§641-13  By State in criminal cases.  [L
2004, c 202, §70 amendment repealed June 30, 2010.  L 2006, c 94, §1.] 
An appeal may be taken by and on behalf of the State from the district or
circuit courts to the intermediate appellate court, subject to chapter 602, in
all criminal matters, in the following instances:



(1)  From an order or judgment quashing, setting
aside, or sustaining a motion to dismiss any indictment, information, or
complaint or any count thereof;



(2)  From an order or judgment sustaining a special
plea in bar or dismissing the case where the defendant has not been put in
jeopardy;



(3)  From an order granting a new trial;



(4)  From an order arresting judgment;



(5)  From a ruling on a question of law adverse to the
State, where the defendant was convicted and appeals from the judgment;



(6)  From the sentence, on the ground that it is
illegal;



(7)  From a pretrial order granting a motion for the
suppression of evidence, including a confession or admission, or the return of
property,2 in which case the intermediate appellate court or the
supreme court, as the case may be, shall give priority to the appeal and the
order shall be stayed pending the outcome of the appeal;



(8)  From an order denying a request by the State for
protective order for nondisclosure of witness for reason of personal safety
under Rule 16(e)(4) of the Hawaii Rules of Penal Procedure, in which case the
intermediate appellate court1 shall give priority to the appeal and
the order shall be stayed pending outcome of the appeal;



(9)  From a judgment of acquittal following a jury
verdict of guilty; and



(10)  From a denial of an application for an order of
approval or authorization of the interception of a wire, oral, or electronic
communication pursuant to section 803‑44. [L 1911, c 40, §1; RL 1925,
§2522; am L 1931, c 37, §2; RL 1935, §3551; RL 1945, §9552; RL 1955, §212-2;
HRS §641-12; am L 1972, c 148, §1; ren HRS §641-13; am L 1977, c 146, §1; am L
1979, c 111, §6(4); am L 1982, c 81, §1; am L 1987, c 84, §1; am L 2004, c 62,
§2 and c 202, §70; am L 2006, c 200, §3]



 



Note



 



  L 2004, c 202, §82 provides:



  "SECTION 82.  Appeals pending in the supreme court as of
the effective date of this Act [July 1, 2006] may be transferred to the
intermediate appellate court or retained at the supreme court as the chief
justice, in the chief justice's sole discretion, directs."



 



Revision Note



 



  Section is a blend of L 2004, c 202, §70 and L 2006, c 200, §3.



 



General Note



 



  Appeal, see Hawaii Rules of Appellate Procedure.  See also
appended chapter note, pt. I A.



  Oral ruling of district magistrate constitutes an order
within the meaning of this section.  41 H. 591.  But appeal by State from oral
order of circuit court dismissing indictment is nugatory.  45 H. 501, 370 P.2d
480.



  Special plea in bar, sustaining of, what constitutes.  25 H.
55; 47 H. 361, 389 P.2d 439.  See 39 H. 522.



  No appeal by State from ruling on question of law unless
defendant convicted and appeals.  34 H. 662.



  No right to review after acquittal of accused by verdict of
jury.  42 H. 102.



  Remand after reversal of ruling sustaining demurrer.  23 H.
409.



  Under prior law sustaining of demurrer to indictment not
appealable unless based on construction of statute or its invalidity.  21 H.
56, 57; 23 H. 546; 29 H. 827.



  Pretrial order to suppress evidence; "special plea in
bar" construed.  50 H. 525, 445 P.2d 36.



  When State appeals from the quashing of an indictment,
defendant is still subject to original requirements of bail.  53 H. 76, 488
P.2d 329.



  Cited:  37 H. 601, 603; 48 H. 247, 256, 397 P.2d 575.



 



Rules of Court



 



  Appeals, when taken, see HRAP rule 4.



 



Case Notes



 



  Conditional discharge of defendant under section 712-1255 is
not a final disposition of the case appealable by the State.  60 H. 576, 592
P.2d 832.



  Stipulation for joint hearing on motion to suppress and trial
on merits is not a waiver by State of its right to appeal from ruling on motion
to suppress.  62 H. 44, 609 P.2d 131.



  Under circumstances, jeopardy did not attach even though jury
was sworn.  64 H. 395, 641 P.2d 1338.



  Jeopardy did not attach where case dismissed after defendant
arraigned but before State's first witness sworn.  68 H. 238, 709 P.2d 607.



  State could appeal only under paragraph (2) where case
dismissed after all evidence taken.  68 H. 653, 729 P.2d 385.



  Deferred acceptance of guilty and deferred acceptance of no
contest pleas are not appealable.  69 H. 438, 746 P.2d 568.



  Authorizes appellate jurisdiction to review orders granting
pretrial motions to suppress.  70 H. 206, 767 P.2d 1238.



  Language does not allow an appeal from a sentence on the
ground that the sentence was imposed in an illegal manner, but allows an appeal
from an illegal sentence.  71 H. 624, 801 P.2d 558.



  State's right to appeal in criminal cases is limited to
instances stated in section; section does not give State right to appeal from
granting of deferred acceptance of guilty or deferred acceptance of no contest
pleas.  74 H. 75, 837 P.2d 776.



  While it is necessary for "entire case" to be
dismissed for paragraph (2) to apply, there is nothing in the language of this
section to indicate that this would prevent paragraph (1) from applying;
prosecution not barred from bringing appeal of dismissal of counts of
indictment, where counts dismissed after trial began because counts did not
include essential elements of offenses charged.  78 H. 373, 894 P.2d 70.



  In a jury trial, issues decided by the judge are
"questions of law" appealable under this section, while issues
decided by the jury are "questions of fact" and are not appealable. 
85 H. 462, 946 P.2d 32.



  As defendant's "motion to dismiss" following a jury
verdict of guilty deemed post-verdict motion for judgment of acquittal
following a jury verdict of guilty pursuant to HRPP rule 29(c), paragraph (9)
authorized prosecution to assert appeal from this judgment of acquittal; thus,
supreme court had appellate jurisdiction over appeal.  87 H. 108, 952 P.2d 865.



  Double jeopardy clauses not violated by prosecution's appeal
from judgment of acquittal following jury's verdict of guilty pursuant to
paragraph (9).  87 H. 108, 952 P.2d 865.



  Paragraph (1) permits prosecution to appeal from both
dismissals with prejudice and without prejudice.  87 H. 260, 953 P.2d 1358.



  Where trial court's order was an order of dismissal and not a
judgment of acquittal, order was appealable under paragraph (1).  97 H. 505, 40
P.3d 907.



  Paragraph (7) authorizes the prosecution to appeal orders
suppressing evidence as illegally obtained, the intent of the statute being to
facilitate the administration of justice in criminal cases by allowing the
prosecution to obtain a conclusive ruling on issues involving searches,
seizures, and confessions via direct appeal.  104 H. 224, 87 P.3d 893.



  The language of paragraph (7), which allows the prosecution
to appeal from "a pretrial order granting a motion for the suppression of
evidence," includes within its scope the right to appeal from a trial
court’s voluntariness determination mandated by §621-26.  104 H. 224, 87 P.3d
893.



  As district family court proceedings under §571-11(1)
concerning juvenile law violators are considered to be noncriminal proceedings,
prosecution's appeal of family court order was not authorized by paragraph
(7).  104 H. 403, 91 P.3d 485.



  As the prosecution was not authorized to appeal the judge's
pretrial discovery order under this section, the prosecution, as mandamus
petitioner, would have been without a remedy unless extraordinary relief was
granted; where trial judge did not exceed judge's authority under HRPP, rule
16(d) by ordering the disclosure of the information on the laser unit
calibration distances and locations in prosecution of defendant for speeding,
petition for writ of mandamus was denied.  116 H. 23, 169 P.3d 975.



  Deferred acceptance of no contest plea not appealable until
no contest plea accepted.  5 H. App. 357, 692 P.2d 1171.



  Section is to be strictly construed.  7 H. App. 516, 782 P.2d
29.



  Paragraph (9) did not preclude appellate court's jurisdiction
over State's appeal where trial court's judgment of acquittal was "in form
only and not in substance"; trial court made no factual determination as
to some or all of the elements charged, but grounded its ruling on the
conclusion that the charges were defective as a matter of law.  88 H. 477
(App.), 967 P.2d 674.