§706-624  Conditions of probation.  (1) 
Mandatory conditions.  The court shall provide, as an explicit condition of a
sentence of probation:



(a) That the defendant not commit another federal or
state crime or engage in criminal conduct in any foreign jurisdiction or under
military jurisdiction that would constitute a crime under Hawaii law during the
term of probation;



(b) That the defendant report to a probation officer
as directed by the court or the probation officer;



(c) That the defendant remain within the jurisdiction
of the court, unless granted permission to leave by the court or a probation
officer;



(d) That the defendant notify a probation officer
prior to any change in address or employment;



(e) That the defendant notify a probation officer
promptly if arrested or questioned by a law enforcement officer;



(f) That the defendant permit a probation officer to
visit the defendant at the defendant's home or elsewhere as specified by the
court; and



(g) That the defendant make restitution for losses
suffered by the victim or victims if the court has ordered restitution pursuant
to section 706-646.



(2)  Discretionary conditions.  The court may
provide, as further conditions of a sentence of probation, to the extent that
the conditions are reasonably related to the factors set forth in section
706-606 and to the extent that the conditions involve only deprivations of
liberty or property as are reasonably necessary for the purposes indicated in
section 706-606(2), that the defendant:



(a) Serve a term of imprisonment not exceeding two
years in class A felony cases under part IV of chapter 712, eighteen months in
class B felony cases, one year in class C felony cases, six months in
misdemeanor cases, and five days in petty misdemeanor cases; provided that
notwithstanding any other provision of law, any order of imprisonment under
this subsection that provides for prison work release shall require the
defendant to pay thirty per cent of the defendant's gross pay earned during the
prison work release period to satisfy any restitution order.  The payment shall
be handled by the adult probation division and shall be paid to the victim on a
monthly basis;



(b) Perform a specified number of hours of services
to the community as described in section 706-605(1)(d);



(c) Support the defendant's dependents and meet other
family responsibilities;



(d) Pay a fine imposed pursuant to section
706-605(1)(b);



(e) Work conscientiously at suitable employment or
pursue conscientiously a course of study or vocational training that will equip
the defendant for suitable employment;



(f) Refrain from engaging in a specified occupation,
business, or profession bearing a reasonably direct relationship to the conduct
constituting the crime or engage in the specified occupation, business, or
profession only to a stated degree or under stated circumstances;



(g) Refrain from frequenting specified kinds of
places or from associating unnecessarily with specified persons, including but
not limited to the victim of the crime, any witnesses, regardless of whether
they actually testified in the prosecution, law enforcement officers,
co-defendants, or other individuals with whom contact may adversely affect the
rehabilitation or reformation of the person convicted;



(h) Refrain from use of alcohol or any use of
narcotic drugs or controlled substances without a prescription;



(i) Refrain from possessing a firearm, ammunition,
destructive device, or other dangerous weapon;



(j) Undergo available medical or mental health
treatment, including treatment for substance abuse dependency, and remain in a
specified facility if required for that purpose;



(k) Reside in a specified place or area or refrain
from residing in a specified place or area;



(l) Submit to periodic urinalysis or other similar
testing procedure;



(m) Refrain from entering specified geographical
areas without the court's permission;



(n) Refrain from leaving the person's dwelling place
except to go to and from the person's place of employment, the office of the
person's physician or dentist, the probation office, or any other location as
may be approved by the person's probation officer pursuant to court order.  As
used in this paragraph, "dwelling place" includes the person's yard
or, in the case of condominiums, the common elements;



(o) Comply with a specified curfew;



(p) Submit to monitoring by an electronic
monitoring device; or



(q) Satisfy other reasonable conditions as
the court may impose.



(3)  Written statement of conditions.  The
court shall order the defendant at the time of sentencing to sign a written
acknowledgment of receipt of conditions of probation.  The defendant shall be
given a written copy of any requirements imposed pursuant to this section,
stated with sufficient specificity to enable the defendant to comply with the
conditions accordingly. [L 1972, c 9, pt of §1; am L 1973, c 136, §5; am L
1978, c 224, §1; am L 1984, c 257, §2; am L 1986, c 314, §25; am L 1987, c 262,
§1; am L 1989, c 48, §1; am L 2006, c 230, §20]



 



COMMENTARY ON §706-624



 



  Previous Hawaii law provided the sentencing court with
limited guidance or control in the exercise of its discretion in imposing
conditions upon suspension of sentence or upon sentence to probation.  The
circuit court could impose "such terms and conditions as it may deem best"
and was specifically authorized to condition probation on (1) commitment to the
Hawaii Youth Correctional Facility, (2) periodic or intermittent confinement in
a county jail, (3) payment of a fine in a prescribed manner, (4) restitution or
reparation, and (5) providing support to a person for whose support the
defendant is legally responsible.[1]  District courts could condition
suspension of sentence on "such terms and conditions as the magistrate may
deem best."  The magistrate was specifically authorized to condition
suspension on (1) periodic or intermittent confinement in jail, and (2)
attendance at a traffic course or school prescribed by the magistrate.[2]



  The Code seeks to focus on various appropriate conditions
without limiting unduly the exercise of judicial discretion.  Subsection (2)
presents various authorized conditions and subsection (2)(m) is intended to
insure flexibility for the court in devising the imposing conditions, provided
the "conditions reasonably relate to the rehabilitation of the
defendant."



  Subsection (3) continues past statutory authorization for
limited imprisonment as a condition of probation, but sets the maximum at six
months.  Probation and imprisonment are in some respects inconsistent with one
another.  Probation attempts to correct the defendant without interrupting the
defendant's contact with open society.  Imprisonment, on the other hand, is the
isolation of the defendant from open society.  Notwithstanding this area of
inconsistency, the Code recognizes the utility of providing a limited degree of
imprisonment as a possible condition of probation.



  Subsection (3) also continues the past policy of the law by
providing that the court may order that the term of imprisonment required to be
served as a condition of probation be served intermittently.  Thus, the court
may, for example, order that the defendant serve the defendant's period of
confinement at nights or on weekends so that undue economic hardship will not
result to the defendant or members of the defendant's family.



  Subsection (4) is an addition to the law suggested by the
Model Penal Code and accepted in other states.[3]  The intent is to provide the
defendant with notice of what is expected of the defendant in a form which will
not escape the defendant's memory.



 



SUPPLEMENTAL COMMENTARY ON §706-624



 



  Act 136, Session Laws 1973, amended subsection (3) by
deleting a sentence which provided that upon revocation of probation any term
of imprisonment served as part of the probation shall not be credited toward
the subsequent imprisonment.  The Legislature felt that the allowance of credit
would do equity.  Senate Standing Committee Report No. 858, House Standing
Committee Report No. 726.



  Act 224, Session Laws 1978, amended §706-624(3) to authorize
a court when sentencing a felon to probation to impose a term of imprisonment
not exceeding one year as a condition of probation.  The amendment is intended
to give the court the discretion to require a convicted felon to serve a longer
term of imprisonment as a condition of probation than a person convicted of a
misdemeanor.  Under prior law the maximum term of imprisonment, whether for a
felon or for a misdemeanant, was set at six months.



  Act 257, Session Laws 1984, added subsection (2)(g) to allow
a court, as a condition of a suspended sentence or probation, to restrict a
convicted person from entering certain geographical areas without the court's
permission.



  Act 262, Session Laws 1987, amended this section to provide
home detention as an alternative to incarceration.  The use of home detention
is limited.  It is not meant to be used as a means to reduce the prison
population, or as a means to place a prisoner on probation or early release
where the prisoner is in need of intensive supervision or is not eligible or
qualified for early parole.  The legislature does not intend home detention to
be used by a court as justification to sentence a convicted person to probation
if the person would not otherwise be sentenced to probation under the existing
discretionary conditions.  Senate Conference Committee Report No. 61, House
Conference Committee Report No. 35.



  Act 48, Session Laws 1989, required convicted persons on work
release to pay a percentage of their earnings for restitution.  Senate Standing
Committee Report No. 1133, House Standing Committee Report No. 629.



  Act 230, Session Laws 2006, amended this section by, among
other things, (1) expanding the conditions of probation to include prohibiting
the defendant from engaging in criminal conduct in any foreign or military
jurisdiction that would constitute a crime under Hawaii law during the term of
probation; (2) requiring the defendant to make restitution to the victim if
ordered by the court; (3) increasing the terms of imprisonment that may be
imposed as part of a sentence of probation and including five days'
imprisonment for petty misdemeanors; and (4) including ammunition as an item
that a person on probation may be prohibited from possessing.  House Standing
Committee Report No. 665-06.



 



Case Notes



 



  Condition that defendant "refrain from company of people
of questionable character" was not invalid for vagueness.  59 H. 366, 580
P.2d 1282.



  Conditions imposed must be reasonable.  59 H. 378, 581 P.2d
759.



  Where time for performing condition is not specified,
performance is to be within a reasonable time.  59 H. 378, 581 P.2d 759.



  Purpose and intent is to have convicted person make
restitution for criminal acts; court can delegate function of making
recommendations regarding restitution but cannot delegate sentencing function. 
68 H. 292, 711 P.2d 1295.



  Requirement that defendant submit to periodic urinalysis for
drugs was proper.  72 H. 67, 806 P.2d 407.



  If, at a combined sentencing disposition, imprisonment is
imposed as a condition in more than one probation sentence, the period of
imprisonment served for concurrent sentences of probation shall not exceed the
maximum term allowed for a sentence of probation.  97 H. 430, 39 P.3d 557.



  In a sentence of probation, imprisonment may be imposed only
as a condition of the sentence of probation, not to exceed the maximum term
established in subsection (2)(a).  97 H. 430, 39 P.3d 557.



  A sentencing court may not impose discretionary conditions of
probation pursuant to subsection (2) unless there is a factual basis in the
record indicating that such conditions "are reasonably related to the
factors set forth in §706-606" and insofar as such "conditions
involve only deprivations of liberty or property", that they are
reasonably necessary for the purposes indicated in §706-606(2).  103 H. 462, 83
P.3d 725.



  Based on defendant's history, the circumstances of the case,
and the seriousness of the offense, the family court did not exceed the bounds
of reason or disregard rules or principles of law to the substantial detriment
of defendant when it sentenced defendant to undergo sex offender evaluation and
treatment as a condition of probation.  107 H. 117, 111 P.3d 12.



  A straightforward reading of subsection (3) prohibits the
adoption of an "actual notice" rule; thus, under the plain and
unambiguous language of subsection (3), it is mandated that defendants be given
written copies of their conditions.  118 H. 15, 185 P.3d 200.



  In connection with the conditions from this section that are incorporated
by reference in §853-1, the "provision" in subsection (3) that
requires a defendant who is granted probation to be given a written copy of the
conditions, must necessarily apply to a defendant granted a deferred acceptance
of guilty plea, who must adhere to such similar conditions. 118 H. 15, 185
P.3d 200.



  Defendant's probation may not be revoked for failure to
comply with special condition of probation, even though defendant was never
provided with written notice of that condition, as required by subsection (3).
10 H. App. 192, 862 P.2d 295.



  Seven-day term of imprisonment was not unreasonably related
to factors set forth in §706-606, considering nature of offense and
circumstances presented by the record.  10 H. App. 381, 876 P.2d 1331.



  Based on this statute and §706-671(1), sentencing court would
have no authority to sentence defendant to five years' probation and more than
one year in prison; furthermore, the court was required to credit defendant for
time already served in pre-trial detention.  79 H. 317 (App.), 901 P.2d 1296.



  In light of paragraph (n), family court was authorized to
require defendant to undergo polygraph testing as a reasonable condition of the
granting of defendant's deferred acceptance of nolo contendere plea under
§853-1.  92 H. 289 (App.), 990 P.2d 1171.



  Where, pursuant to paragraph (3) (2005), defendant did not
receive a written copy of the conditions of defendant's deferred acceptance of
no contest plea, trial court erred in setting aside plea.  116 H. 38 (App.),
169 P.3d 990.



  Cited:  73 H. 81, 829 P.2d 1325.



  Discussed:  78 H. 343, 893 P.2d 194.



  Mentioned:  74 H. 75, 837 P.2d 776.



 



__________



§706-624 Commentary:



 



1.  H.R.S. §711-77.



 



2.  Id. §710-12.



 



3.  M.P.C. §301.1, Tentative Draft No. 2, comments at 145-146
(1954).