WAILUKU — In another case affected by a state Supreme Court ruling last month, a complaint was dismissed against a Molokai man who was charged with second-degree murder in the shooting of his girlfriend nine years ago.

Second Circuit Judge Peter Cahill granted the dismissal without prejudice Thursday, giving the prosecution a Jan. 27 deadline to recharge Marlin Lavoie, 42.

Until then, he continues to be held without bail at the Maui Community Correctional Center.

Lavoie was arrested shortly after using a rifle to shoot 24-year-old Malia Kahalewai, the mother of his four children, on March 20, 2013, in front of several of her friends at a friend’s house where she was staying. After testimony at a preliminary hearing April 5, 2013, in District Court, a judge found probable cause to support charges of second-degree murder, using a firearm in the commission of a separate felony, being a felon in possession of a firearm and keeping a loaded firearm in an improper place.

The case went to 2nd Circuit Court and Lavoie was found guilty as charged in a jury trial in 2015. He was sentenced to life in prison with the possibility of parole plus 20 years before the state Supreme Court overturned the convictions in November 2019 and sent the case back for a new trial.

On May 9, Lavoie pleaded guilty to a reduced charge of manslaughter, as well as using a firearm in the commission of a felony and being a felon in possession of a firearm.

Lavoie was set to be sentenced next month before his attorney, Megan Kau, filed a motion to dismiss the case based on a Hawaii Supreme Court opinion Sept. 8 in the case of Richard Obrero, who was arrested in 2019 after allegedly shooting a 16-year-old boy outside the defendant’s home in Kalihi on Oahu.

After a grand jury found there wasn’t probable cause to indict Obrero, the prosecution filed a complaint and presented evidence at a preliminary hearing where a judge found probable cause to support charges of second-degree murder, attempted first- and second-degree murder and using a firearm in the commission of a felony against Obrero.

In appealing, Obrero argued that by using the complaint and preliminary hearing process, the prosecution violated state law requiring an indictment or information filing before a defendant can be arraigned in Circuit Court. In a 3-2 decision, the Supreme Court agreed.

Before the opinion was handed down, prosecutors in the state had been using preliminary hearings as one way of charging defendants for 40 years.

Appearing by videoconference Thursday in 2nd Circuit Court, Kau said she believed she had to file the motion in Lavoie’s case “to protect the record” because Lavoie wasn’t charged by indictment.

Deputy Prosecutor J.W. Hupp agreed that dismissal of the case was required. He asked that the dismissal be without prejudice and that Lavoie be held so the prosecution could recharge him. Hupp said the prosecution planned to seek a grand jury indictment of Lavoie as early as today.

In Maui County, Prosecuting Attorney Andrew Martin has said about 50 cases have been affected by the Supreme Court ruling.

* Lila Fujimoto can be reached at lfujimoto@mauinews.com.