State v. ShannonState v. Shannon
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- Before:
- Moon
Lead Opinion
Petitioner/Plaintiff-Appellee State of Hawaii (Petitioner) seeks review of the October 17, 2007 Judgment of the Intermediate Court óf Appeals (ICA),1 entered pursuant to its
We hold that (1) under
I.
The following matters adduced are from the record and the submissions of the parties. On February 11, 2005, Petitioner charged Respondent with criminal trespass in the second degree via amended complaint,7 according to Petitioner. Respondent entered a guilty plea and orally moved for DAGP. The court granted Respondent’s motion for DAGP and deferred Respondent’s plea for one year, provided that Respondent “[ (1) ] remain arrest and conviction free for that period, [ (2) ] . . . complete forty hours of community service, and [ (3) ] . . . pay a ‘CICF’[8] fee of twenty-five dollars.” Respondent’s Proof of Compliance hearing was set for January 27, 2006.
At the January 27, 2006 proof of compliance hearing, Petitioner orally moved to have Respondent’s DAGP revoked, and the court continued the hearing to March 26, 2006. On March 24, 2006, the court again continued the hearing, until April 6, 2006.
At the April 6, 2006 hearing, Respondent made several motions related to the DAGP. First, Respondent moved to have his forty hours of community service converted to a
Having disposed of Respondent’s motions, the court considered Petitioner’s motion to revoke Respondent’s DAGP. Petitioner introduced a probation report indicating that Respondent had been arrested on August 12, 2005.10 Respondent objected to the introduction of the probation report on the grounds that it was inadmissible hearsay and because it violated Respondent’s right to “confront[ ] . . . whatever evidence is going to be adduced against him.... ” Ultimately, the court took judicial notice that Respondent had been arrested subsequent to entering his DAGP.
As to revocation of the DAGP, Respondent argued that [the court] lacked jurisdiction to set aside the DAG[P] because the deferral period had already expired. In other words, the ‘prosecutor’s oral motion to set aside the DAG[P] did not toll the deferral period as a matter of law because [Petitioner] did not file a motion as required pursuant to [HRS] § 706-626 [sic, presumablyHRS § 706-627 11].
(Emphasis added.) Alternatively, relying on Lee, Respondent argued that his DAGP could not be revoked for failure to comply with conditions because Petitioner had not “show[n] proof that [Respondent] had received written notification” of those conditions. Finally, Respondent argued that the condition that he remain “arrest and conviction free” during the deferral period was improper because “[t]here is no condition . . . under [HRS § ]706-624 that permits any type of prohibition to be arrest free.”
Ultimately, the court revoked Respondent’s DAGP,
[b]ased on the report from the probation office, based on the [c]ourt’s judicial notice that certain charges have been filed against [Respondent], . . . and the [c]ourt’s finding that of the [forty] hours of community service that [Respondent] was ordered to . . . complete, [Respondent] has not completed any of those hours of community service.
Thus, the court accepted Respondent’s guilty plea, adjudged him guilty and imposed fines totaling $225.
II.
On appeal to the ICA, Respondent alleged that “[the court] committed reversible error” (1) in finding “that the period of deferral had been tolled by [Petitioner’s] oral motion on January 27, 2006, to set aside [Respondent’s] DAG[P],” (2) in “reviewing a hearsay probation report without making a finding that the probation officer was unavailable to testify in violation of the due process and the confrontation clauses[,]” (3) in “set[ting] aside the DAG[P] without any evidence that [Respondent] had signed in writing the conditions of the deferral[,]” (4) because the court “lacked statutory authority to impose a DAG[P] condition that [Respondent] remain arrest free[,]” (5) in “refus[ing] to convert [Respondent’s]
III.
The ICA found Respondent’s third issue on appeal to be dispositive and held that the court “erred in setting aside [Respondent’s] DAG[P] because [Respondent] did not receive a written copy of the conditions of his DAG[P].” Shannon, 116 Hawai‘i at 39, 169 P.3d at 991 (boldfaced font omitted). The ICA stated that
The ICA rejected Petitioner’s argument that Respondent’s “receipt of actual, oral notice [of the conditions of his DAGP] at the February 11, 2005 hearing was sufficient.” Id. The ICA reasoned that Petitioner’s position was incorrect under Lee. It explained that the legislative intent underlying
[t]he intent ofHRS § 706-624 is to provide the defendant with notice of what is expected of him in a form which will not escape his memory.
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The requirement ofHRS § 706-624(3) that a defendant be provided with a written statement of the conditions of his probation also provides assurance that a defendant will know the exact terms and conditions of his probation before his probation can be revoked for failure to comply with the terms and conditions.
Id. (quoting Lee, 10 Haw.App. at 198, 862 P.2d at 298) (ellipsis points in original). Although the ICA acknowledged that the court’s calendar indicated that on February 11, 2005, the court orally advised Respondent of the conditions of his DAGP, it was observed that “there is no evidence in the record that [Respondent] received a written copy of his conditions. [Respondent] contends that he did not receive a written copy, and [Petitioner] does not contend otherwise.” Id. Accordingly, the ICA vacated the court’s April 6, 2006 decision to revoke Respondent’s DAGP and “remanded for further proceedings consistent with this opinion.” Id.
IV.
In its application for certiorari, Petitioner presents a single question, “whether the ICA gravely erred in vacating the trial court’s decision to set aside [Respondent’s] DAG[P], notwithstanding his actual notice of the terms and conditions thereof.”
V.
The revocation of a DAGP is reviewed for an abuse of discretion. See Kaufman, 92 Hawai‘i at 326-27, 991 P.2d at 836-37 (stating that, like “[t]he grant or denial of a DAG[P],” the “setting aside, or revoking a DAG[P] is properly within the discretion of the trial court. Generally, to constitute an abuse, it must appeal’ that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of the party litigant.”) Similarly, sentencing decisions are also reviewed under the abuse of discretion standard. See State v. Davia, 87 Hawai‘i 249, 253, 953 P.2d 1347, 1351-52 (1998) (“The authority of a trial court to select and determine the severity of a penalty is normally undisturbed on review in the absence of an apparent abuse of discretion or unless applicable statutory or constitutional commands have not been observed.”)
VI.
Petitioner points to the ICA’s reliance on the policy concerns expressed in Lee, namely, that written notification of conditions ensures
Petitioner further argues that the court’s calendar “reflects that Respondent was apprised of the terms of his deferral” and that Respondent’s knowledge of those terms was proven by the facts that (1) Respondent paid the CICF fine on March 14, 2005, and (2) Respondent twice requested to have his community service requirement converted to a fine. Based on that, Petitioner argues that “Respondent . . . was aware of the terms and conditions of his deferral, and just as evidently cognizant that he had failed to fulfill them.’.’
VII.
The legislature adopted HRS chapter 853, entitled “Criminal Procedure: Deferred Acceptance of Guilty Plea, Nolo Contendere Plea,” because it determined that certain offenders should be provided the opportunity to be conviction free consistent with the government’s penal goals. The legislature explained that
“in certain criminal cases, particularly those involving first time, accidental, or situational offenders, it is in the best interest of the [prosecution] and the defendant that the defendant be given the opportunity to keep his [or her] record free of a criminal conviction, if he [or she] can comply with certain terms and conditions during a period designated by court order.”
State v. Putnam, 93 Hawai‘i 362, 367-68, 3 P.3d 1239, 1244-45 (2000) (quoting 1976 Haw. Sess. L. Act 154, § 2 at 279) (emphasis omitted) (brackets in original). Thus, in appropriate cases, the court may suspend the proceedings for a set period of time provided that the defendant complies with certain conditions imposed by the court. See
[t]he proceedings may be deferred upon any of the conditions specified by section 706-62f . . . The court may defer the proceedings for such period of time as the court shall direct but in no case to exceed the maximum sentence allowable; provided that, if the defendant has entered a plea of guilty or nolo contendere to a petty misdemeanor, which case the court may defer the proceedings for a period not to exceed one year....
To the extent that a defendant who has entered a DAGP remains at liberty, subject to certain conditions on his or her behavior, the deferral period is similar to probation. The Commentary on
Conversely, if the defendant does not successfully complete his or her deferral period in compliance with the terms and conditions imposed by the court, “the court may entel-an adjudication of guilt and proceed as otherwise provided.”
VIII.
This court has previously acknowledged the substantial similarity between the DAGP and probation statutes. See Kaufman, 92 Hawai‘i at 328, 991 P.2d at 838 (holding that “it is clear that the DAG[P] deferral period is closely analogous to a ‘probationary period ’ ” (emphasis added)). In Kaufman, the sentencing court set aside the defendant’s DAGP, accepted his guilty plea, and sentenced him accordingly. Id. at 325-26, 991 P.2d at 835-36. Kaufman appealed, arguing, inter alia, that the court “lacked jurisdiction to set aside [his] DAG[P] after the deferral period had expired[.]” Id. at 323, 991 P.2d at 833. The ICA affirmed, and this court accepted certiorari in order to “clarify that a motion to set aside a DAG[P] tolls the period of deferral pending the decision of the court on the motion.” Id.
In reaching that conclusion, this court conceded that “[t]he legislature has not enacted a tolling provision specifically applicable to DAG[P] deferral periods.” Id. at 328, 991
Based on the foregoing, it was decided that the deferral period of a DAGP and a probationary period were “closely analogous.” Id. Because of the close relationship between the two statutes, it was deemed appropriate to apply the tolling provision contained in the probation statute to Kaufman’s DAGP. See id. at 329, 991 P.2d at 839 (“Although
IX.
Consistent with the foregoing and as earlier noted,
In addition to guiding behavior, the Commentary on
Furthermore, the incorporation of
Given the importance of abiding by the conditions in the DAGP scheme, it is manifest that defendants whose DAGPs are accepted should be explicitly apprised of the conditions of their pleas in writing. Accordingly, in connection with the conditions from
X.
Based on the foregoing, the ICA correctly applied Lee. In Lee, the ICA reversed the circuit court’s decision to revoke Lee’s probation for violation of a condition on the ground that he was never given a written copy of the conditions of his probation. 10 Haw.App. at 192, 862 P.2d at 295-96. Looking to the Commentary on, and legislative history of,
Because
XI.
As opposed to Lee, the federal cases relied upon by the dissent and the ICA dissent adopt an “actual notice” rule. See dissent at 39, 185 P.3d at 224 (stating that “federal case law inteipreting similar federal statutes uniformly hold[s] that evidence of actual notice is sufficient to satisfy the federal statute’s written notice requirement” (capitalization and boldfaced font omitted)); see also Shannon, 116 Hawai‘i at 41, 169 P.3d at 993 (Nakamura, J., dissenting) (arguing in favor of the rule adopted in Arbizu, 431 F.3d at 470, that “the government’s failure to provide the notice required by the statutes does not limit the [trial] court’s authority to revoke supervised release where the defendant had actual notice of the release terms” (internal quotation marks omitted) (brackets in original)). The dissent finds persuasive the reasoning of the federal courts that have adopted an “actual notice” rule pursuant to
A.
A straightforward reading of
Contrary to the position espoused by the dissent and the ICA dissent, it is a well-established tenet of our statutory interpretation that the use of the word “shall” generally indicates the legislature’s intention to make a provision mandatory, as opposed to discretionary. See Gray v. Admin. Dir. of the Court, 84 Hawai‘i 138, 150 n. 17, 931 P.2d 580, 592 n. 17 (1997) (observing that “[t]he word ‘shall’ is generally construed as mandatory in legal acceptation”); Voellmy v. Broderick, 91 Hawai‘i 125, 129-30, 980 P.2d 999, 1003-04 (App.1999) (declaring that “[t]he word ‘shall’ ‘must be given a compulsory meaning . . . and is inconsistent with a concept of discretion’ ” (quoting Black’s Law Dictionary 1375 (6th ed.1990) (other citation omitted))); but see Narmore v. Kawafuchi, 112 Hawai‘i 69, 83, 143 P.3d 1271, 1285 (2006) (noting that “[w]hile the word ‘shall’ is generally regarded as mandatory, in certain situations it may properly be given a directory meaning” (quoting Jack Endo Elec., Inc. v. Lear Siegler, Inc., 59 Haw. 612, 616-17, 585 P.2d 1265, 1269 (1978) (citation omitted))). “We cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts. We do not legislate or make laws.” State v. Dudoit, 90 Hawai‘i 262, 271, 978 P.2d 700, 709 (1999). Thus, under the plain and unambiguous language of
B.
Additionally, this court has interpreted the word “shall” as “directory” rather than mandatory only where a three part test has been satisfied.
In Perry [v. Planning Comm’n of Hawaii County, 62 Haw. 666, 619 P.2d 95 (1980) ], this court articulated a three-prong test for determining when the word “shall” may be interpreted as directory. First, “shall” can be read in a non-mandatory sense when a statute’s “purpose “confute!s] the probability of a compulsory statutory design.” [Id.] at 676, 619 P.2d at 102. Second, “shall” will not be read as mandatory when “unjust consequences” result. Id. Finally, “the word ‘shall’ may be held to be merely directory, when no advantage is lost, when no right is destroyed, tvhen no benefit is sacrificed, either to the public or to the individual, by giving it that construction.” Id. at 677, 619 P.2d at 103.
Leslie v. Bd. of Appeals of County of Hawai‘i, 109 Hawai‘i 384, 394, 126 P.3d 1071, 1081 (2006) (emphases added).
First, there is nothing in the “statutory design” of either HRS chapter 706, part II, relating to probation, or HRS chapter 853, relating to DAGPs, that refutes the conclusion that
Second, “unjust consequences” would result if “shall” as used in this statute was construed to be directory. To illustrate, some defendants sentenced to probation or DAGPs could be given written conditions to guide their conduct, while others would not be accorded direction in a tangible form. Given the importance of the conditions in a probationary or DAGP framework, it would be inherently unfair to permit disparate enforcement of the requirement that defendants
Third, construing “shall” in this context as directory would deprive the individual defendants and society of the intended benefits of the DAGP. As described above, the written conditions are intended to facilitate adherence to the DAGP conditions and thus, promote compliance. Successful observance of the conditions benefits the individual, who remains conviction-free, and also benefits society, in that the present and future productivity of these defendants is preserved and enhanced. Putnam, 93 Hawai‘i at 367-68, 3 P.3d at 1244-45 (explaining that “in certain criminal cases . . . it is in the best interest of the [prosecution] and the defendant that the defendant be given the opportunity to keep his [or her] record free of a criminal conviction, if he [or she] can comply with certain terms and conditions during a period designated by court order” (quoting 1976 Haw. Sess. L. Act 154, § 2 at 279)) (emphasis omitted) (brackets in original).
C.
Similarly, Lee cited to State v. Medina, 72 Haw. 493, 824 P.2d 106 (1992), in support of its determination that “actual notice” was not a substitute for a written copy of the court’s conditions in a similar context. See Lee, 10 Haw.App. at 198, 862 P.2d at 298 (holding that “[i]n view of the plain mandate and legislative purpose of
The Medina court found “unconvincing” the prosecution’s argument that the defendant’s “actual knowledge” of the existence of the order was sufficient to allow the prosecution for its violation, reasoning that “where statutory language is plain and unambiguous, that language must ordinarily be regarded as conclusive unless literal application would produce an absurd or unjust result clearly inconsistent with the purposes and policies of the statute.” Id. at 494, 824 P.2d at 107 (citing State v. Palama, 62 Haw. 159, 612 P.2d 1168 (1980)). Analogously, in the situation where a probationer has not received a written copy of the conditions of his or her probation and is facing revocation, Lee indicated that “[t]he requirement of
D.
Based on the foregoing, it is manifest that sentencing courts are mandated to provide defendants written copies of the conditions of a DAGP. It would be violative of the statute to adopt an “actual notice” rule such as that applied by the federal courts as a substitute for written notice. The ICA’s conclusion that “[the court] erred in setting aside [Respondent’s] DAG[P] because [Respondent] did not receive a written copy of the conditions of his DAG[P,]” Shannon, 116 Hawai‘i at 39, 169 P.3d at 992 (formatting altered), then, was correct.
XII.
In contrast to the foregoing analysis, the dissent contends that (1) the written statement of conditions “is not a ‘condition’ per se by which further proceedings may be de-ferredf,]” dissent at 35, 185 P.3d at 220, (2)
A.
Conditions listed in
On its face,
Thus, there are no “consequences” stated in HRS chapter 853 for non-compliance with
The fact that
B.
With all due respect, the dissent’s analysis of the legislative history of
XIII.
A.
It would appear’ logical and consistent with the penal code’s insistence that the regularity and formality of imposing probation or DAGP conditions in wilting, should extend as well to a motion to revoke probation or DAGP for failure to comply with those
B.
As noted previously,
[u]pon the filing of a motion to revoke a probation . . . the period of probation shall be tolled pending the hearing upon the motion and the decision of the court. The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation, if any. In the event the court fails to file a written decision upon the motion, the period shall be computed by reference to the date the court makes a decision upon the motion in open court During the period of tolling of the probation, the defendant shall remain subject to all terms and conditions of the probation except as otherwise provided by this chapter.
(Emphases added.) First, reading the plain language of this statute, it is evident that a motion to revoke probation, and by analogy, a motion to revoke a DAGP, must be in writing. Cf. Kaufman, 92 Hawai‘i at 329, 991 P.2d at 839 (concluding that the express language of the DAGP statute as well as “the public policy concerns and legislative intent underlying the tolling of probation” rendered that provision “equally applicable to the tolling of a deferral period pursuant to [a] DAG[P]”). The statute expressly requires that such a motion be filed. “File” is not defined in the statute. In its ordinary application, to “file” is “to deliver a legal document to the court clerk or record custodian for placement into the official record.” Black’s Law Dictionary 660 (8th ed.2004). See Blaisdell v. Dep’t of Pub. Safety, 113 Hawai‘i 315, 319, 151 P.3d 796, 800 (2007) (“Where a term is not statutorily defined . . . we may rely upon extrinsic aids to determine such intent. Legal and lay dictionaries are extrinsic aids which may be helpful in discerning the meaning of statutory terms.” (Quoting Singleton v. Liquor Comm’n, 111 Hawai‘i 234, 243-44, 140 P.3d 1014, 1023-24 (2006) (internal quotation marks, brackets, and citation omitted))).27
C.
Second, reading
It emphasizes that the statute requires “written notice” of the intent to revoke as a matter of procedural due process. Specifically, it states in relevant part that
[t]his section affords the defendant threatened with loss or change of suspension or probation status the same procedural protection afforded a defendant at the time of original disposition. Determinations to revoke suspension or probation, or to change the conditions thereof, are sometimes made with a degree of informality that does not afford to the defendant adequate opportunity to obtain counsel and, to be heard upon the evidence.
This is an area where dangers of abuse are real and the normal procedural protection proper. That a defendant has no right to suspension or probation does not justify the alteration of his status by methods that must seem and sometimes be unfair.
Although written notice, the right to be represented by counsel, and the right to controvert and be heard upon the evidence, are provided by this section, it is not contemplated that the court must strictly enforce the rules of evidence....
Commentary on
The defendant must be informed of the presentence report beforehand in order to prepare for the hearing on his sentence. The Commentary on
Additionally,
The Commentary on
XIV.
The dissent concludes that because
Therefore,
XV.
Because Petitioner did not file a written motion to revoke Respondent’s DAGP, the probationary period was not tolled. Respondent’s DAGP was entered on February 11, 2005. The court accepted the DAGP and imposed a one-year deferral period. On January
On April 6, 2006, the court purported to set aside Respondent’s DAGP. However, inasmuch as the deferment period had expired approximately two months earlier, the court lacked jurisdiction to revoke Respondent’s DAGP. See Kealaiki, 95 Hawai‘i at 315, 22 P.3d at 594 (“Successful completion of the deferral period results in dismissal of the charge and can lead to expungement of the defendant’s criminal record.” (Citing
Notes
. Pursuant to Hawai‘i Revised Statutes (HRS) § 602-59 (Supp.2007), a party may appeal the decision of the ICA. See
(1) Grave errors of law or of fact; or
(2) Obvious inconsistencies in the decision of the [ICA] with that of the supreme court, federal decisions, or its own decision,
and the magnitude of such errors or inconsistencies dictating the need for further appeal.
. The opinion of the ICA was authored by Presiding Judge Daniel R. Foley, who was joined by Associate Judge Alexa D.M. Fujise. Associate Judge Craig H. Nakamura filed a dissenting opinion. As used herein, “ICA” refers to the majority opinion and the “ICA dissent” refers to Judge Nakamura’s separate dissenting opinion.
. The Honorable T. David Woo, Jr. presided.
.
. See infra note 18.
. See infra notes 19 & 20.
. It appears that if there were a written complaint, it was not made a part of the record on appeal. However, the calendar from the court indicates that on February 11, 2005, Petitioner was “orally charged.” (Capitalization altered.)
. “CICF” is not defined by the parties or by the record.
. Respondent attended a “screening/placement interview” related to his community service requirement, but failed to report to his assigned location. As of December 9, 2005, the Aduh/Ju-venile Community Service and Restitution Unit reported to the court that Respondent‘s community service obligation remained outstanding.
. According to Petitioner, Respondent faced “two charges of Temporary Restraining Order[and] a charge of Theft in the Fourth Degree.”
.
[u]pon the filing of a motion to revoke a probation . . . the period of probation shall be tolled pending the hearing upon the motion and the decision of the court. The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation, if any. In the event the court fails to file a written decision upon the motion, the period shall be computed by reference to the date the court makes a decision upon the motion in open court. During the period of tolling of the probation, the defendant shall remain subject to all terms and conditions of the probation except as otherwise provided by this chapter.
(Emphases added.)
.
. Petitioner notes that other federal cases espoused similar rules. (Citing United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir.2002) (agreeing with the First and Eighth Circuits that “a failure to provide written notice of . . . conditions [of supervised release] will not automatically invalidate the revocation of [defendant‘s] release based upon a violation of such conditions”)); United States v. Felix, 994 F.2d 550, 551 (8th Cir.1993) (holding that “the failure to order or to provide a written statement” of conditions of supervised release be furnished to the defendant does not “automatically resull[] in the inability of a sentencing court to revoke supervised release based on a violation of one of the conditions” (citations omitted)); cf. United States v. Tapia-Marguez, 361 F.3d 535, 538 (9th Cir.2004) (explaining that the rule in Ortega-Brito “would have compelled affirmance of the judgment [revoking defendant’s supervised release] if [his] release from custody had not rendered his appeal moot”). Although Petitioner acknowledges that this court is free to give greater constitutional protection under the Hawaii Constitution than what is afforded under the federal constitution, it argues that in this case, “logic and sound regard for such protection is not warranted. . . .”
. Accordingly, the DAGP statutory scheme does not list independent conditions with which the defendant must comply.
. Pertinent to this case are the following provisions in
(1) Mandatory Conditions. The court shall provide, as an explicit condition of a sentence of probation:
(a) That the defendant not commit another federal or state crime during the term of probation;
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(2) Discretionary conditions. The court may provide, as further conditions of a sentence of probation, . . . that the defendant:
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(b) Perform a specified number of hours of seivices to the community as described in section 706—605(l)(e);
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(d) Pay a fine imposed pursuant to section 706—605(l)(b);
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(Emphases added.)
. As noted by the dissent, dissent at 39-40, 185 P.3d at 224-225, and the ICA dissent, Shannon, 116 Hawai‘i at 41-42, 169 P.3d at 993-94 (Nakamura, X, dissenting), federal circuits define actual notice, in the context of
In Ortega-Brito, 311 F.3d at 1138-39, the Ninth Circuit addressed a situation where the exchange between the defendant and judge was “virtually identical to that described in Felix.” The Ninth Circuit held that the colloquy with the defendant, where the judge informed the defendant that the terms of his supervised release was “like parole” and that “if you do something wrong, you go back to jail,” was sufficient oral notice to constitute actual notice of the defendant‘s conditions of compliance and satisfy the purposes of
In United States v. Ramos-Santiago, 925 F.2d 15, 16 (1st Cir.1991), the court concluded that the defendant‘s supervised release was properly revoked because it was “undisputed” that “upon being sentenced” the defendant and his counsel “received copies of die sentence, to which were attached, inter alia the conditions of his supervised release,” the “essentials of the notice required” were met. Id. at 16-17. The notice was “sufficiently clear and specific . . . to serve as a guide for [defendant‘s expected behavior during the term of supervised release.” Id. at 17
Assuming arguendo that the standard announced in the aforementioned federal cases applies without considering the actual language and commentary of our own statute, the evidence presented in this case is insufficient to satisfy the requirement that a defendant be given notice sufficient to “serve as a guide for the defendant‘s conduct.” Felix, 994 F.2d at 552. The record does not indicate that Respondent was orally apprised of the seriousness of remaining arrest and conviction free. Although the ICA noted in dictum that the “[the court] calendar reflects that [the court] orally apprised [Respondent] of his special conditions!,]” Shannon, 116 Hawai‘i at 40, 169 P.3d at 992, nowhere in the calendar is it stated with specificity that Respondent was “apprised” of these terms. The court calendar merely delineates the conditions of Respondent‘s DAGP and, at best, shows what conditions the court intended to impose on Respondent’s DAGP. Nor does the record indicate Respondent was told that his DAGP was “like parole,” or that he “better not mess up,” as in Felix and Ortega-Brito. The record also does not indicate, and the parties do not contest, whether Respondent was given a copy of his sentence as in Ramos-Santiago. Thus, it cannot be said that, based on the record, there exists substantial evidence to support the conclusion that Respondent was given sufficient actual notice even under the federal cases.
. In 2006,
. The court shall order the defendant at the time of sentencing to sign a written acknowl-edgement of receipt of conditions of probation. The defendant shall be given a written copy of any requirements imposed pursuant to this section, staled with sufficient specificity to enable the defendant to comply with the conditions accordingly.
2006 Haw. Sess. L. Act 230, § 20 at 1010 (emphasis omitted). This amendment is inapplicable to Respondent inasmuch as the court accepted his DAGP on February 11, 2005, before the amendment became effective, see 2006 Haw. Sess. L. Act 230, § 54 at 1025 (providing that the act would take effect upon its approval), and the amendment was not made retroactive, see 2006 Haw. Sess. L. Act 230, § 51 at 1025 (stating that “[t]his Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date”). Thus, the amendment does not change the analysis in this opinion.
. In its entirety,
(a) Upon proper motion as provided by this chapter:
(1) When a defendant voluntarily pleads guilty or nolo contendere, prior to commencement of a trial, to a felony, misdemeanor, or petty misdemeanor;
(2) It appears to the court that the defendant is not likely again to engage in a criminal course of conduct; and
(3) The ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law,
the court, without accepting the plea of nolo contendere or entering a judgment of guilt and with the consent of the defendant and after considering the recommendations, if any, of the prosecutor, may defer further proceedings.
(b) The proceedings may be deferred upon any of the conditions specified bysection 706-624 . As a further condition, the court shall impose a compensation fee pursuant to section 351-62.6.... The court my defer the proceedings for a period of time as the court shall direct but in no case to exceed the maximum sentence allowable.... The defendant may be subject to bail or recognizance at the court’s discretion during the period during which the proceedings are deferred.
(c) Upon the defendant‘s completion of the period designated by the court and in compliance with the terms and conditions established, the court shall discharge the defendant and dismiss the charge against the defendant.
(d) Discharge of the defendant and dismissal of the charge against the defendant under this section shall be without adjudication of guilt, shall eliminate any civil admission of guilt, and is not a conviction.
(e) Upon discharge of the defendant and dismissal of the charge against the defendant under this section, the defendant may apply for expungement not less than one year following discharge, pursuant to section 831-3.2.
(Emphasis added.)
.
(a) That the defendant not commit another federal or state crime during the term of probation;
(b) That the defendant report to a probation officer as directed by the court or the probation officer;
(c) That the defendant remain within the jurisdiction of the court, unless granted permission to leave by the court or a probation officer;
(d) That the defendant notify a probation officer prior to any change in address or employment;
(e) That the defendant notify a probation officer promptly if arrested or questioned by a law enforcement officer; and
(f) That the defendant permit a probation officer to visit the defendant at the defendant’s home or elsewhere as specified b the court.
.
. The dissent also considers briefly the other arguments Respondent raised on appeal to the ICA, judging them to be without merit. See dissent at 40, 185 P.3d at 225. Although none of these issues are dispositive of this appeal, it is worth noting that Respondent‘s argument regarding the condition that he remain arrest free may have merit.
To summarize, Respondent argued that the court did not have statutory authority to impose a condition that he remain arrest free during his deferral period. In response, Petitioner argued, inter alia, that the court had authority under
Unlike the other conditions delineated in
. The dissent relies on State v. Sylva, 61 Haw. 385, 605 P.2d 496 (1980), to conclude that construing Lee and the provisions of HRS 706-624 creates ambiguity. See dissent at 39, 185 P.3d at 224 (noting that this court, “notwithstanding the plain language of
In Sylva, the defendant‘s request for a DAGP was denied pursuant to
Sylva did not address whether reading
. Respectfully, the dissent’s dismissal of Lee, on the ground that “construing the plain language of
. The dissent’s assertion that there are no consequences if the court fails to comply with
. As noted before and significantly, the most recent amendment to
. Although this issue was not raised in the application for certiorari, it was argued to the ICA. Respondent argued that the plain and unambiguous language of
Petitioner answered that “revocation of a DAGP is specifically and expressly governed by
. Our courts have not addressed whether an oral motion constitutes the “filing of a motion” under
.
(1) Before imposing sentence, the court shall afford a fair opportunity to the defendant to be heard on the issue of the defendant’s disposition.
(2) The court shall furnish to the defendant or the defendant‘s counsel . . . a copy of the report of any pre-sentence diagnosis or psychological, psychiatric, or other medical examination and afford fair opportunity, if the defendant or the prosecuting attorney so requests, to controvert to supplement them. The court shall amend or order the amendment of the report upon finding that any correction, modification, or addition is needed and, where appropriate, shall require the prompt preparation of an amended report in which material required to be deleted is completely removed or other amendments, including additions, are made.
(Emphases added.)
. To reiterate, the pertinent portion of the statute provides:
The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation, if any. In the event the court fails to file a written decision upon the motion, the period shall be computed by reference to the date the court makes a decision upon the motion in open court.
. Palama discussed
Dissenting Opinion
Dissenting Opinion by
NAKAYAMA, J.I respectfully dissent. Pursuant to the following discussion, I believe that the plain language of Hawai‘i Revised Statutes (HRS)
I. DISCUSSION
A. In My View, the Plain Language Of
In its writ of certiorari, the prosecution requests that this court interpret the plain language of
Rather than strictly construe the plain language of
Written statement of conditions. The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject, and that is sufficiently clear and specific to serve as a guide for the defendant’s conduct and for such supervision as is required.
The Fifth Circuit observed that
[t]he purpose of [18 U.S.C.]§§ 3583(f) and 3603(1)[1] is to ensure that the defendant is notified of the conditions of his supervised release. Congress decided that requiring the probation officer to provide the defendant with written notice of the conditions is the best way to ensure the defendant knows what is expected of him during the supervised release period. It would be patently unfair to revoke a defendant’s supervised release and send him back to prison for violating conditions of the release that he had no way of knowing existed.
Congress, however, did not decide that a defendant who does not receive the proper written notice should be immune from revocation of supervised release. A defendant who knows that his supervised release terms bar certain conduct should not be allowed to engage in that conduct and then hide behind the government’s failure to follow statutory notice procedures during sentencing.
Id. at 41-42, 169 P.3d at 993-94 (quoting Arbizu, 431 F.3d at 471).
Hawaii’s DAG plea statutory framework is subsumed under HRS chapter 853.
Deferred acceptance of guilty plea or nolo contendere plea; discharge and dismissal, expungement of records.
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(b) The proceedings may be deferred upon any of the conditions specified by section 706-62J/.. As a further condition, the court shall impose a compensation fee pursuant to section 351-62.6 upon every defendant who has entered a plea of guilty or nolo contendere to a petty misdemean- or, misdemeanor, or felony; provided that the court shall waive the imposition of a compensation fee, if it finds that the defendant is unable to pay the compensation fee. The court may defer the proceedings for a period of time as the court shall direct but in no case to exceed the maximum sentence allowable; provided that, if the defendant has entered a plea of guilty or nolo contendere to a petty misdemeanor, the court may defer the proceedings for a period not to exceed one year. The defendant may be subject to bail or recognizance at the court’s discretion during the period during which the proceedings are deferred.
(Emphasis added.)
Conditions of probation.
(1) Mandatory conditions. The court shall provide, as an explicit condition of a sentence of probation:
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(2) Discretionary conditions. The court may provide, as further conditions of asentence of probation, to the extent that the conditions are reasonably related to the factors set forth in section 706-606 and to the extent that the conditions involve only deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 706-606(2), that the defendant:
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(3) Written statement of conditions. The court shall order the defendant at the time of sentencing to sign a written acknowledgment of receipt of conditions of probation. The defendant shall be given a written copy of any requirements imposed pursuant to this section, stated with sufficient specificity to enable the defendant to comply with the conditions accordingly.
Reading
B. The Legislative History Of
1.
Enacted in 1976,2 HRS chapter 853 was intended “to establish a means whereby a court in its discretion may defer acceptance of a guilty plea . . . for a certain period on certain conditions with respect to certain defendants.” Hse. Conf. Comm. Rep. No. 31, in 1976 House Journal, at 1140. In so establishing, a “defendant [has] the opportunity to keep his record free of criminal conviction, if he can comply with those terms and conditions during the period designated by court order.” Id. “The completion of such period in compliance with such conditions may then result in the discharge of the defendant and expungement of the matter from his record.” 1976 Haw. Sess. L. Act 154, § 1 at 279. Hawaii’s legislature concluded that “[i]t is in the best interest of the State that in certain criminal cases, particularly those involving first time, accidental, or situational offenders,
Accordingly, HRS chapter 853 was enacted to
[s]et out specifically and in detail: (a) how the court shall discharge the defendant and dismiss the charge against him; (b) that the defendant may apply for expungement of all recordation relating to his arrest, arraignment, indictment, information, plea of guilty, or dismissal and discharge and the exceptions thereto; (c) proceedings for commencing a “DAG” plea; (d) the legal consequences of violation of terms and conditions during deferment; and (e) when the “DAG” plea chapter would not be applicable.
1976 House Journal, at 1140.
In 1988,
In 2000,
(b) . . . As a further condition, the court shall impose a compensation fee pursuant to section 351-62.6 upon every defendant who has entered a plea of guilty or nolo contendere to a petty misdemeanor, misdemeanor, or felony; provided that the court shall waive the imposition of a compensation fee, if it finds that the defendant is unable to pay the compensation fee.
2000 Haw. Sess. L. Act 115, § 3 at 232-33. In imposing this fee, Hawaii’s legislature recognized the “substantial benefit” that a DAG plea under
Pursuant to the foregoing, this court has determined that “the granting of a DAG plea is an act of legislative grace, within the discretion of the trial court; it is not a matter of right for the defendant.” State v. Kaufman, 92 Hawai‘i 322, 329, 991 P.2d 832, 839.3 In Kaufman, the defendant pled guilty to twenty-six counts of theft in the first degree and moved for a DAG plea, which the circuit court granted. Id. at 323-24, 991 P.2d at 833-34. The defendant’s DAG plea was conditioned on the defendant being “free from further conviction for a period of five years[,]” and to “reimburse all monies received. . . .” Id. at 324, 991 P.2d at 834. The trial court deferred acceptance of the defendant’s DAG plea for five years, but the deferment period was extended for an additional five years, bringing the total deferment period to ten years. Id. at 327, 991 P.2d at 837.
2.
In light of the foregoing, I will now review the legislative history of
In 1986,
In 2006, Hawaii’s legislature again made numerous “substantive and technical amendments to” the HPC, Hse. Conf. Comm. Rep. No. 94-06, in 2006 House Journal, at 1813, which included revising
(3) Written statement of conditions. The court shall order the defendant at the time of sentencing to sign a written ac-knowledgement [sic] of receipt of conditions of probation. The defendant shall be given a written copy of any requirements imposed pursuant to this section, stated with sufficient specificity to enable the defendant to comply with the conditions accordingly.
2006 Haw. Sess. L. Act 230, § 20 at 1010. Again, there is no indication of legislative
The Commentary to
C. In My View, the ICA Gravely Erred When It Held That
Most closely analogous to the instant case is this court’s opinion in State v. Huggett, 55 Haw. 632, 636-37, 525 P.2d 1119, 1122-23 (1974), where this court gleaned guidance from several federal court decisions to conclude that even though the defendant “neither saw nor signed the written conditions of probation applicable to him[,]” oral notice of a condition is sufficient to revoke his probation for failing to comply with that condition. In State v. Lee, 10 Haw.App. 192, 197, 862 P.2d 295, 297 (1993), however, the ICA noted that ‘Huggett . . . involved an offense committed in 1971, prior to the effective date (January 1,1973) of the Hawaii Penal Code.”
The ICA in the instant case relied solely on its opinion in Lee to reject the prosecution’s argument that “Shannon’s receipt of actual, oral notice at the February 11, 2005 hearing was sufficient.” Shannon, 116 Hawaii at 40, 169 P.3d at 992. In Lee, the defendant pled no contest to the offense of sexual assault in the third degree, and was sentenced to a term of five years of probation and twelve months in jail. 10 Haw.App. at 193, 862 P.2d at 296. The defendant’s jail term was suspended, however, on certain conditions. Id. Because the defendant violated one of these conditions, the prosecution moved to revoke his probation, which was granted by the trial court. Id. at 194-95, 862 P.2d at 296-97. On appeal, the ICA reversed the trial court’s decision on the ground that the defendant was not provided with written notice of the terms and conditions of his probation pursuant to the plain language of
Particularly persuasive in that connection is this court’s discussion in State v. Sylva, 61 Haw. 385, 605 P.2d 496 (1980). In Sylva, the defendant pled guilty to the offense of burglary in the second degree, but was denied his request for a DAG plea pursuant to
On appeal, this court determined that “when read independently of the other subsections,”
Similarly, as discussed supra, I would hold that the plain language of
Accordingly, pursuant to the legislative history of
D. Federal Case Law Interpreting Similar Federal Statutes Uniformly Hold That Evidence Of Actual Notice Is Sufficient To Satisfy the Federal Statutes’ Written Notice Requirement.
Because I would conclude that
As quoted above, section 3583(f) of Title 18 of the United States Code provides, in its entirety:
Written statement of conditions. The court shall direct that the probation officer provide the defendant with a written statement that sets forth all the conditions to which the term of supervised release is subject, and that is sufficiently clear and specific to serve as a guide for the defendant’s conduct and for such supervision as is required.
Additionally, section 3603(1) of Title 18 of the United States Code provides:
A probation officer shall—
(1) instruct a probationer or a person on supervised release, who is under his supervision, as to the conditions specified by the sentencing court, and provide him with a written statement clearly setting forth all such conditions[.]
As discussed supra, a federal court has held that “[i]t would be patently unfair to revoke a defendant’s supervised release and send him back to prison for violating conditions of the release that he had no way of knowing existed.” Arbizu, 431 F.3d at 471. At the same time, however, “Congress . . . did not decide that a defendant who does not receive the proper written notice should be immune from revocation of supervised release.” Id.; United States v. Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir.2002) (“[T]he statutes detail the obligations of the [federal] district court and the probation officer, [but] they are silent with respect to remedies for noncompliance.”). Rather, “[t]he purpose behind the requirement that the court order a written statement of the conditions of supervised release be furnished to the defendant is to provide ‘a guide for the defendant’s conduct and for such supervision as is required.’ ” United States v. Felix, 994 F.2d 550, 551 (8th Cir.1993); Arbizu, 431 F.3d at 471 (“Congress decided that requiring the probation officer to provide the defendant with written notice of the conditions is the best way to ensure the defendant knows what is expected of him during the supervised release period.”). Accordingly, “[because the ultimate goal” of the written notice requirement “is notice and guidance for the defendant,” the federal courts “deeline[d] to impose a rule that failure to order or to provide a written statement automatically results in the inability of the sentencing court to revoke supervised release based on a violation of one of the conditions.” Felix, 994 F.2d at 551; see Ortega-Brito, 311 F.3d at 1138 (agreeing with the reasoning of Felix).
Instead, federal courts have held that actual notice is sufficient to satisfy the purpose of the federal statutes quoted above. Felix, 994 F.2d at 551; see Arbizu, 431 F.3d at 471 (“We conclude, therefore, that failure to provide written notice of the conditions of supervised release does not automatically invalidate a revocation of such release if the defendant received actual notice of the conditions imposed.”); United States v. Tapia-Marquez, 361 F.3d 535, 538 (9th Cir.2004) (affirming its holding in Ortega-Brito); Ortega-Brito, 311 F.3d at 1138 (“[W]e must determine whether [the defendant] received actual notice of the conditions, the violations of which formed the basis for the revocation of his supervised release.”); United States v. Ramos-Santiago, 925 F.2d 15, 17 (1st Cir.1991) (holding that even though the defendant never received a “written statement of conditions,” the “essentials of the notice required” by the federal statutes were met when the defendant and his counsel “received copies of the sentence, to which were attached, inter alia, the conditions of his supervised release.”).
I believe that the foregoing reasoning is persuasive, insofar as it gives
The issue presented therefore becomes whether the evidence is sufficient to support a finding that Shannon was given adequate actual notice of the conditions of his DAG plea. In the instant ease, the record reflects that Shannon satisfied one of these conditions; namely, he paid the twenty-five dollar “CICF” fine on March 14, 2005. The record also reflects, and Shannon admits, that he requested that the trial court convert his outstanding forty-hours of community service work into a fine. In light of the foregoing, I would hold that the evidence is sufficient to show that Shannon had actual notice of the terms and conditions of his DAG plea.
E. In My View, Shannon’s Remaining Points Of Error On Appeal Are Without Merit.
1. In my vieiu, HRS S 706-627(1) (1993) does not require that a written motion to set aside a DAG plea be filed to toll the defenrol period.
In his opening brief before the ICA, Shannon asserts that the plain language of
(1) Upon the filing of a motion to revoke a probation or a motion to enlarge the conditions imposed thereby, the period of probation shall be tolled pending the hearing upon the motion and the decision of the court. The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation, if any. In the event the court fails to file a written decision upon the motion, the period shall be computed by reference to the date the court makes a decision upon the motion in open court. During the period of tolling of the probation, the defendant shall remain subject to all terms and conditions of the probation except as otherwise provided by this chapter.
This court has long adhered to the following rule of statutory construction: “When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself.” White, 110 Hawai‘i at 83, 129 P.3d at 1111 (quoting Gray, 84 Hawai‘i at 148, 931 P.2d at 590).
Contrary to Shannon’s assertion, the plain language of
In the instant case, Shannon’s DAG plea was requested by oral motion and granted by the trial court on February 11, 2005. The proof of compliance hearing had been held on January 27, 2006. It was at this hearing that the prosecution made its oral motion to set aside Shannon’s DAG plea.6 For reasons not included in the record on appeal, the hearing
2. In my view, Shannon’s assertion that the trial court lacked statutory authority to impose, as a condition of his DAG plea, that he remain arrest free is disregarded pursuant to Hawai‘i Rules of Appellate Procedure (“HRAP’’) Rule 28(b) ft) (2006).
Shannon asserts that the trial court lacked statutory authority to impose, as a condition of his DAG plea, that he remain arrest free during the period of his deferral. Shannon’s sole argument as to this point of error is that the plain language of
The prosecution contends that this point of error should be disregarded, inasmuch as Shannon failed to object to this condition. The prosecution further contends that the trial court had the authority to impose such a condition pursuant to
HRAP Rule 28(b)(4) requires that each point of error shall state:
(i) the alleged error committed by the court or agency; (ii) where in the record the alleged error occurred; and (iii) where in the record the alleged error was objected to or the manner in which the alleged error was brought to the attention of the court or agency.
Shannon fails to satisfy the requirements of (ii) and (iii) in his opening brief, and does not assert that his substantial rights were adversely affected by the trial court’s imposition of this condition. Moreover, even if the trial court erred in imposing this condition, the error did not affect Shannon’s substantial rights inasmuch as Shannon admitted to not satisfying the condition of completing forty-hours of community service work. See
Assuming, arguendo, that the trial court erred in imposing the condition of remaining arrest-free, the error is harmless in light of the circumstances of this case. See Rivera, 106 Hawai‘i at 165-66, 102 P.3d at 1063-64. Accordingly, I would disregard this point of error. “Points not presented in accordance with this section will be disregarded, except that the appellate court, at its option, may notice a plain error not presented.” HRAP Rule 28(b)(4).
3. In my view, Shannon’s assertion that the trial court violated his right to confrontation is without merit.
Shannon asserts that the trial court violated his constitutional right to confrontation when it admitted the Adult Client Services report into evidence inasmuch as it constituted hearsay and he was not given an opportunity to cross-examine the probation officer that filled out the report. The prosecution contends that the trial court did not err when it admitted the report into evidence, and points out that the trial court took judicial notice “of the fact that [Shannon] has been charged with [a] crime subsequent . . . to the date that he was sentenced.... ” The prosecution
As discussed above and notwithstanding whether the trial court erred in either taking judicial notice of his arrest or admitting the report as evidence of his arrest record, the error complained of by Shannon does not affect his substantial rights inasmuch as Shannon admitted to not satisfying the condition of completing forty-hours of community service work. See
4. In my view, Shannon’s assertion that the trial court abused its discretion when it refused to convert his forty hours of community service tvork into a fine is deemed waived pursuant to HRAP Ride 28(b)(7).
Shannon asserts that because “the usual practice of the tidal court is to permit a probationer the opportunity to convert his or her community service [work] into a fine[,]” the trial court abused its discretion when it denied Shannon’s request for the court to do the same for him. However, Shannon fails to include “citations to the authorities, statutes and parts of the record relied on” to support his assertion that this is a “usual practice of the trial court....” HRAP Rule 28(b)(7). Accordingly, I would deem Shannon’s point of error as waived. See id. (“Points not argued may be deemed waived.”).
5. In my vieiu, the trial court did not abuse its discretion uihen it refused to grant Shannon’s motion for continuance.
Shannon asserts that the trial court abused its discretion when it refused to grant his motion to continue the April 6, 2006 hearing so that he could have more time to obtain a transcript of his ehange-of-plea hearing. Shannon contends that this transcript would have clarified whether additional grounds exist for his DAG plea to be withdrawn. He also contends that his request for a continuance was reasonable because he was retained as counsel shortly before the April 6, 2006 hearing.
The trial court ruled on Shannon’s motion for a continuance, as follows:
THE COURT: . . . I’m going to deny the . . . motion.... It’s been a year since defendant was . . . sentenced. And . . . there’s been more than adequate time for this motion to have been made previously.
And I’ll also note that the general practice of the [cjourts is that subsequent to . . . the imposition of sentence, the courts are reluctant to grant withdrawal of plea. So I’m going to deny the motion at this time without prejudice to you to raise that later.
[SHANNON’S COUNSEL]: Well, . . . is the [e]ourt considering that I just got on the case?
THE COURT: Yes. And I don’t think that this is a motion of such magnitude that really requires that . . . it be continued for a hearing at this time.
“We review a trial court’s decision to grant or deny a motion to continue for an abuse of discretion.” Onaka v. Onaka, 112 Hawaii 374, 378, 146 P.3d 89, 93 (2006). “[A]n abuse of discretion occurs if the trial court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant.” Klie, 116 Hawai‘i at 522, 174 P.3d at 361.
Even though Shannon’s present counsel was retained close to the April 6, 2006 hearing, I cannot conclude that the trial court abused its discretion because (1) it took Shannon over a year to decide that he wanted to withdraw his guilty plea, and (2) Shannon acquiesced to the terms and conditions of his DAG plea when he satisfied the condition of payment of a fine on March 14, 2005. The conditions of his DAG plea were given on February 11, 2005, which is the same day that Shannon changed his plea to guilty and was granted a DAG plea by the trial court. Accordingly, Shannon had more than a
II. CONCLUSION
Based upon the foregoing analysis, I would reverse the ICA’s October 17, 2007 judgment on appeal.
. 18U.S.C. § 3603(1) provides, in its entirety:
A probation officer shall—
(1) instruct a probationer or a person on supervised release, who is under his supervision, as to the conditions specified by the sentencing court, and provide him with a written statement clearly setting forth all such conditions[J
. The language of
The proceedings may be deferred upon any of the conditions specified by section-624, Hawaii Penal Code. The court may defer the proceedings for such period of time as the court shall direct but in no case to exceed the maximum sentence allowable. The defendant may be subject to bail or recognizance at the court‘s discretion during the period which the proceedings are deferred.
1976 Haw. Sess. L. Act 154, § 2 at 280.
. I note that even though Kaufman did not address the same issue, its reasoning is persuasive.
.
(1) Upon the filing of a motion to revoke a probation or a motion to enlarge the conditions imposed thereby, the period of probation shall be tolled pending the hearing upon the motion and the decision of the court. The period of tolling shall be computed from the filing date of the motion through and including the filing date of the written decision of the court concerning the motion for purposes of computation of the remaining period of probation, if any. In the event the court fails to file a written decision upon the motion, the period shall be computed by reference to the date the court makes a decision upon the motion in open court. During the period of tolling of the probation, the defendant shall remain subject to all terms and conditions of the probation except as otherwise provided by this chapter.
(2) In the event the court, following hearing, refuses to revoke the probation or grant the requested enlargement of conditions thereof because the defendant‘s failure to comply therewith was excusable, the defendant may be granted the period of tolling of the probation for purposes of computation of the remaining probation, if any.
.
This chapter shall not apply when:
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(6)The defendant has been convicted of any offense defined as a felony by the Hawaii Penal Code or has been convicted for any conduct which if perpetrated in this state would be punishable as a felony;
(7) The defendant is found to be a law violator or delinquent child for the commission of any offense defined as a felony by the Hawaii Penal Code or for any conduct which if perpetrated in this state would constitute a felony;
(8) The defendant has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction.
. The District Court Rules of Civil Procedure (“DCRCP“) Rule 7(b)(1) (2006) requires, as follows:
(b) Motions and other papers.
(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(Emphasis added.)
Moreover, the Rules of the District Courts of the State of Hawai‘i (“RDCSH”) Rule 7(a) (2006) states, in pertinent part: “All motions, except when made during a hearing or trial, shall be in writing, shall state the grounds therefor, shall set forth the relief or order sought, and if involving a question of law shall be accompanied by a memorandum in support of the motion.” (Emphasis added.)