§706-623 - Commentary: 1.

§706-623 Terms of probation. (1) [Subsection
effective until December 31, 2010. For subsection effective January 1, 2011,
see below.] When the court has sentenced a defendant to be placed on
probation, the period of probation shall be as follows, unless the court enters
the reason therefor on the record and sentences the defendant to a shorter
period of probation:

(a) Ten years upon conviction of a class A felony;

(b) Five years upon conviction of a class B or class
C felony;

(c) One year upon conviction of a misdemeanor; except
that upon a conviction under section 586-4, 586-11, or 709‑906, the court
may sentence the defendant to a period of probation not exceeding two years; or

(d) Six months upon conviction of a petty
misdemeanor; provided that up to one year may be imposed upon a finding of good
cause.

The court, on application of a probation officer, on
application of the defendant, or on its own motion, may discharge the defendant
at any time. Prior to granting early discharge, the court shall afford the
prosecuting attorney an opportunity to be heard. The terms of probation
provided in this part, other than in this section, shall not apply to sentences
of probation imposed under section 706-606.3.

(1) [Subsection effective January 1, 2011. For
subsection effective until December 31, 2010, see above.] When the court
has sentenced a defendant to be placed on probation, the period of probation
shall be as follows, unless the court enters the reason therefor on the record
and sentences the defendant to a shorter period of probation:

(a) Ten years upon conviction of a class A felony;

(b) Five years upon conviction of a class B or class
C felony;

(c) One year upon conviction of a misdemeanor; except
that upon a conviction under section 586-4, 586-11, or 709-906, the court may
sentence the defendant to a period of probation not exceeding two years;

(d) Except as provided in paragraph (e), six months
upon conviction of a petty misdemeanor; provided that up to one year may be
imposed upon a finding of good cause; or

(e) Eighteen months to two years upon conviction
under section 291E-61(b)(2), and two years upon a conviction under section
291E-61(b)(3).

(2) When a defendant who is sentenced to
probation has previously been detained in any state or county correctional or
other institution following arrest for the crime for which sentence is imposed,
the period of detention following arrest shall be deducted from the term of
imprisonment if the term is given as a condition of probation. The
pre-sentence report shall contain a certificate showing the length of such
detention of the defendant prior to sentence in any state or county
correctional or other institution, and the certificate shall be annexed to the
official records of the defendant's sentence. [L 1972, c 9, pt of §1; am L
1986, c 314, §24; am L 1989, c 124, §1; am L 1993, c 316, §3; am L 1994, c 229,
§2; am L 1998, c 172, §7; am L 2006, c 230, §19; am L 2009, c 88, §§8, 17(1)]

Note

Repeal of section on June 30, 1995, by L 1993, c 316, §6
extended to June 30, 2001, by L 1995, c 157, §1 and deleted by L 2001, c 127,
§3.

COMMENTARY ON §706-623

This section is in accord with previous Hawaii law providing
a maximum probation period of five years in felony cases.[1] The prior law did
not, however, state a maximum period of suspension of sentence in felony
cases--although, by implication, it could have been read as five years
also.[2] With respect to felony cases, this section of the Code changes the
law by explicitly correlating the maximum period of suspension with the maximum
period of probation. Whether the defendant should be sentenced to probation
because the defendant needs supervision, guidance, assistance, or direction is
an independent question; there is no rational basis for providing a longer
period for suspension than for probation.

Because of the structure of courts in Hawaii, some anomalous
results obtained under prior law. Upon the appeal of a misdemeanor case from
the district court to the circuit court, the defendant, if conviction was
upheld, could have had the defendant's sentence suspended or be sentenced to
probation in the same manner and for the same period as a convicted felon.[3]
Had the misdemeanant not appealed the misdemeanant would have been subject
solely to the district court, the powers of which were more limited in this
area. Prior to this Code, the district court did not have a probation service;
however, the district magistrate could suspend the imposition or execution of
sentence on the terms or conditions the district magistrate deemed best. The
period of suspension could not, however, exceed thirteen months.[4]

The changes which this section makes in the law are obvious.
It provides a maximum period of suspension of sentence or probation for
misdemeanants, petty misdemeanants, and felons regardless of the court handling
the case. Secondly, it would allow probation to be utilized by district court
magistrates if a probation service is established in that court.

SUPPLEMENTAL COMMENTARY ON §706-623

Section 623 of the Proposed Code provided that the period of
suspension or probation shall be two years in the case of a conviction for a
misdemeanor or petty misdemeanor. However, the Legislature reduced the period
to one year in the case of a conviction for a misdemeanor and six months in the
case of a conviction for a petty misdemeanor, finding the proposed two-year
period too severe and inconsistent with the actual length of imprisonment
allowed upon conviction for these offenses. Conference Committee Report No. 2
(1972).

Act 124, Session Laws 1989, required courts to grant
pre-sentence imprisonment credit to defendants who had been sentenced to
imprisonment as a condition of probation and who were detained prior to
sentencing. Senate Standing Committee Report No. 1342.

Act 316, Session Laws 1993, amended this section to provide
that the terms of probation in chapter 706, part II, other than in this
section, shall not apply to sentences of probation imposed under §706-606.3,
which creates an option for the expedited sentencing of persons who have
committed intra-family sexual assault. House Standing Committee Report No.
1174, Senate Standing Committee Report No. 849.

Act 229, Session Laws 1994, amended this section to provide,
inter alia, that when a defendant is sentenced to be placed on probation, the
period of probation shall be ten years upon conviction of a class A felony
unless the court enters the reason therefor on the record and sentences the
defendant to a shorter period of probation. The legislature found that a
longer probationary period for class A felony drug offenders would protect the
public's interests and safety in the unusual cases where probation may be
granted. Conference Committee Report No. 62.

Act 157, Session Laws 1995, extended the sunset date of the
amendment to this section made by Act 316, Session Laws 1993, from June 30,
1995 to June 30, 2001. The legislature found that the expedited sentencing
program served as "a viable alternative in a small number of select
cases" and that the program should continue to be available within the
criminal justice system. However, the legislature believed that there was
insufficient basis to determine whether the program should be made permanent.
Conference Committee Report No. 62.

Act 172, Session Laws 1998, amended this section to allow for
a two-year sentence of probation for domestic violence convictions. Conference
Committee Report No. 80.

Act 127, Session Laws 2001, repealed the sunset date for the
expedited sentencing program of the family court, and in doing so, also
prevented the possibility of the inadvertent repeal of important probation laws
established in connection with the program. The purpose of the program was to
allow for the expeditious removal of the offender from the family home, in
cases of intra-family felony sexual assault or incest, thus allowing the child
to remain in the home. The legislature found that the program applied only to
those offenders found to be "safe to probate" and minimized the
possibility of revictimizing the child by eliminating the need to testify and
requiring treatment and supervision of all members of the child's family. The
legislature further found that the program had been effective and beneficial to
the families concerned. Senate Standing Committee Report No. 1453, Conference
Committee Report No. 114.

Act 230, Session Laws 2006, amended subsection (1) to allow a
six-month extension of probation for a petty misdemeanor if good cause is
found. House Standing Committee Report No. 665-06.

Act 88, Session Laws 2009, amended subsection (1) to
permit probationary periods of eighteen to twenty-four months for persons
convicted under various conditions for driving under the influence. Act 88
continued to promote highway safety by statutorily establishing several
recommendations of the ignition interlock implementation task force established
by Act 171, Session Laws 2008. House Standing Committee Report No. 617,
Conference Committee Report No. 116.

Case Notes

Subsection (2) pertains to periods of detention served
following arrest and prior to the sentence imposed by the court in the first
instance; circuit court did not abuse its discretion in refusing to credit
defendant for time served in conjunction with previous periods of probation.
79 H. 194, 900 P.2d 770.

Section does not authorize trial court to compel a criminal
defendant to execute a promissory note in the amount of any restitution order,
or any balance thereof, as a condition of probation. 83 H. 105, 924 P.2d 1211.

Defendant was not statutorily entitled to credit for time
served under presentence house arrest where conditions and restrictions of
house arrest did not amount to detention in a "state or county
institution"; as defendant enjoyed no visitation, living environment, or
telephone or other communicative restrictions, and was under the direct
supervision of private citizens, including parents, relatives and friends,
defendant was not confined in an "other institution" within the
meaning of subsection (2). 94 H. 315, 13 P.3d 324.

To fall within the ambit of subsection (2), a defendant
detained in an "other institution" must be confined in such a manner
as to be tantamount to imprisonment in a state or county correctional
institution; defendant must be under the direct supervision and control of
state or county actors, or actors under state or county control, such as
subcontracted halfway houses or drug treatment centers. 94 H. 315, 13 P.3d
324.

Cited: 146 F.3d 661.

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§706-623 Commentary:

1. H.R.S. §711-77.

2. Id.

3. Id.

4. H.R.S. §710-12.