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IN THE SUPREME COURT OF THE STATE OF HAWAI‘I 

---o0o--- 

STATE OF HAWAI‘I, 

Plaintiff-Appellee/Cross-Appellant, 

vs. 

DAVID JOHN MICHAELEDES, 

Defendant-Appellant/Cross-Appellee. 

SCAP-21-0000562 

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT 

(CAAP-21-0000562 and CAAP-21-0000569; CASE NO. 5CPC-21-0000174) 

MARCH 3, 2023 

RECKTENWALD, C.J., NAKAYAMA, McKENNA, WILSON, AND EDDINS, JJ. 

OPINION OF THE COURT BY RECKTENWALD, C.J. 

I. INTRODUCTION 

David John Michaeledes was charged with several counts 

arising from an alleged hit and run. The Circuit Court of the 

Fifth Circuit dismissed the charging document as insufficient. 

The State appealed to the Intermediate Court of Appeals (“ICA”) 

and simultaneously recharged Michaeledes via a second “Felony 

Electronically Filed

Supreme Court

SCAP-21-0000562

03-MAR-2023

08:13 AM

Dkt. 7 OP
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Information and Non-Felony Complaint,” which attempted to 

correct the inadequacies in the first charging document 

identified by the circuit court. The circuit court dismissed 

the second charging document for lack of jurisdiction while the 

first charging document remained pending on appeal before the 

ICA. We hold that the filing of the notice of appeal in the 

first case did not divest the circuit court of jurisdiction over 

the second case recharging Michaeledes for the same criminal 

conduct.

II. BACKGROUND

On December 28, 2020, Michaeledes was charged in Case 

No. 5CPC-20-0000283 via “Felony Information and Non-Felony 

Complaint” with three criminal counts for Reckless Driving of 

Vehicle, Hawai‘i Revised Statutes (“HRS”) § 291-2 (2020); Assault 

in the Second Degree, HRS § 707-711(1)(a) and/or (d) (2014); and 

Accidents Involving Substantial Bodily Injury, HRS § 291C-12.5 

(2020). Michaeledes moved to dismiss the charges, arguing the 

charging language was fatally insufficient. The State 

subsequently moved to amend its original “Felony Information and 

Non-Felony Complaint” and Michaeledes opposed that motion, 

arguing that a felony information may not be amended over a 

defendant’s objection under Hawaiʻi Rules of Penal Procedure 
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(HRPP) Rule 7(f)(1) (2018)1 and HRS § 806-9 (2014).2 The circuit 

court agreed with Michaeledes and, on August 10, 2021, entered 

written orders denying the State leave to amend and granting 

Michaeledes’s motion to dismiss without prejudice.3 On August 

17, 2021, the State appealed the circuit court’s August 10 

orders.4 

Shortly thereafter, on August 31, 2021, the State

recharged Michaeledes in Case No. 5CPC-21-0000174 by way of a 

second “Felony Information and Non-Felony Complaint,” this time 

alleging statutory definitions and elements omitted in the first

“Felony Information and Non-Felony Complaint.” The counts in

1 HRPP Rule 7(f)(1) provides: “The court may permit a charge other 

than an indictment to be amended at any time before trial commences if 

substantial rights of the defendant are not prejudiced.”

2 HRS § 806-9 provides:

All provisions of law applying to prosecutions upon 

indictments, to writs and process therein, and the issuing 

and service thereof, to motions, pleadings, trials, and 

punishments, or the passing or execution of any sentence, 

and to all proceedings in cases of indictment, whether in 

the court of original or appellate jurisdiction, shall in 

the same manner and to the same extent as near as may be, 

apply to information and all prosecutions and proceedings 

thereon.

3 The Honorable Randal G.B. Valenciano presided.

4 In its appeal of the dismissal of the first “Felony Information 

and Non-Felony Complaint,” the State raises three arguments: (1) the Reckless 

Driving charge was not defective for failing to allege Michaeledes operated a 

vehicle on a public highway; (2) as a matter of law, a felony information may 

be amended to allege statutory definitions or essential elements; and (3) the 

circuit court abused its discretion by dismissing the case. This appeal, 

which arises from the first “Felony Information and Non-Felony Complaint,”

was docketed as CAAP-21-0000466. This appeal is not currently before this 

court, and therefore we do not address the merits.
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the first “Felony Information and Non-Felony Complaint” 

(hereinafter, the “first charging document”) are the same as 

those alleged in the second “Felony Information and Non-Felony 

Complaint” (hereinafter, the “second charging document”).

Michaeledes moved to dismiss the second charging 

document for lack of jurisdiction under State v. Ontiveros, 82 

Hawai‘i 446, 923 P.2d 388 (1996), since the appeal of the first 

charging document was pending before the ICA. On September 20, 

2021, the circuit court agreed with Michaeledes and orally 

dismissed the second charging document, this time for lack of 

jurisdiction.5 The State moved to reopen the hearing to clarify 

whether the dismissal was with or without prejudice. On 

September 30, 2021, the circuit court held a hearing on the 

State’s Motion to Reopen Hearing at which Michaeledes was not 

present. 

On October 1, 2021, the circuit court entered a 

written order reopening the September 20, 2021 hearing on 

Michaeledes’s Motion to Dismiss for Lack of Jurisdiction and 

clarified that its dismissal of the second charging document was 

without prejudice.6 On October 7, 2021, the circuit court then 

5 The Honorable Randal G.B. Valenciano presided.

6 In its October 1 order, the circuit court explained it “intended 

that said dismissal would be WITHOUT prejudice” and “clarifie[d] that the 

Felony Information and Non-Felony Complaint filed in the above-captioned case 

is dismissed without prejudice.” 

(continued . . .)
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entered a written order dismissing the second charging document.7

Michaeledes appealed the October 1 order, arguing the complaint 

should be dismissed with prejudice. The State appealed the 

October 7 order, arguing Ontiveros did not divest the circuit 

court of jurisdiction to proceed against Michaeledes on the 

second charging document. The appeals of the October 1 and 

October 7 orders, both arising from the second charging 

document, were subsequently consolidated and are now before this 

court.8 

III. STANDARDS OF REVIEW 

A. Jurisdiction

Whether the circuit court had jurisdiction is reviewed 

under the right/wrong standard. Ontiveros, 82 Hawai‘i at 448, 

923 P.2d at 390. 

B. Questions of Law 

“We review questions of law under the right/wrong 

standard.” State v. Hernandez, 143 Hawai‘i 501, 507, 431 P.3d 

(continued . . .) 

7 In its October 7 order, the circuit court explained in a footnote 

that during the September 30 hearing, it had orally granted the Stateʻs 

Motion to Reopen Hearing and “clarified the order of dismissal was without 

prejudice.”

8 Michaeledes’s appeal arising from the October 1 order was

docketed as CAAP-21-0000562. The State’s appeal arising from the October 7 

order was docketed as CAAP-21-0000569. The consolidated appeals were 

docketed as CAAP-21-0000562. 
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1274, 1280 (2018) (citing State v. Gomez-Lobato, 130 Hawai‘i 465, 

469, 312 P.3d 897, 901 (2013)). 

C. Interpretation of Court Rules 

“‘When interpreting rules promulgated by the court, 

principles of statutory construction apply.’” State v. 

Thompson, 150 Hawai‘i 262, 266, 500 P.3d 447, 451 (2021) (quoting 

State v. Baron, 80 Hawai‘i 107, 113, 905 P.2d 613, 619 (1995)). 

“The interpretation of a statute is a question of law which this 

court reviews de novo.” Id. (citing State v. Ruggiero, 114 

Hawai‘i 227, 231, 160 P.3d 703, 707 (2007)). 

IV. DISCUSSION 

In its appeal of the October 7 order, the State argues 

that the notice of appeal arising from the first charging 

document did not divest the circuit court of jurisdiction over 

the second case that was based on the second charging document. 

In his appeal of the October 1 order, Michaeledes 

argues: (1) the circuit court erred when it granted the State’s 

Motion to Reopen Hearing because the rule of lenity requires 

otherwise; (2) even if the circuit court could reopen the 

hearing, the circuit court failed to articulate its reasoning 

for dismissing the case without prejudice; and (3) the circuit 

court violated Michaeledes’s rights under HRPP Rule 43 (2018) by 

hearing and ruling on the State’s Motion to Reopen Hearing 

despite him not being present. 
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We address each argument in turn. 

A. The Notice of Appeal Divested the Circuit Court Only of 

Jurisdiction over the Appealed Case 

We first turn to the single point of error raised on 

appeal raised by the State. At issue is whether the State is 

barred from prosecuting Michaeledes under a second charging 

document alleging identical counts, while the State’s appeal of 

the dismissal of the first charging document is pending before 

the ICA. Michaeledes argues that, under Ontiveros, the circuit 

court properly dismissed the second charging document for lack 

of jurisdiction. The State counters that Ontiveros does not 

apply because a “notice of appeal divests the trial court of 

jurisdiction over the appealed case,” and thus a pending appeal 

does not bar the State from re-charging Michaeledes in a second, 

separate case. 82 Hawaiʻi at 448-49, 923 P.2d at 390-91 

(emphasis added) (quoting Richardson v. Sport Shinko (Waikiki 

Corp.), 76 Hawaiʻi 494, 500, 880 P.2d 169, 175 (1994)). We 

agree. 

We take this opportunity to clarify that the notice of 

appeal divested the circuit court only of jurisdiction over the 

appealed case and not the subsequent case, which was based on a 

distinct charging document. 
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1. The State’s appeal in the first case did not divest 

the circuit court of jurisdiction over the second case 

recharging Michaeledes with the same criminal conduct 

Our decisions in Ontiveros and Kalani inform our 

reasoning here. In Ontiveros, we explained “[t]he general rule 

is that the filing of a notice of appeal divests the trial court 

of jurisdiction over the appealed case.” Id. (emphasis added). 

Michaeledes argues the general rule in Ontiveros should govern 

here, and that we should hold the circuit court was divested of 

jurisdiction over the refiled case. We disagree. Because 

recharging the defendant does not revive the original case, but 

instead initiates a new case, the appeal of the first case does 

not divest the trial court of jurisdiction over the second case. 

See State v. Kalani, 87 Hawai‘i 260, 262, 953 P.2d 1358, 1360 

(1998). Ontiveros only “divests the trial court of jurisdiction 

over the appealed case.” 82 Hawai‘i at 448-49, 923 P.2d at 390-

91 (emphasis added). 

In Ontiveros, the defendant was charged with multiple 

counts arising from his failure to stop at a red light while 

driving under the influence (DUI). Id. at 447, 923 P.2d at 389. 

The defendant moved to dismiss, alleging double jeopardy because 

he was already subject to an administrative driver’s license 

revocation as a result of his conduct, and the district court 

denied the motion. Id. During a recess immediately following 

the district court’s denial, the defendant filed a notice of 
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appeal to this court of the ruling denying his motion to dismiss 

under HRS § 641-17 (1993),9 arguing lack of jurisdiction. Id. at 

447-48, 923 P.2d at 389-90. When court reconvened and the 

defendant notified the district court of his appeal, the 

district court “concluded that the notice of appeal was a 

nullity” because the supreme court lacked jurisdiction over 

interlocutory appeals from district courts. Id. The district 

court subsequently convicted the defendant on the DUI charges. 

Id. at 448, 923 P.2d at 390. 

We held that because the denial of a motion to dismiss 

is not immediately appealable, the notice of appeal was 

jurisdictionally defective and therefore did not divest the 

trial court of jurisdiction. Id. at 451-52, 923 P.2d at 393-94. 

Thus, the district court had jurisdiction when it entered 

9 HRS § 641-17, which allowed direct appeals of criminal matters 

from the circuit court to the supreme court, provided in relevant part:

Interlocutory appeals from circuit courts, criminal 

matters. Upon application made within the time provided by 

the rules of the supreme court, an appeal in a criminal 

matter may be allowed to a defendant from the circuit court

to the supreme court, subject to chapter 602, from a 

decision denying a motion to dismiss or from other 

interlocutory orders, decisions, or judgments, whenever the 

judge in the judge’s discretion may think the same 

advisable for a more speedy termination of the case. The 

refusal of the judge to allow an interlocutory appeal to 

the appellate court shall not be reviewable by any other 

court.

(Emphasis added). 

HRS § 641-17 was amended in 2004 to direct appeals to the ICA in 

the first instance. 2004 Haw. Sess. Laws Act 202, § 71 at 945.
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judgment against the defendant and convicted him on the DUI 

charge. Id. 

In Kalani, the defendants were charged with assault in 

the second degree for allegedly beating their child. 87 Hawai‘i 

at 260, 953 P.2d at 1358. When the circuit court granted the 

defendants’ oral motion to dismiss without prejudice, the State 

appealed the order to the ICA. Id. The ICA dismissed the 

State’s appeal for lack of appellate jurisdiction “because an 

order of dismissal without prejudice is not a final appealable 

order.” Id. 

We held that because an order granting a motion to 

dismiss terminates proceedings in the trial court, “an order 

granting a motion to dismiss is final.” Id. at 262, 593 P.2d at 

1360. Thus, the ICA improperly dismissed the appeal because it 

had appellate jurisdiction to review the order granting the 

motion to dismiss without prejudice. Id. We explained that 

regardless of whether a dismissal is with or without prejudice, 

it is a final order because refiling a new charging document 

does not “revive the original case,” instead it “initiates a new 

case.” Id. 

Here, there is no dispute that the August 17, 2021 

notice of appeal divested the circuit court of jurisdiction over 

the first case arising from the first charging document. 
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Instead, Michaeledes contends our rule in Ontiveros also 

divested the circuit court of jurisdiction in the second case. 

We disagree because, as we explained in Kalani, 

“recharging [the defendant] does not revive the original case. 

Rather, recharging the defendant initiates a new case.” 87 

Hawai‘i at 262, 953 P.2d at 1360. The circuit court’s order 

dismissing the first case without prejudice was a final order 

terminating only that case. See id. (explaining that a 

“dismissal without prejudice is a final order” that “terminates 

the current case”). 

The second charging document alleging the same three 

counts initiated a second case, separate from the first case 

arising from the first charging document. Because the notice of 

appeal only divested the circuit court of jurisdiction over the 

first case on appeal, and because the second case is a new case, 

separate and distinct from the first, the circuit court has 

jurisdiction to hear the second case while the first case is 

pending appeal before the ICA.10

10 Other jurisdictions that have considered whether the State may 

initiate a second case based on the same underlying facts while the first 

case is on appeal have likewise found no jurisdictional barrier to the trial 

court considering the second case. In State v. Thayer, the Oregon Court of 

Appeals held:

We agree with the state. Certainly, filing the notice of 

appeal concerning the dismissal of the first information 

deprived the trial court - subject to exceptions not 

pertinent to this case - of jurisdiction to proceed with 

the prosecution of that case. State v. Stevens, 134 Or. 

(continued . . .)
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2. Allowing the first case and second case to proceed 

simultaneously promotes judicial efficiency without 

risk of confusion 

As we explained in TSA Int’l Ltd. v. Shimizu Corp., 

the general rule identified in Ontiveros “is designed to avoid 

the confusion and inefficiency that might flow from placing the 

same issue before two courts at the same time.” 92 Hawai‘i 243, 

265, 990 P.2d 713, 735 (1999) (citing 9 J. Moore, Moore’s 

Federal Practice ¶ 203.11 at 5-50 (2d ed. 1996)). 

Here, allowing the appeal of the first case to proceed 

concurrently with the second case is unlikely to result in 

confusion because the two cases raise distinct legal issues. 

(continued . . .) 

App. 1, 894 P.2d 1217 (1995). Nothing precluded the state 

from initiating a separate action by filing a second 

information, however. Defendant cites no authority for his 

contention that the state is precluded from doing just 

that; he merely complains that it presents the practical 

problem of requiring him to defend the dismissal of the 

case against him on two fronts. That may be so but such 

practical difficulties do not amount to a jurisdictional 

impediment.

974 P.2d 699, 701 (Or. Ct. App. 1999).

Similarly, in Brown v. State, the Georgia Court of Appeals also 

addressed whether the trial court could hear a case arising from a second 

indictment when the first was on appeal as procedurally defective. 745 

S.E.2d 699, 702 (Ga. Ct. App. 2013). The Georgia Court of Appeals concluded 

the trial court could, explaining:

The Second Indictment initiated a completely separate 

prosecution on the same charges, and no contention is 

raised that the Second Indictment suffered from the same 

infirmity as the First Indictment. Thus, the trial court’s 

acceptance of the Second Indictment had no effect on the 

issue of whether the First Indictment was valid, and the 

trial court thus had jurisdiction to consider the Second 

Indictment.

Id. (footnotes omitted).
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The appeal arising from the first charging document concerns the 

narrower issue of whether the State may amend a felony 

information and whether a Reckless Driving of Vehicle charge is 

defective for failing to allege a defendant operated a vehicle 

on a public highway. The second case arising from the second 

charging document more broadly concerns Michaeledes’s criminal 

liability. Because the appeal of the first case does not 

concern the merits of the underlying charged offenses, 

simultaneous or subsequent rulings in one of these cases are 

unlikely to invalidate or supersede the other. 

Similarly, allowing both cases to proceed will not 

result in undue inefficiency. Rather, requiring the appeal of 

the first case either be adjudicated or withdrawn prior to 

allowing the State to pursue its prosecution of Michaeledes 

would be less efficient than allowing the cases to proceed 

concurrently, especially since doing so does not “plac[e] the 

same issue before two courts at the same time.” Id. Allowing 

both cases to proceed simultaneously most efficiently provides a 

speedy determination of Michaeledes’s criminal liability while 

also allowing the State to pursue the legal issues presented in 

its appeal of the first case.11

11 We note, as the State argues, that jeopardy has not yet attached 

to either case and as such, Michaeledes would not be subject to double 

jeopardy by allowing both cases to proceed simultaneously. See State v. 

Moriwake, 65 Haw. 47, 51, 647 P.2d 705, 709 (1982) (determining that the 

(continued . . .)
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B. Michaeledes’s Points of Error Lack Merit 

On appeal, Michaeledes argues: (1) the circuit court 

erred when it granted the State’s Motion to Reopen Hearing 

because the rule of lenity requires otherwise; (2) even if the 

circuit court could reopen the hearing, the circuit court failed 

to articulate a basis for dismissing the case without prejudice; 

and (3) the circuit court violated Michaeledes’s rights under 

HRPP Rule 43 by hearing and ruling on the State’s Motion to 

Reopen Hearing despite him not being present. We address each 

argument in turn. 

First, Michaeledes argues that because the dismissal 

of the second case for lack of jurisdiction did not specify it 

was without prejudice, the rule of lenity requires it be 

construed as a dismissal with prejudice. This argument is 

without merit. The rule of lenity does not apply because the 

dismissal was for lack of jurisdiction and does not involve a 

question of statutory interpretation. See State v. Guyton, 135 

Hawaiʻi 372, 380, 351 P.3d 1138, 1146 (2015) (“This longstanding 

(continued . . .) 

“prohibition against double jeopardy is not implicated until jeopardy has 

‘attached’” (quoting Serfass v. United States, 420 U.S. 377, 388 (1975))). 

As we explained in State v. Quitog, “‘it is generally accepted that in jury 

trials, jeopardy attaches when the jury is empaneled and sworn[.]’” 85 

Hawai‘i 128, 141, 938 P.2d 559, 572 (1997) (alteration in original) (quoting 

State v. Baranco, 77 Hawai‘i 351, 355, 884 P.2d 729, 733 (1994)). Both in the 

first case arising from the first charging document and the second case 

arising from the second charging document, a jury has not been impaneled or 

sworn in.
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precept of statutory interpretation states that ‘[w]here a 

criminal statute is ambiguous . . . the statute must be strictly 

construed against the government and in favor of the accused.’” 

(emphasis added) (ellipses in original) (quoting State v. 

Shimabukuro, 100 Hawaiʻi 324, 327, 60 P.3d 274, 277 (2002)). 

Second, Michaeledes argues that the circuit court 

failed to articulate a basis for its order to dismiss without 

prejudice. Michaeledes relies on State v. Estencion, which 

requires trial courts to consider various factors and articulate 

written reasoning for dismissing a case with or without 

prejudice in the speedy trial context under HRPP Rule 48 (2018). 

63 Haw. 264, 268-69, 625 P.2d 1040, 1043-44 (1981). Estencion 

and its progeny are irrelevant because Michaeledes moved to 

dismiss for lack of jurisdiction under HRPP Rule 12(b)(1) 

(2018),12 not under HRPP Rule 48 for a speedy trial violation. 

Michaeledes cites no applicable authority for his contention 

that trial courts must provide a basis for dismissing a case 

without prejudice when that dismissal is for lack of 

jurisdiction. Even were Michaeledes to point to such an 

12 HRPP Rule 12(b)(1) provides:

(b) Pretrial Motions. Any defense, objection, or 

request which is capable of determination without the trial 

of the general issue may be raised before trial by motion. 

Motions may be written or oral at the discretion of the 

judge. The following must be raised prior to trial: 

(1) defenses and objections based on defects in the 

institution of the prosecution[.]
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authority, it does not appear that a dismissal with prejudice 

would be appropriate given the circumstances of this case 

because the jurisdictional defect was curable. Put another way, 

since the basis for the jurisdictional defect would be 

eliminated once the first appeal is resolved, it would make no 

sense to preclude the State from returning to court once that 

condition had been satisfied. 

Third, Michaeledes argues the circuit court violated 

his rights under HRPP Rule 4313 by hearing and ruling on the 

State’s Motion to Reopen Hearing despite Michaeledes’s absence. 

While HRPP Rule 43 requires the defendant “at pretrial 

evidentiary hearings” and “at every stage of the trial,” the 

13 HRPP Rule 43 provides in relevant part:

Rule 43. Presence of the Defendant.

(a) Presence required. The defendant shall be 

present at the arraignment, at the time of the plea, at 

evidentiary pretrial hearings, at every stage of the trial

including the impaneling of the jury and the return of the 

verdict, and at the imposition of sentence, except as 

otherwise provided by this Rule.

. . .

(c) Presence not required. A defendant need not be 

present either physically or by video conference if: 

(1) the defendant is a corporation and appears by 

counsel; or

(2) the proceeding is a conference or argument upon a 

question of law; or

(3) the proceeding is a reduction of sentence under 

Rule 35.

(Emphases added).
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defendant’s presence is not required if “the proceeding is a 

conference or argument upon a question of law,” as it was here.

V. CONCLUSION

For the foregoing reasons, the circuit court erred in 

dismissing Case No. 5CPC-21-0000174 for lack of jurisdiction. 

Accordingly, we reverse: (1) the circuit court’s October 1, 2021

order to the extent it dismissed the case for lack of 

jurisdiction; and (2) the circuit court’s October 7, 2021 order

dismissing the case for lack of jurisdiction. The case is 

remanded for further proceedings consistent with this opinion.

Rebecca Vogt Like /s/ Mark E. Recktenwald

Tracy J. Murakami

for Plaintiff-Appellee/ /s/ Paula A. Nakayama

Cross-Appellant 

/s/ Sabrina S. McKenna

Emmanuel G. Guerrero

for Defendant-Appellant/ /s/ Michael D. Wilson

Cross-Appellee

/s/ Todd W. Eddins