[DOWNLOAD] "Whitby v. State" by In the Supreme Court of the State of Hawaii # eBook PDF Kindle ePub Free

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eBook details

• Title: Whitby v. State
• Author : In the Supreme Court of the State of Hawaii
• Release Date : January 18, 2004
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 54 KB

Description

The petitioner-appellant/defendant-appellant Bryant Whitby, Jr. appeals from the findings of fact (FOFs), conclusions of law (COLs), and order of the circuit court of the second circuit, the Honorable Shackley F. Raffetto presiding, filed on May 16, 2000, summarily denying the petition for post-conviction relief, pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 40 (2000) [hereinafter, "Rule 40 petition"] and from the order of the second circuit court, the Honorable Shackley F. Raffetto also presiding, filed on November 13, 2000, denying Whitbys motion for correction of illegal sentence, pursuant to HRPP Rule 35 (2000) [hereinafter, "Rule 35 motion"]. On appeal, Whitby contends: (1) that the trial court committed plain error by submitting erroneous and misleading instructions to the jury; (2) that the circuit court erred in entering an order denying his Rule 40 petition, inasmuch as (a) he was denied effective assistance of counsel at trial, on appeal, and during special proceedings, in violation of his rights under article I, section 14 of the Hawaii State Constitution and the sixth amendment to the United States Constitution, and that his claims on appeal were not waived, pursuant to this courts decision in Briones v. State, 74 Haw. 442, 462, 848 P.2d 966, 986 (1993), because "no realistic opportunity existed to raise the issue on direct appeal" and (b) the circuit court, at the hearing on the motion for reduction of sentence, erred in failing to sua sponte hold a re-sentencing hearing subsequent to this courts summary disposition order (SDO) in State v. Bryant Whitby, No. 20457, which vacated thirty-six of forty-one counts against him, because this courts SDO "essentially nullified" the basis for the sentencing courts imposition of an extended term sentence; and (3) that the circuit court erred in entering an order denying his Rule 35 motion, inasmuch as the sentencing court (a) failed to make the requisite findings necessary to impose upon him an extended life term sentence and (b) erred when it enhanced his sentence based upon aggravating factors not established by the evidence, namely, (i) the thirty-six counts later vacated by this court, (ii) the "handicapped status" of the complainant, and (iii) possible prior conduct.

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