State v. Souza
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*** NOT FOR PUBLICATION *** NO. 25927 IN THE SUPREME COURT OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Plaintiff-Appellant, vs. LOUIS JOSEPH SOUZA, JR., Defendant-Appellee. APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CR. NO. 02-1-2685) (By: SUMMARY DISPOSITION ORDER Moon, C.J., Levinson, Nakayama, Acoba, and Duffy JJ.) The plaintiff-appellant State of Hawai#i [hereinafter, the prosecution ] appeals from the judgment of the first circuit court, the Honorable Wilfred K. Watanabe presiding, filed on May 7, 2003, convicting the defendant-appellee Louis Joseph Souza, Jr. of and sentencing him for the offenses of promoting a dangerous drug in the third degree, in violation of Hawai#i Revised Statutes (HRS) § 712-1243 (1993 & Supp. 2002) (Count I), and promoting a detrimental drug in the third degree, in violation of HRS § 712-1249 (1993) (Count II). The prosecution s sole contention on appeal is that the circuit court erred in sentencing Souza pursuant to HRS § 706-622.5 (Supp. 2002) and that the circuit court should have sentenced him in accordance with HRS § 706-606.5 (1993 & Supp. 2002). Upon carefully reviewing the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve the prosecution s appeal as follows: *** NOT FOR PUBLICATION *** This court s decision in State v. Smith, 103 Hawai#i 228, 81 P.3d 408 (2003), is entirely dispositive of the present matter. Id. at 234, 81 P.3d at 414 (holding that in all cases in which HRS § 706-606.5 is applicable, including those in which a defendant would otherwise be eligible for probation under HRS § 706-622.5, the circuit courts must sentence defendants pursuant to the provisions of HRS § 706-606.5 ). Thus, given the plain and unambiguous ruling of this court in Smith, the circuit court erred in sentencing Souza pursuant to HRS § 706-622.5 instead of applying HRS § 706-606.5. Therefore, IT IS HEREBY ORDERED that the portion of the circuit court s judgment sentencing Souza pursuant to HRS § 706-622.5 is vacated, and we remand this matter to the circuit court for resentencing in accordance with the provisions of HRS § 706606.5. DATED: Honolulu, Hawai#i, February 17, 2004. On the briefs: Donn Fudo, deputy prosecuting attorney, for plaintiff-appellant Steven Nichols, deputy public defender, for defendant-appellant 2
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