§701-108 - Time limitations.

§701-108 Time limitations. (1) A
prosecution for murder, murder in the first and second degrees, attempted
murder, and attempted murder in the first and second degrees, criminal
conspiracy to commit murder in any degree, and criminal solicitation to commit
murder in any degree may be commenced at any time.

(2) Except as otherwise provided in this
section, prosecutions for other offenses are subject to the following periods
of limitation:

(a) A prosecution for manslaughter where the death
was not caused by the operation of a motor vehicle must be commenced within ten
years after it is committed;

(b) A prosecution for a class A felony must be
commenced within six years after it is committed;

(d) A prosecution for any other felony must be
commenced within three years after it is committed;

(e) A prosecution for a misdemeanor or parking
violation must be commenced within two years after it is committed; and

(f) A prosecution for a petty misdemeanor or a
violation other than a parking violation must be commenced within one year
after it is committed.

(3) If the period prescribed in subsection (2)
has expired, a prosecution may nevertheless be commenced for:

(a) Any offense an element of which is either fraud,
deception, as defined in section 708-800, or a breach of fiduciary obligation
within three years after discovery of the offense by an aggrieved party or by a
person who has a legal duty to represent an aggrieved party and who is oneself
not a party to the offense, but in no case shall this provision extend the
period of limitation by more than six years from the expiration of the period
of limitation prescribed in subsection (2);

(b) Any offense based on misconduct in office by a
public officer or employee at any time when the defendant is in public office
or employment or within two years thereafter, but in no case shall this
provision extend the period of limitation by more than three years from the
expiration of the period of limitation prescribed in subsection (2); and

(c) Any felony offense involving evidence containing
deoxyribonucleic acid from the offender, if a test confirming the presence of
deoxyribonucleic acid is performed prior to expiration of the period of
limitation prescribed in subsection (2), but in no case shall this provision
extend the period of limitation by more than ten years from the expiration of
the period of limitation prescribed in subsection (2).

(4) An offense is committed either when every
element occurs, or, if a legislative purpose to prohibit a continuing course of
conduct plainly appears, at the time when the course of conduct or the
defendant's complicity therein is terminated. Time starts to run on the day
after the offense is committed.

(5) A prosecution is commenced either when an
indictment is found or a complaint filed, or when an arrest warrant or other
process is issued, provided that such warrant or process is executed without
unreasonable delay.

(6) The period of limitation does not run:

(a) During any time when the accused is continuously
absent from the State or has no reasonably ascertainable place of abode or work
within the State, but in no case shall this provision extend the period of
limitation by more than four years from the expiration of the period of
limitation prescribed in subsection (2);

(b) During any time when a prosecution against the
accused for the same conduct is pending in this State; or

(c) For any felony offense under chapter 707, part V
or VI, during any time when the victim is alive and under eighteen years of
age. [L 1972, c 9, pt of §1; am L 1974, c 93, §1; am L 1982, c 28, §2; am L
1983, c 63, §1; am L 1986, c 296, §1; am L 1987, c 181, §2; am L 1993, c 186,
§1; gen ch 1993; am L 1995, c 171, §1; am L 1996, c 148, §1; am L 1997, c 149,
§1; am L 2001, c 33, §2; am L 2005, c 112, §2; am L 2006, c 99, §1]

Cross References

Elements of an offense, see §702-205.

COMMENTARY ON §701-108

Several important policies underlie the proposed statute of
limitations. The most persuasive is the fact that after a certain time,
evidence tending to prove or disprove criminal liability becomes stale.
Witnesses die, move away, or forget; physical evidence disintegrates, and it
becomes impossible to ascertain what actually happened. Statutes of
limitations may also be viewed as statutes of repose. Even a person who has
committed a penal act is entitled, after the passage of some time, to conduct
the person's affairs on the assumption that they will not be disrupted by a
prosecution. This is particularly true in the case of someone who has ceased
to engage in penal activity and is leading a law-abiding life. These policies
explain why, even when a time limitation is extended by one of the provisions
in this section, an upper limit is set.

Subsection (1) follows previous Hawaii law in providing no
time limitation on murder.[1] Here, the community's justifiable desire to
require the murderer to pay for the murderer's act outweighs the policies
discussed above.

Subsection (2) represents a change in the prior law. The
limitation period was two years, but there were many statutory exceptions:

No person shall be prosecuted for any offense under the laws of
the State, except murder in the first and second degrees, manslaughter, rape,
assault with intent to ravish, carnal abuse of a minor under the age of twelve
years, kidnapping, arson in the first and second degrees, burglary in the first
and second degrees, forgery, robbery in the first and second degrees, larceny
in the first degree, giving, promising or receiving a bribe, extortion in the
first and second degrees, compounding an offense punishable by imprisonment for
life, and embezzlement, unless the prosecution for the offense is commenced
within two years next after the commission thereof. Nothing herein contained
shall bar any prosecution against any person who flees from justice, or absents
himself from the State, or so secretes himself that he cannot be found by the
officers of the law, so that process cannot be served upon him.[2]

In accord with the policies articulated above, subsection (2)
sets more realistic time limitations than prior law. For the most serious
class of felonies, other than murder, a six-year period is set, while for the
other classes of felonies, three years is deemed sufficient. Consistent with
prior law, a two- year period is set for misdemeanors. Prosecution for petty
misdemeanors and violations must be commenced within one year.

Subsection (3) seeks to identify situations in which the
statute of limitations ought to be tolled. In the cases of fraud, breach of
fiduciary obligation, and misconduct in public office, the difficulties of
detecting the offense suggest that an extension of the normal time is
required. Thus, in the case of fraud and breach of fiduciary obligation, a
prosecution may be commenced within one year after discovery, and a prosecution
for offenses relating to misconduct in office may be commenced at any time when
the defendant is in public office, or within two years thereafter. In both
cases, however, the applicable time limitation may not be extended by more than
three years.

Subsection (4) defines the time at which an offense is to be
considered as committed, and subsection (5) defines the time at which a
prosecution is commenced. Subsection (6) tolls the statute of limitations for
the period when the accused is continuously absent from the State or has no
reasonably ascertainable place of abode therein. This continues the previous
law. Note, however, that again the time period may not be extended by more
than three years. This seems fair in light of procedures available for
extradition. Subsection (6) also declares that the statute of limitations does
not run during any time when a prosecution based on the same conduct is pending
against the accused. This prevents any claim that the statute has run
preventing retrial after reversal on appeal or dismissal for some reason which
would not make retrial a matter of double jeopardy.

SUPPLEMENTAL COMMENTARY ON §701-108

Act 93, Session Laws 1974, amended subsection (2)(c) to
include within the two-year time limitation period the commencement of a
prosecution for a parking violation.

Act 28, Session Laws 1982, deleted from subsection (2), the
reference to §707-740, a section repealed by Act 213, Session Laws 1981.

Act 63, Session Laws 1983, amended subsection (5) to allow
prosecution to commence by the filing of a complaint, thereby conforming the
section to the 1982 amendment to Article I, Section 10 of the Hawaii State
Constitution and to the procedure adopted by the state supreme court, which
made the complaint the charging document following a preliminary hearing.
Senate Standing Committee Report No. 349, House Standing Committee Report No.
757.

Act 296, Session Laws 1986, increased the limitations period
from one to two years after discovery for offenses involving fraud or breach of
fiduciary duty. Those cases are difficult to prosecute because misleading or
fraudulent bookkeeping and records often hide criminal wrongdoing. The
extended limitations period allows authorities more time to collect and analyze
those records and documents to determine the nature and extent of criminal
activity. Senate Standing Committee Report No. 1084-86.

Act 181, Session Laws 1987, added language to this section to
reflect the recently created statutory murder and attempted murder crimes.
These crimes are murder in the first and second degree and attempted murder in
the first and second degree. Senate Standing Committee Report No. 1130.

Act 186, Session Laws 1993, amended this section to provide
for a nonvehicular manslaughter limitations period of ten years. Conference
Committee Report No. 67.

Act 171, Session Laws 1995, amended subsection (6) to toll
the statute of limitations for bringing a prosecution regarding sexual offenses
or child abuse during the time the victim is alive and less than eighteen years
of age. The extension of the statute of limitations recognized that child
victims may be unable to report crimes to law enforcement within the existing
statute of limitations time period. House Standing Committee Report No. 693,
Senate Standing Committee Report No. 1205.

Act 148, Session Laws 1996, increased the limitations period
for offenses involving fraud or a breach of fiduciary obligation from two to
three years after discovery of the offense. The legislature recognized that
these complex crimes can take years to uncover, investigate and prove, and can
involve numerous victims and large losses. The Act also clarified language
relating to the extension of the statute of limitations for offenses involving
fraud or a breach of fiduciary obligation, offenses based on misconduct in
office by a public officer or employee, and cases in which the accused is
continuously absent from the State or has no reasonably ascertainable place of
abode or work within the State, by stating that the extensions shall begin from
the expiration of the period of limitation prescribed in subsection (2). House
Standing Committee Report No. 1015-96, Senate Standing Committee Report No.
2030.

Act 149, Session Laws 1997, amended subsection (1) to include
criminal conspiracy to commit murder and criminal solicitation to commit murder
as offenses for which prosecution may be commenced at any time. The
legislature found that the offense of murder warranted punishment under the
Code sufficient to fit the grave consequences of the crime, and that persons
found guilty of conspiracy or solicitation to commit murder should also be
penalized to a similarly serious degree. Senate Standing Committee Report No.
1600.

Act 33, Session Laws 2001, strengthened the State's computer
crime laws by, among other things, setting the statute of limitations for
[felony] computer-related crimes to within five years after the crime was
committed. The legislature found that society was adopting at a rapid pace,
computer technology to conduct activities of daily living. Computer technology
was being utilized not only for purposes of business and recreation, but also
for criminal activity. Thus, computer-related criminal activity was on the
rise as society's dependence on computers increased. Senate Standing Committee
Report No. 1508.

Act 112, Session Laws 2005, amended this section by extending
the statute of limitations for felony cases where deoxyribonucleic acid
evidence has been recovered. Conference Committee Report No. 184.

Act 99, Session Laws 2006, added crimes that include
deception as an element to the group of offenses for which the date of
discovery is used to calculate the time limitations within which the crime must
be charged. Senate Standing Committee Report No. 2244, House Standing
Committee Report No. 1119-06.

Case Notes

Date of the most recent act of a continuing offense governs
application of statute of limitations. 62 H. 364, 616 P.2d 193.

Statute of limitations of prior law held applicable to
defendant absent from State. 62 H. 474, 617 P.2d 84.

Subsection (6)(a) does not apply as a "defense" for
purposes of §701-101(2). 62 H. 474, 617 P.2d 84.

Under subsection (4), an offense of a continuing nature such
as the possession of mace is committed when the course of conduct is
terminated. 63 H. 345, 627 P.2d 776.

Subsection (5) does not define when adversary criminal
judicial proceedings commence for purpose of determining when the sixth
amendment right to counsel attaches. 63 H. 354, 628 P.2d 1018.

Court correctly concluded that statute of limitations for
conspiracy to commit murder is three years (under 1993 version of this
section). 84 H. 280, 933 P.2d 617.

Where defendant entered no contest plea knowingly and
voluntarily, defendant effectively waived the statute of limitations upon entry
of plea. 103 H. 214, 81 P.3d 394.

For purposes of the tolling provisions of subsection (3)(a),
the fraudulent component of §708-830(2) is the use of deception in the taking
of property. 111 H. 17, 137 P.3d 331.

When the charged offense is theft by deception, as defined by
§708-830(2), and the prosecution is relying on the tolling provision of
subsection (3)(a), relating to "any offense an element of which is
fraud", the prosecution must not only allege the timely date or dates of
commission of the offense in the indictment, but also the earliest date of the
"discovery of the offense by an aggrieved party or a person who has a
legal duty to represent the aggrieved party"; where indictment failed to
aver the date of the earliest discovery of the alleged offenses, trial court order
dismissing the indictment with prejudice affirmed. 111 H. 17, 137 P.3d 331.

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§701-108 Commentary:

1. H.R.S. §707-1.

2. Id.