Briones v. State

CONCURRING OPINION OF

LEVINSON, J.,

WITH WHOM

MOON, J., JOINS

I concur in the result reached by the majority opinion inasmuch as it is apparent that State v. Briones, 71 Haw. *47086, 784 P.2d 860 (1989) (Briones I), was incorrectly decided, precisely because this court “took it upon itself to decide which count the jury would have convicted on if properly instructed.” Majority opinion at 452. In good conscience, however, I cannot lay this court’s mistake at the feet of the petitioner’s appellate counsel, and I believe that it is unfair to do so. The petition in this case presents nothing new; the…