICATION ***
NO. 27267
IN THE
SUPREME COURT OF THE STATE OF HAWAI`I
CALVIN
FLOURNOY, JR., Petitioner-Appellant
vs.
STATE
OF HAWAI`I, Respondent-Appellee
APPEAL FROM THE SECOND CIRCUIT COURT
(S.P.P. NO.
05-1-0001)
ORDER DISMISSING APPEAL
(By: Nakayama,
J., for the court
(1))
Upon review of the record, it
appears that appellant's notice of appeal -- dated April 22, 2005 and
filed on April 29, 2005 --
purported to appeal an April 18, 2005 circuit court order denying
appellant's Rule 40 petition. However, the record shows
that an order denying the Rule 40 petition was not entered by the
circuit court until May 2, 2005 and no ruling, decision or
order on the Rule 40 petition had been announced or entered by the
circuit court at the time the notice of appeal was filed. Consequently,
the April 29, 2005 notice of appeal is a legal nullity. See
HRS § 641-11; HRPP 40(h); HRAP 4(b);
Grattafiori v. State of Hawai`i,
79 Hawai`i 10, 897 P.2d 937 (1995)(a notice of appeal filed before
the announcement or
entry of an order denying post-conviction relief has no legal effect
because there is no jurisdictional basis to file an appeal
from an order that has not yet been announced or entered). Appellant
did not file a new notice of appeal within thirty days
after entry of the May 2, 2005 order denying the Rule 40 petition.
Thus, we lack jurisdiction over this appeal. Therefore,
IT IS HEREBY ORDERED that
this appeal is dismissed for lack of appellate jurisdiction.
DATED: Honolulu, Hawai`i,
May 8, 2006.
1.
Considered by: Moon, C.J., Levinson, Nakayama, Acoba, and Duffy, JJ.