§706-601  Pre-sentence diagnosis and report. 
(1)  Except as provided in subsections (3) and (4), the court shall order a
pre- sentence correctional diagnosis of the defendant and accord due
consideration to a written report of the diagnosis before imposing sentence
where:



(a) The defendant has been convicted of a felony; or



(b) The defendant is less than twenty-two years of
age and has been convicted of a crime.



(2)  The court may order a pre-sentence
diagnosis in any other case.



(3)  With the consent of the court, the
requirement of a pre-sentence diagnosis may be waived by agreement of both the
defendant and the prosecuting attorney.



(4)  The court on its own motion may waive a
pre-sentence correctional diagnosis where:



(a) A prior pre-sentence diagnosis was completed
within one year preceding the sentencing in the instant case;



(b) The defendant is being sentenced for murder or
attempted murder in any degree; or



(c) The sentence was agreed to by the parties and
approved by the court under rule 11 of the Hawaii rules of penal procedure. [L
1972, c 9, pt of §1; am L 1986, c 314, §11; am L 1997, c 275, §1]



 



COMMENTARY ON §706-601



 



  In any system which vests discretion in the sentencing
authority, it is necessary that the authority have sufficient and accurate
information so that it may rationally exercise its discretion.  In our penal
system which vests sentencing authority in the court, it is extremely unlikely
that without a special provision providing for a pre-sentence investigation and
report that the relevant information will be brought to the attention of the
court.  The vast majority of cases are disposed of upon pleas of guilty.  It is
obvious that in such cases the court has no information upon which to select
between and among various sentencing alternatives.  Even where the case is
tried before the sentencing judge, the evidence at trial is not likely to
produce information relevant to sentencing a subsequently convicted defendant. 
Relevant information, such as the defendant's history of delinquency or
criminality, physical and mental condition, family situation and background,
economic status, education, occupation, and personal habits, are not likely to
be fully explored in an adversary proceeding designed to decide the issue of
guilt.



  This section requires a pre-sentence investigation in the
cases specified; it allows the court to order a pre-sentence investigation in
any other case.  In a system with unlimited resources, a pre-sentence
investigation and report might be required in the case of every convicted
defendant regardless of whether the offense was a felony, misdemeanor, or
violation.  However, realizing the limitations of the State's resources, the
Code has required a pre-sentence investigation and report only in cases of felons
and youthful offenders.  This requirement is in substantial accord with recent
studies on sentencing.[1]



  This section is also in substantial accord with Hawaii rules
of procedure governing criminal cases in the circuit courts,[2] which have
jurisdiction over felony cases and over some misdemeanor cases (those which are
tried before a jury).  However, it is left to the circuit court's discretion
whether a pre-sentence investigation and report is or is not ordered.  In
candor, it must be pointed out that as a regular practice such reports are
ordered and the Code in large degree brings the law into conformity with
existing circuit court practice.



  District courts, which have original jurisdiction over
misdemeanor cases, presently have no procedure or authorization for
pre-sentence investigation.  Supplemental services will have to be added to the
district courts, either by legislation, court rule, or administratively, so the
pre-sentence investigators (probation officers or otherwise) are available in
all courts which would be required or authorized to take into consideration a
pre-sentence report before imposing sentence.



  Subsection (3) was added to the Code to accommodate the
request of some defendants for immediate sentence.  The court has sometimes granted
this request where the offense is of a very minor nature and the court is
inclined to impose only a fine or to suspend imposition of sentence.



 



SUPPLEMENTAL COMMENTARY ON §706-601



 



  In 1972 the Legislature, when enacting the Penal Code,
substituted the phrase "pre-sentence correctional diagnosis" for
"pre-sentence investigation," in order to conform the language to the
new correctional procedures provided for with the establishment of the
Correctional Diagnostic Center.  The Conference Committee stated that "a
'correctional diagnosis' will provide a more comprehensive psychiatric, social,
and correctional analysis of a defendant than previously provided with a
'pre-sentence investigation'."  Conference Committee Report No. 2 (1972).



  Act 275, Session Laws 1997, amended this section to allow
courts to waive the pre-sentence diagnosis and report under certain specified
circumstances.  The legislature found that under current law, a pre-sentence
diagnosis and report must be prepared for all individuals convicted of a felony
offense and all convicted defendants less than twenty-two years of age, unless
the report is waived by both the defendant and the prosecuting attorney. 
However, in certain cases, the sentence to be imposed is predetermined due to
plea agreements or sentencing guidelines; thus, the diagnosis and report are
unnecessary.  The amendment expedites the disposal of criminal cases and
reduces unnecessary delays in sentencing.  Conference Committee Report No. 72,
House Standing Committee Report No. 1650.



 



Rules of Court



 



  Plea agreements, see HRPP rule 11(e).



 



Case Notes



 



  Commentary quoted in holding that it was proper to include in
a pre-sentence diagnosis and report the defendant's juvenile court record for
consideration by the sentencing court.  56 H. 75, 527 P.2d 1269 (1974).



  In extended sentence hearing, pre-sentence report held
inadmissible hearsay.  56 H. 628, 548 P.2d 632.



  Cited as requiring court to consider pre-sentence report
before sentencing for a felony.  60 H. 100, 588 P.2d 409.



  In resentencing cases, ordering of updated pre-sentence
report is within discretion of court.  61 H. 226, 602 P.2d 13.



  No merit to defendant's point on appeal that contended that
circuit court violated right to due process when it assumed role of prosecutor
and attempted to establish a record on which to base a minimum mandatory
sentence; circuit court was mandated by this section and §706-606.5 to do what
it did.  9 H. App. 583, 854 P.2d 238.



  Pre-sentence report sufficiently complied with §706-602 and
chapter 706 was not violated, where defendant asserted that court did not order
or receive a pre-sentence correctional diagnosis and report as required by
subsection (1)(a), therefore, since the information required under §706-602 was
not furnished to the court for its consideration in imposing sentence, the
sentences were not imposed in accordance with provisions of chapter 706 and
were illegal.  10 H. App. 535, 880 P.2d 208.



  Cited:  73 H. 259, 831 P.2d 523.



 



__________



§706-601 Commentary:



 



1.  American Bar Association Project on Minimum Standards for
Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures
§4.1 (Tentative Draft, 1967) hereinafter cited in this chapter as A.B.A.
Standards; National Council on Crime and Delinquency, Model Sentencing Act 2
(1963) [hereinafter cited in this chapter as M.S.A.]; and M.P.C. §7.07(1).



 



2.  H.R.Cr.P., Rules 1, 32, and 54 (1960).