State v. Elaban
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*** NOT FOR PUBLICATION *** NO. 26449 IN THE SUPREME COURT OF THE STATE OF HAWAI#I STATE OF HAWAI#I, Plaintiff-Appellee vs. DEREK ALLAN ELABAN, Defendant-Appellant APPEAL FROM THE SECOND CIRCUIT COURT (CR. NO. 02-1-0406) ORDER DISMISSING APPEAL (By: Moon, C.J., Levinson, Nakayama, and Duffy, JJ. and Acoba, J., dissenting) Upon review of defendant-appellant s statement of jurisdiction and the record, it appears that an order dismissing an indictment without prejudice is appealable by the prosecution pursuant to HRS § 641-13(1), but such an order is not appealable by a defendant because HRS § 641-11 authorizes a defendant in a circuit court criminal case to appeal only from a judgment of conviction. Defendant-appellant s appeal of the February 20, 2004 order dismissing the indictment without prejudice is not authorized by HRS § 641-11. appeal. Thus, we lack jurisdiction over this See Grattafiori v. State, 79 Hawai#i 10, 13, 897 P.2d 937, 940 (1995)("The right of appeal in a criminal case is purely statutory and exists only when given by some constitutional or statutory provision."). Therefore, *** NOT FOR PUBLICATION *** IT IS HEREBY ORDERED that: (1) this appeal is dismissed for lack of appellate jurisdiction and (2) the "motion to reverse" the February 20, 2004 order is dismissed. DATED: Honolulu, Hawai#i, June 10, 2004. I disagree with the dismissal and would allow the appeal.
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