PART II. 
PROBATION



 



Note



 



  Part heading amended by L 1986, c 314, §20.



 



Law Journals and Reviews



 



  The Abandonment of Punishment.  16 HBJ 63.



 



§706-620  Authority to withhold sentence of
imprisonment.  A defendant who has been convicted of a crime may be
sentenced to a term of probation unless:



(1)  The crime is first or second degree murder or
attempted first or second degree murder;



(2)  The crime is a class A felony, except class A
felonies defined in chapter 712, part IV, and by section 707-702;



(3)  The defendant is a repeat offender under section
706-606.5;



(4)  The defendant is a felony firearm offender as
defined in section 706-660.1(2); or



(5)  The crime involved the death of or the infliction
of serious or substantial bodily injury upon a child, an elder person, or a
handicapped person under section 706-660.2. [L 1972, c 9, pt of §1; am L 1986,
c 314, §21; am L 1988, c 89, §2; am L 1990, c 67, §8; am L 1994, c 229, §1; am
L 1996, c 197, §1]



 



COMMENTARY ON §706-620



 



  The broad discretion vested in the court by §706-605 with
respect to choosing between and among various authorized dispositions
necessitates some statutory guidelines for the exercise of that discretion. 
This section states a policy in favor of withholding a sentence of imprisonment
unless, as stated, there is (1) undue risk by repetitive criminal behavior, (2)
need for institutionalized correctional facilities, or (3) need to reflect the
seriousness of the crime which, under the circumstances of the case, can only
be accomplished by imprisonment.  The general policy of this section is
supplemented by a statement in the following section of grounds which, while
not controlling the discretion of the court, should be accorded weight in favor
of withholding a sentence of imprisonment.



  Previous Hawaii law, while favoring probation or suspension
of sentence by implication, gave the court a free hand--but no guidance--in
selecting the proper sentence or disposition.



  Every circuit court, when it appears to its satisfaction that
the ends of justice and the best interests of the public as well as of the
defendant in a criminal case will be subserved thereby, may after conviction or
after a plea of guilty or nolo contendere (except in cases of [certain
specified crimes[1]]) suspend the imposition or execution of sentence, in full
or in part, and place the defendant upon probation for such period and upon
such terms and conditions as it may deem best.i[2]



  The Code seeks to provide more definitive criteria for the
exercise of the broad discretion vested in the court.



 



SUPPLEMENTAL COMMENTARY ON §706-620



 



  Act 89, Session Laws 1988, amended this section for the
purpose of mandating harsher penalties for crimes against victims who are less
able to protect themselves.  The legislature found that passage of these
amendments afforded a greater measure of protection for the groups enumerated
in this section.  House Standing Committee Report No. 459-88, Senate Standing
Committee Report No. 2544.



  Act 229, Session Laws 1994, amended this section to allow the
court discretion to sentence a defendant convicted of a class A felony drug
offense (as defined in chapter 712, part IV) to probation.  The legislature
believed that, in certain instances, the public is better served by allowing
judges some discretion in evaluating all appropriate sentencing and treatment
alternatives available for drug offenders.  Conference Committee Report No. 62.



  Act 197, Session Laws 1996, amended this section to retain
probation for the offense of manslaughter, which the Act made a class A
felony.  The legislature believed that courts should still be given the
discretion to sentence a person to probation in "extremely rare
circumstances where strong mitigating circumstances exist".  Conference
Committee Report No. 71.



 



Case Notes



 



  Exercise of court's discretion in applying these standards is
not reviewable on appeal in absence of abuse.  60 H. 314, 588 P.2d 929.



  Defendant's arrest and conviction for two petty misdemeanors
while awaiting sentencing for another conviction demonstrates "undue
risk" justifying imprisonment.  4 H. App. 566, 670 P.2d 834.



  Cited:  73 H. 81, 829 P.2d 1325.



 



__________



§706-620 COMMENTARY:



 



1.  Cf. commentary on §706-605.



 



2.  H.R.S. §711-77.