§701-101  Applicability to offenses
committed before the effective date of amendments.  (1)  Except as provided
in subsection (2), amendments made by Act 314, Session Laws of Hawaii 1986, to
this Code do not apply to offenses committed before the effective date of Act
314, Session Laws of Hawaii 1986.  Prosecutions for offenses committed before
the effective date of Act 314, Session Laws of Hawaii 1986, are governed by the
prior law, which is continued in effect for that purpose, as if amendments made
by Act 314, Session Laws of Hawaii 1986, to this Code were not in force.  For
purposes of this section, an offense is committed before the effective date of
Act 314, Session Laws of Hawaii 1986, if any of the elements of the offense
occurred before that date.



(2)  In any case pending on or commenced after
the effective date of amendments made by Act 314, Session Laws of Hawaii 1986,
to this Code, involving an offense committed before that date upon the request
of the defendant, and subject to the approval of the court, the provisions of
chapter 706 amended by Act 314, Session Laws of Hawaii 1986, may be applied in
particular cases. [L 1972, c 9, pt of §1; am L 1986, c 314, pt of §1]



 



Revision Note



 



  Reference to subsection (3) in subsection (1) deleted.



 



Cross References



 



  Application of the Penal Code to persons sentenced prior to
its effective date, see L 1975, c 188.



 



COMMENTARY ON §701-101



 



  In general this Code does not apply to offenses committed
before its effective date.  Subsection (1) contains a saving clause which keeps
the prior law in effect to cover offenses committed prior to the effective
date.



  Subsection (2) permits, in trials after the effective date of
the Code, limited exceptions to the foregoing general rule.  Subsection (2)(a)
provides, upon request of the defendant, that defenses and mitigations under
the new Code shall apply in trials of offenses committed prior to its effective
date.  The policy behind this provision is humanitarian.  In enacting a
defense, or in omitting from the Code an offense defined in previous law, the
Legislature will have determined that certain conduct is not criminal, or is
justifiable or excusable.  That conduct should not be penalized after such a
decision is made even though technically it occurred before the effective date
of the decision.  This is, of course, quite a different matter from enacting
retroactive offenses, which would be unconstitutional.  Subsection (2)(b)
covers two points.  First it provides that, upon the request of the defendant
and the approval of the court, the procedural provisions of the Code shall
apply to prior offenses.  These would include provisions on burden of proof and
the procedures provided in Chapter 704 relating to a determination of fitness
to proceed and penal responsibility.  Finally, the subsection permits use of
the new sentencing provisions of this Code for offenses committed before the
effective date.  Again, the rationale is that defendants ought to be allowed
the advantage of the new Code's more enlightened sentencing provisions in light
of a legislative determination that they are preferable to the old.



  Subsection (3) applies the provisions of this Code to release
and discharge of prisoners and to probation of persons sentenced for crimes
committed before its effective date.  Any other rule would create great
administrative difficulties.  The subsection specifies, however, that minimum
and maximum periods shall not be increased.  It also makes clear that the Code
may not be used to attack the procedural or substantive validity of any
judgment of conviction entered prior to the effective date of the Code,
regardless of the fact that appeal time has not run or that an appeal is
pending.  If prior convictions were to be opened to attack on the basis of the
Code, an intolerable burden would be placed on the prosecution and the courts.



 



SUPPLEMENTAL COMMENTARY ON §701-101



 



  Act 314, Session Laws 1986, provided that that act's
amendments to the Code take effect on January 1, 1987.  By delaying the
effective date of the amendments, the legislature intended to give criminal
justice agencies time to determine how the amendments will affect them and to
make provisions for the changes.  Conference Committee Report No. 51-86.



 



Case Notes



 



  "Applicable offense" in subsection 2(a) construed. 
56 H. 129, 531 P.2d 855.



  Subparagraph (2)(b)(ii) does not grant authority to alter
sentences imposed under pre-Hawaii Penal Code.  60 H. 309, 588 P.2d 927.



  Language of subsection (1) means that all elements necessary
to prove a crime charged under Penal Code must be shown to have occurred after
its effective date.  62 H. 364, 616 P.2d 193.



  State may prosecute welfare fraud defendant under an
indictment which covers only part of the duration of a continuing offense.  62
H. 364, 616 P.2d 193.



  Section 701-108(6)(a) does not apply as a "defense"
for purposes of subsection (2).  62 H. 474, 617 P.2d 84.