State v. Jess

Dissenting Opinion by

ACOBA, J.

I respectfully dissent.

*419First, this proceeding should be dismissed and the ease remanded. The order of the United States District Court (district court) has already directed that the court must comply with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),1 that is, that if Plaintiff-Appellant State of Hawai'i (the prosecution) seeks an extended term, then Defendant-Appellee Brian Jess (Jess) must be afforded the option of a jury tidal on the sentencing facts. Additionally, that he is entitled to one is already settled in this…