State v. Hernane., 454 P.3d 385

In May 2011 Hernane was indicted for second‑degree murder; he was convicted in 2013, and the ICA vacated the conviction and ordered a new trial in 2015–2016.
This Court denied certiorari on March 23, 2016, triggering the 180‑day speedy‑trial clock under HRPP Rule 48.
At the time certiorari was denied, Hernane was housed in an Arizona prison but in Hawai‘i State custody; the prosecutor’s office requested DPS to return him, and he was not returned to Hawai‘i until July 19, 2016.
The State and trial court treated the mainland custody period as excludable under HRPP Rule 48(c)(5) (unavailability); trial was eventually held in Feb. 2018, and Hernane moved to dismiss under Rule 48 for exceeding 180 days.
The circuit court and ICA denied the Rule 48 motion, finding the State had exercised due diligence; the Hawai‘i Supreme Court reversed, holding time in out‑of‑state State custody is not excludable under HRPP 48(c)(5), vacating the convictions and remanding.

Issue	State's Argument	Hernane's Argument	Held
Whether time a defendant remains in mainland prison while in Hawai‘i State custody is excludable under HRPP Rule 48(c)(5) ("absence or unavailability of the defendant").	Time was excludable because the defendant's return could not be accomplished immediately and the prosecutor made timely requests to DPS; Jackson permits exclusion when the State used due diligence.	Not excludable: Hernane remained in Hawai‘i State custody (DPS control), did not resist return, and the State failed to promptly secure his transport — so the unavailability exclusion does not apply.	Court held the mainland custody period was not excludable under HRPP 48(c)(5); the State is responsible for transporting a detainee in its custody, and the delay required dismissal under Rule 48.

State v. Jackson, 8 Haw. App. 624, 817 P.2d 130 (Haw. App. 1991) (adopted federal Speedy Trial Act definition of "unavailability" and applied due‑diligence inquiry)
State v. Willoughby, 83 Haw. 496, 927 P.2d 1379 (Haw. App. 1996) (found extended delay excludable where defendant's whereabouts were unknown)
State v. Choy Foo, [citation="142 Hawai'i 65, 414 P.3d 117"] (Haw. 2018) (standard of review for HRPP Rule 48 motions)
State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (Haw. 1981) (factors for dismissing with or without prejudice under speedy‑trial rule)
Mainwaring v. State, 11 So. 3d 986 (Fla. Dist. Ct. App. 2009) (charging county's knowledge that defendant is incarcerated elsewhere generally means defendant is not "unavailable")