State v. Bohannon8/21/2003
ropriate circumstances, is "treated as the functional equivalent of an order compelling discovery"); LeMay v. Leander, 92 Hawaii 614, 623, 994 P.2d 546, 555 (2000) (concluding that a violation of an injunction, by definition, is the functional equivalent of contempt); Casumpang v. ILWU, Local 142, 91 Hawaii 425, 427, 984 P.2d 1251, 1253 (1999) (" n order that fully disposes of an action in the district court may be final and appealable without the entry of judgment on a separate document, as long as the appealed order ends the litigation by fully deciding the rights and liabilities of all parties and leaves nothing further to be adjudicated." (Emphasis added.)); State v. Miyashiro, 90 Hawaii 489, 492, 979 P.2d 85, 88 (App. 1999) (determining that a court's response to a jury communication is the functional equivalent of an instruction).
In light of the parallel purpose served by the notation procedure, an order may be deemed "entered" and, thus, "filed" in the district court for the purpose of HRAP Rule 4(b)(3), when the clerk notes the order on the court calendar. Thus, the requirements of HRAP 4(b)(3) are not ignored, but the entry of an order by the clerk on the court calendar is treated as the functional equivalent of the filing of such an order, on the rationale discussed above.
In light of the foregoing, and under the conditions prevalent in the district court, the notation procedure is the method that maintains simplicity, avoids unjustifiable delay and expense, and promotes "fairness in administration." HRPP Rule 2.
V.
A.
With all due respect, I do not find the majority's position persuasive. The majority states that "HRAP Rule 4(b) . . . requires that a final and appealable judgment or order in criminal cases be in written form." Majority opinion at 14 (citing State v. Ho, 7 Haw. App. 516-19, 782 P.2d 29, 31 (1989), overruled on other grounds by, State v. Hoey, 77 Hawaii 17, 30, 881 P.2d 504, 516 (1994)) (emphasis added). The Ho case dealt not with a "final and appealable judgment," but with the issue of "whether the 108-day delay occasioned by the State's interlocutory appeal from the lower court's oral suppression order is excludable under . . . [HRPP R]ule ." Ho, 7 Haw. App. at 518, 782 P.2d at 30 (emphasis added) (footnote omitted). Second, HRAP Rule 4(b) does not in any way state that the order entered and appealed from must be in a separate document as the majority holds. Third, here, the clerk made a notation on the court calendar, which is in "written" form pursuant to the court's order and, as such, was tantamount to the filing of such an order in satisfaction of HRAP Rule 4(b)(3).
B.
The majority notes that HRPP Rule 44(b)(1) "was in effect on July 17, 2000, the time at which the district court announced its oral order denying the prosecution's motion for reconsideration[.]" Majority opinion at 15. HRPP Rule 44(b)(1) would apply to all orders entered by the district court after the rule's effective date of July 1, 2000. HRPP 44(b)(1) states as follows: "After the decision or ruling of the court following a hearing on a motion, the clerk shall note the decision or ruling on the calendar. The notation of the decision or ruling on the calendar shall constitute the order and entry thereof." (Emphasis added.) Thus, if the order granting the motion to suppress in the present case was issued subsequent to the effective date of HRPP Rule 44(b)(1), that rule would control.
Given a plain reading of Rule 44(b)(1), the time for appeal would begin to run upon the clerk's notation on the court calendar. Such notation under the rule constituted not only the order, but the "entry thereof." It would make no se
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