Alvarado, Jr. v. State

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NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-21-0000716 21-OCT-2022 08:27 AM Dkt. 48 ODSLJ NO. CAAP-21-0000716 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI#I FRANCISCO ALVARADO, JR., Petitioner-Appellant, v. STATE OF HAWAI#I, Respondent-Appellee. APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1PR191000005; CR. NO. 1PC051001701) ORDER DISMISSING APPEAL FOR LACK OF APPELLATE JURISDICTION (By: Leonard, Presiding Judge, Hiraoka and Chan, JJ.) Upon review of the record it appears that: 1. On April 16, 2020, the circuit court entered the order denying Petitioner-Appellant Francisco Alvarado, Jr.'s Hawai#i Rules of Penal Procedure (HRPP) Rule 40 Petition for Post-Conviction Relief that is the subject of this appeal; 2. The Notice of Appeal was mailed from Saguaro Correctional Center in Eloy, Arizona, and deemed filed on December 21, 2021, see Setala v. J.C. Penney, 97 Hawai#i 484, 40 P.3d 886 (2002); 3. Respondent-Appellee State of Hawai#i contested appellate jurisdiction on the grounds that Alvarado's notice of appeal was not filed within 30 days after entry of the order denying his HRPP Rule 40 Petition, as required by Hawai#i Rules of Appellate Procedure (HRAP) Rule 4(b)(1); 4. On July 6, 2020, this court issued an order to show cause about appellate jurisdiction (OSC); 5. Alvarado did not respond to the OSC and the deadline to respond (extended at Alvarado's request) has passed; NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER 6. The failure to file a timely notice of appeal is a jurisdictional defect that a court has no discretion to disregard. Bacon v. Karlin, 68 Haw. 648, 650, 727 P.2d 1127, 1129 (1986). Therefore, IT IS HEREBY ORDERED that this appeal is dismissed for lack of appellate jurisdiction. IT IS HEREBY FURTHER ORDERED that no further action will be taken on the July 6, 2022 Order to Show Cause. DATED: Honolulu, Hawai#i, October 21, 2022. /s/ Katherine G. Leonard Presiding Judge /s/ Keith K. Hiraoka Associate Judge /s/ Derrick H.M. Chan Associate Judge 2

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