§706-660.1  Sentence of imprisonment for use
of a firearm, semiautomatic firearm, or automatic firearm in a felony. 
(1)  A person convicted of a felony, where the person had a firearm in the
person's possession or threatened its use or used the firearm while engaged in
the commission of the felony, whether the firearm was loaded or not, and
whether operable or not, may in addition to the indeterminate term of
imprisonment provided for the grade of offense be sentenced to a mandatory
minimum term of imprisonment without possibility of parole or probation the
length of which shall be as follows:



(a) For murder in the second degree and attempted
murder in the second degree--up to fifteen years;



(b) For a class A felony--up to ten years;



(c) For a class B felony--up to five years; and



(d) For a class C felony--up to three years.



The sentence of imprisonment for a felony involving
the use of a firearm as provided in this subsection shall not be subject to the
procedure for determining minimum term of imprisonment prescribed under section
706-669; provided further that a person who is imprisoned in a correctional
institution as provided in this subsection shall become subject to the parole
procedure as prescribed in section 706-670 only upon the expiration of the term
of mandatory imprisonment fixed under paragraph (a), (b), (c), or (d).



(2)  A person convicted of a second firearm
felony offense as provided in subsection (1) where the person had a firearm in
the person's possession or threatened its use or used the firearm while engaged
in the commission of the felony, whether the firearm was loaded or not, and
whether operable or not, shall in addition to the indeterminate term of
imprisonment provided for the grade of offense be sentenced to a mandatory minimum
term of imprisonment without possibility of parole or probation the length of
which shall be as follows:



(a) For murder in the second degree and attempted
murder in the second degree--twenty years;



(b) For a class A felony--thirteen years, four months;



(c) For a class B felony--six years, eight months;
and



(d) For a class C felony--three years, four months.



The sentence of imprisonment for a second felony
offense involving the use of a firearm as provided in this subsection shall not
be subject to the procedure for determining a minimum term of imprisonment
prescribed under section 706-669; provided further that a person who is
imprisoned in a correctional institution as provided in this subsection shall
become subject to the parole procedure as prescribed in section 706-670 only
upon expiration of the term of mandatory imprisonment fixed under paragraph
(a), (b), (c), or (d).



(3)  A person convicted of a felony, where the
person had a semiautomatic firearm or automatic firearm in the person's possession
or used or threatened its use while engaged in the commission of the felony,
whether the semiautomatic firearm or automatic firearm was loaded or not, and
whether operable or not, shall in addition to the indeterminate term of
imprisonment provided for the grade of offense be sentenced to a mandatory
minimum term of imprisonment without possibility of parole or probation the
length of which shall be as follows:



(a) For murder in the second degree and attempted
murder in the second degree--twenty years;



(b) For a class A felony--fifteen years;



(c) For a class B felony--ten years; and



(d) For a class C felony--five years.



The sentence of imprisonment for a felony involving
the use of a semiautomatic firearm or automatic firearm as provided in this
subsection shall not be subject to the procedure for determining a minimum term
of imprisonment prescribed under section 706-669; provided further that a
person who is imprisoned in a correctional institution as provided in this
subsection shall become subject to the parole procedure as prescribed in
section 706-670 only upon expiration of the term of mandatory imprisonment
fixed under paragraph (a), (b), (c), or (d).



(4)  In this section:



(a) "Firearm" has the same meaning defined
in section 134-1 except that it does not include "semiautomatic
firearm" or "automatic firearm."



(b) "Automatic firearm" has the same
meaning defined in section 134-1.



(c) "Semiautomatic firearm" means any
firearm that uses the energy of the explosive in a fixed cartridge to extract a
fired cartridge and chamber a fresh cartridge with each single pull of the
trigger. [L 1976, c 204, §3; am L 1987, c 260, §1; am L 1990, c 195, §5; am L
1992, c 57, §1; gen ch 1992]



 



COMMENTARY ON §706-660.1



 



  Designed to deter the use of firearms in the commission of
offenses, this section, together with §706-660, is intended to require the
court to impose a mandatory term of imprisonment in cases of felonies involving
firearms.  Nothing in this or in §706-660, however, is intended to preclude the
court from imposing indeterminate or extended indeterminate sentences, or the
paroling authority from fixing minimum terms of imprisonment, exceeding the
terms provided for in this section.  Senate Conference Committee Report No. 35,
House Conference Committee Report No. 34 (1976).



  Act 260, Session Laws 1987, amended this section by changing
the conditions under which a mandatory sentence can be imposed.  A mandatory
sentence can be imposed regardless of whether the firearm was loaded, operable,
or used as a threat.  The legislature felt that allowing judicial discretion in
imposing a mandatory sentence, for the first firearm offense, will address
concerns that under certain circumstances the mere possession of a firearm may
not justify a mandatory prison term.  Senate Standing Committee Report No. 769,
Senate Conference Committee Report No. 111, House Conference Committee Report
No. 113.



  Act 195, Session Laws 1990, amended this section to address
community concerns in regard to the use of "assault weapons."  Harsh
sentences keep these weapons out of the hands of criminals.  Senate Standing
Committee Report No. 3058.



  Act 57, Session Laws 1992, amended this section to conform
subsection and paragraph designations to the style used in the Code.  House
Standing Committee Report No. 1198-92, Senate Standing Committee Report No.
1947.



 



Law Journals and Reviews



 



  State v. Kumukau:  A Case for the Application of Eighth
Amendment Proportionality Analysis.  13 UH L. Rev. 577.



 



Case Notes



 



  Defendant should be permitted to show that counsel was
ineffective at time of prior convictions.  65 H. 354, 652 P.2d 1119.



  Imposition of consecutive mandatory minimum terms were
authorized; however, court imposing the maximum terms consecutively may abuse
its discretion.  71 H. 218, 787 P.2d 682.



  Defendant who pled no contest to both kidnapping and use of
firearm in commission of kidnapping was properly sentenced under enhanced
sentencing statute for former but not latter crime; legislature did not intend
to impose two mandatory minimum sentences for one use of firearm.  72 H. 496,
824 P.2d 107.



  Appellant had a right under the due process clause, article
I, §5 of the Hawai‘i constitution, to be given reasonable notice of the circuit
court's intention to apply subsection (a) (1985) in sentencing appellant in
connection with kidnapping conviction and to be afforded the opportunity to be
heard with respect thereto. 76 H. 517, 880 P.2d 192.



  Paragraph (1) interpreted to preclude imposition of enhanced
sentencing for defendant convicted of robbery where defendant did not
personally possess, threaten to use, or use firearm while engaged in commission
of that felony.  80 H. 327, 909 P.2d 1142.



  Plain reading of indictment put defendant on notice that
charges against defendant included possession of a firearm and that defendant
could face sentencing enhancement under this section.  80 H. 327, 909 P.2d
1142.



  A sentencing court may order that a mandatory minimum term of
imprisonment imposed under this section be served consecutively to a mandatory
period of imprisonment imposed under §706-606.5 in connection with a separate
felony conviction arising out of a charge contained in the same indictment or
complaint.  84 H. 476, 935 P.2d 1021.



  Imposition of mandatory minimum sentences vacated where
unclear from verdict and record whether jury found defendant guilty as
principal who killed victims with firearm or as accomplice who aided commission
of crime in some other way.  85 H. 462, 946 P.2d 32.



  Trial court erred in imposing mandatory minimum term of
fifteen years under subsection (3) where jury was not instructed on the
statutory definition of semiautomatic pistol and did not expressly find that
defendant used a semiautomatic firearm in the commission of the robbery.  91 H.
33, 979 P.2d 1059.



  Trial court erred in sentencing defendant to mandatory
minimum terms of imprisonment under subsections (1)(c) and (3)(c) where
defendant's theft of a firearm was the entire felony; there was no underlying
felony that defendant committed while possessing or using a firearm; as such,
defendant's conduct fell outside the ambit of this section.  106 H. 441, 106
P.3d 364.



  Where legislature intended to punish defendant under both
§134-6 and this section for use of a firearm in shooting victim, the double
jeopardy clause of the Hawaii constitution was not violated when the trial
court imposed a mandatory minimum term sentence under this section for
attempted second  degree murder when defendant was also convicted of, and
sentenced for, use of a firearm in the commission of the separate felony of
attempted second degree murder.  107 H. 469, 115 P.3d 648.



  Section 706-669 required the Hawaii paroling authority to
conduct its minimum term hearing within six months of defendant's commitment to
the custody of the director of the department of public safety, and the
paroling authority was not jurisdictionally barred by subsection (1) from
fulfilling this statutorily imposed duty.  111 H. 35, 137 P.3d 349.



  Whether felon being sentenced possessed, used, or threatened
to use a firearm while engaged in the commission of a class A felony is a
question of fact to be determined by the court.  7 H. App. 424, 774 P.2d 246.



  Subsection (b) inapplicable where record contained no
evidence that defendant's prior felony conviction involved possession, use, or
threat to use firearm; proper sentencing statute was subsection (a).  9 H. App.
368, 842 P.2d 267.



  Where discussion that defendant was subject to mandatory
minimum terms of imprisonment under this section was conducted at bench outside
of defendant's hearing, defendant was not given constitutionally required
reasonable notice of intended application of this section.  82 H. 158 (App.),
920 P.2d 372.



  Mandatory minimum term of imprisonment specified under
subsection (3) cannot be imposed on a defendant who did not personally possess,
use or threaten to use firearm, simply on the basis of his or her accomplice
liability.  84 H. 112 (App.), 929 P.2d 1362.



  Sentencing court must impose the mandatory minimum term of
imprisonment specified under subsection (3) upon filing of appropriate motion
and finding that defendant had firearm in defendant's possession or used or
threatened its use while engaged in the commission of the felony.  84 H. 112
(App.), 929 P.2d 1362.



  Where use of term "rifle" in complaint did not
indicate whether weapon used was a semi-automatic or automatic firearm, as
opposed to one which was not, complaint failed to properly allege, and thereby
notify defendant of defendant's criminal liability under paragraph (3)(d).  84
H. 352 (App.), 933 P.2d 1386.



  Trial court erred in sentencing defendant to ten years of
incarceration with a mandatory minimum term of ten years under subsection
(3)(c) as convicting defendant of being a felon in possession of a firearm
pursuant to §134-7(b) and sentencing defendant to a mandatory minimum term of
imprisonment pursuant to subsection (3)(c) essentially punished defendant twice
for a single possession of a firearm; a rational interpretation of this section
is that the legislature did not intend its application for felonies where the
entirety of the felonious conduct is the use or possession of a firearm.  107
H. 273 (App.), 112 P.3d 759.