414 P.3d 178
Haw. Ct. App.2018Background
- On Aug 7, 2012, Officer Brian Silva observed Visintin running near a closed facility at 2:40 AM, saw him crouched in bushes, activated lights, ordered him out, and requested ID.
- Visintin produced a Montana license and a concealed weapons permit; he admitted to having a handgun and an officer safety pat-down revealed an unloaded .45, leading to arrest for ‘‘Place to Keep’’ and bail set at $10,000 (bond posted).
- At the scheduled initial court appearance (Sept 5, 2012) the court conducted a longstanding ‘‘calendar call’’ for cases without filed complaints, announced such defendants were free to go and that cash bail would be refunded and bonds discharged; Visintin did not appear and alleges he received no notice his bond was discharged; no dismissal document was filed.
- The State did not indict until Apr 25, 2013 (231 days after Sept 6, 2012); Visintin was later arrested in Montana, returned, pleaded no contest conditionally to Count 1, and was sentenced; he appealed.
- Visintin moved to dismiss under HRPP Rule 48 and on constitutional speedy-trial and excessive-bail grounds, and separately moved to suppress; trial court denied both motions orally (no written orders). The appellate court vacated the judgment and remanded for dismissal under HRPP Rule 48.
Issues
| Issue | Visintin's Argument | State's Argument | Held |
|---|---|---|---|
| HRPP Rule 48 (six-month speedy-trial rule) — whether the 231-day period after calendar call is charged to the State | Calendar-call did not constitute a dismissal; Rule 48 clock ran from arrest/bail (Aug 7) and the 231 days must be charged to the State, requiring dismissal | Calendar-call functioned as a de facto dismissal (no complaint filed; bonds discharged), so the period is excludable under Rule 48(c)(6) or, alternatively, excludable for good cause under (c)(8) | Held for Visintin: calendar call did not effect a filed dismissal or adequate notice; 231 days charged to State; Rule 48 dismissal required (remand to decide with/without prejudice) |
| Constitutional speedy trial (Sixth Amendment / Haw. Const.) — whether delay violated constitutional right | Delay (≈12 months) plus consequences (multiple bail postings, Montana arrest) violated constitutional right | Delay was explained largely by prosecutor unavailability and extradition logistics; defendant did not timely demand trial; prejudice not shown | Held for State: constitutional right not violated after applying Barker factors (length, reasons, assertion, prejudice) |
| Excessive bail — whether obtaining multiple bails (without disclosure) requires dismissal | Multiple postings and nondisclosure of prior bail violated Eighth Amendment / Hawai‘i Const.; warranted dismissal | No authority supports dismissal of charges as remedy for excessive-bail procedural problems; remedies lie in habeas or custody-review writs | Held for State: no independent basis to dismiss indictment on excessive-bail claim |
| Motion to suppress — whether initial stop, ID request, and pat-down were unlawful | Crossing road and crouching in bushes insufficient for reasonable suspicion; ID request and pat-down exceeded scope | Officer observed late-night running, hiding on closed property in burglary-prone area, sweating and alcohol odor; ID request and pat-down (after admission of firearm) were reasonable and within scope | Held for State: circuit court properly denied suppression; stop and identification request were supported by reasonable suspicion and pat-down lawful for officer safety |
Key Cases Cited
- State v. White, [citation="92 Hawai'i 192, 990 P.2d 90"] (rule 48 standard of review and speedy-trial interpretation)
- Barker v. Wingo, 407 U.S. 514 (four-factor test for constitutional speedy-trial claims)
- United States v. Marion, 404 U.S. 307 (pre-indictment delay analysis and when speedy-trial protections attach)
- United States v. MacDonald, 456 U.S. 1 (purposes of speedy-trial right regarding pretrial restraint and bail)
- State v. Lau, [citation="78 Hawai'i 54, 890 P.2d 291"] (applying Barker factors under Hawai‘i law)
- State v. Eleneki, [citation="106 Hawai'i 177, 102 P.3d 1075"] (standard and burdens on motion to suppress)