§641-13  By State in criminal cases.  An appeal may be taken by and on behalf of the State from the district or circuit courts to the intermediate appellate court, subject to chapter 602, in all criminal matters, in the following instances:

     (1)  From an order or judgment quashing, setting aside, or sustaining a motion to dismiss any indictment, information, or complaint or any count thereof;

     (2)  From an order or judgment sustaining a special plea in bar or dismissing the case where the defendant has not been put in jeopardy;

     (3)  From an order granting a new trial;

     (4)  From an order arresting judgment;

     (5)  From a ruling on a question of law adverse to the State, where the defendant was convicted and appeals from the judgment;

     (6)  From the sentence, on the ground that it is illegal;

     (7)  From a pretrial order granting a motion for the suppression of evidence, including a confession or admission, or the return of property, in which case the appellate court shall give priority to the appeal and the order shall be stayed pending the outcome of the appeal;

     (8)  From an order denying a request by the State for protective order for nondisclosure of witness for reason of personal safety under rule 16(e)(4) of the Hawaii rules of penal procedure, in which case the appellate court shall give priority to the appeal and the order shall be stayed pending outcome of the appeal;

     (9)  From a judgment of acquittal following a jury verdict of guilty; and

    (10)  From a denial of an application for an order of approval or authorization of the interception of a wire, oral, or electronic communication pursuant to section 803‑44. [L 1911, c 40, §1; RL 1925, §2522; am L 1931, c 37, §2; RL 1935, §3551; RL 1945, §9552; RL 1955, §212-2; HRS §641-12; am L 1972, c 148, §1; ren HRS §641-13; am L 1977, c 146, §1; am L 1979, c 111, §6(4); am L 1982, c 81, §1; am L 1987, c 84, §1; am L 2004, c 62, §2 and c 202, §70; am L 2006, c 94, §1 and c 200, §3; am L 2010, c 109, §1]


Rules of Court


Appeals, when taken, see HRAP rule 4.


Case Notes


  Remand after reversal of ruling sustaining demurrer.  23 H. 409 (1916).

  Special plea in bar, sustaining of, what constitutes.  25 H. 55 (1919); 47 H. 361, 389 P.2d 439 (1964).  See 39 H. 522 (1952).

  No appeal by State from ruling on question of law unless defendant convicted and appeals.  34 H. 662 (1938).

  Oral ruling of district magistrate constitutes an order within the meaning of this section.  41 H. 591 (1957).

  No right to review after acquittal of accused by verdict of jury.  42 H. 102 (1957).

  Appeal by State from oral order of circuit court dismissing indictment is nugatory.  45 H. 501, 370 P.2d 480 (1962).

  Pretrial order to suppress evidence; "special plea in bar" construed.  50 H. 525, 445 P.2d 36 (1968).

  When State appeals from the quashing of an indictment, defendant is still subject to original requirements of bail.  53 H. 76, 488 P.2d 329 (1971).

  Conditional discharge of defendant under §712-1255 is not a final disposition of the case appealable by the State.  60 H. 576, 592 P.2d 832 (1979).

  Stipulation for joint hearing on motion to suppress and trial on merits is not a waiver by State of its right to appeal from ruling on motion to suppress.  62 H. 44, 609 P.2d 131 (1980).

  Under circumstances, jeopardy did not attach even though jury was sworn.  64 H. 395, 641 P.2d 1338 (1982).

  Jeopardy did not attach where case dismissed after defendant arraigned but before State's first witness sworn.  68 H. 238, 709 P.2d 607 (1985).

  State could appeal only under paragraph (2) where case dismissed after all evidence taken.  68 H. 653, 729 P.2d 385 (1986).

  Deferred acceptance of guilty and deferred acceptance of no contest pleas are not appealable.  69 H. 438, 746 P.2d 568 (1987).

  Authorizes appellate jurisdiction to review orders granting pretrial motions to suppress.  70 H. 206, 767 P.2d 1238 (1989).

  Language does not allow an appeal from a sentence on the ground that the sentence was imposed in an illegal manner, but allows an appeal from an illegal sentence.  71 H. 624, 801 P.2d 558 (1990).

  State's right to appeal in criminal cases is limited to instances stated in section; section does not give State right to appeal from granting of deferred acceptance of guilty or deferred acceptance of no contest pleas.  74 H. 75, 837 P.2d 776 (1992).

  While it is necessary for "entire case" to be dismissed for paragraph (2) to apply, there is nothing in the language of this section to indicate that this would prevent paragraph (1) from applying; prosecution not barred from bringing appeal of dismissal of counts of indictment, where counts dismissed after trial began because counts did not include essential elements of offenses charged.  78 H. 373, 894 P.2d 70 (1995).

  In a jury trial, issues decided by the judge are "questions of law" appealable under this section, while issues decided by the jury are "questions of fact" and are not appealable.  85 H. 462, 946 P.2d 32 (1997).

  As defendant's "motion to dismiss" following a jury verdict of guilty deemed post-verdict motion for judgment of acquittal following a jury verdict of guilty pursuant to HRPP rule 29(c), paragraph (9) authorized prosecution to assert appeal from this judgment of acquittal; thus, supreme court had appellate jurisdiction over appeal.  87 H. 108, 952 P.2d 865 (1997).

  Double jeopardy clauses not violated by prosecution's appeal from judgment of acquittal following jury's verdict of guilty pursuant to paragraph (9).  87 H. 108, 952 P.2d 865 (1997).

  Paragraph (1) permits prosecution to appeal from both dismissals with prejudice and without prejudice.  87 H. 260, 953 P.2d 1358 (1998).

  Where trial court's order was an order of dismissal and not a judgment of acquittal, order was appealable under paragraph (1).  97 H. 505, 40 P.3d 907 (2002).

  Paragraph (7) authorizes the prosecution to appeal orders suppressing evidence as illegally obtained, the intent of the statute being to facilitate the administration of justice in criminal cases by allowing the prosecution to obtain a conclusive ruling on issues involving searches, seizures, and confessions via direct appeal.  104 H. 224, 87 P.3d 893 (2004).

  The language of paragraph (7), which allows the prosecution to appeal from "a pretrial order granting a motion for the suppression of evidence", includes within its scope the right to appeal from a trial court’s voluntariness determination mandated by §621-26.  104 H. 224, 87 P.3d 893 (2004).

  As district family court proceedings under §571-11(1) concerning juvenile law violators are considered to be noncriminal proceedings, prosecution's appeal of family court order was not authorized by paragraph (7).  104 H. 403, 91 P.3d 485 (2004).

  As the prosecution was not authorized to appeal the judge's pretrial discovery order under this section, the prosecution, as mandamus petitioner, would have been without a remedy unless extraordinary relief was granted; where trial judge did not exceed judge's authority under HRPP rule 16(d) by ordering the disclosure of the information on the laser unit calibration distances and locations in prosecution of defendant for speeding, petition for writ of mandamus was denied.  116 H. 23, 169 P.3d 975 (2007).

  Where the case was a criminal matter filed by plaintiff State of Hawaii against defendant and the police department (HPD) was not a party to the case, HPD, as a nonparty, was not authorized to appeal the respondent judge's order denying HPD's motion to quash defendant's subpoena duces tecum pursuant to §641-11 if judgment was entered against defendant; HPD was also not authorized to appeal the order pursuant to the interlocutory appeal statute for defendants, §641-17, or the appeal statute for the prosecution under this section; thus, having no remedy by way of appeal, HPD properly sought redress from the order by mandamus.  122 H. 204, 225 P.3d 646 (2010).

  Deferred acceptance of no contest plea not appealable until no contest plea accepted.  5 H. App. 357, 692 P.2d 1171 (1984).

  Section is to be strictly construed.  7 H. App. 516, 782 P.2d 29 (1989).

  Paragraph (9) did not preclude appellate court's jurisdiction over State's appeal where trial court's judgment of acquittal was "in form only and not in substance"; trial court made no factual determination as to some or all of the elements charged, but grounded its ruling on the conclusion that the charges were defective as a matter of law.  88 H. 477 (App.), 967 P.2d 674 (1998).

  Cited:  37 H. 601, 603 (1947); 48 H. 247, 256, 397 P.2d 575 (1964).