§804-4  When a matter of right.  (a)  If
the charge is for an offense for which bail is allowable under section 804-3,
the defendant may be admitted to bail before conviction as a matter of right. 
Except for section 712-1207(7), bail shall be allowed for any person charged
under section 712-1207 only subject to the mandatory condition that the person
observe geographic restrictions that prohibit the defendant from entering or
remaining on public property, in Waikiki and other areas in the State designated
by county ordinance during the hours from 6 p.m. to 6 a.m.; and provided
further that nothing contained in this subsection shall be construed as
prohibiting the imposition of stricter geographic restrictions under section
804-7.1.  The right to bail shall continue after conviction of a misdemeanor,
petty misdemeanor, or violation, and release on bail may continue, in the
discretion of the court, after conviction of a felony until the final
determination of any motion for a new trial, appeal, habeas corpus, or other
proceedings that are made, taken, issued, or allowed for the purpose of
securing a review of the rulings, verdict, judgment, sentence, or other
proceedings of any court or jury in or by which the defendant has been
arraigned, tried, convicted, or sentenced; provided that:



(1)  No bail shall be allowed after conviction and
prior to sentencing in cases where bail was not available under section 804-3,
or where bail was denied or revoked before conviction;



(2)  No bail shall be allowed pending appeal of a
felony conviction where a sentence of imprisonment has been imposed; and



(3)  No bail shall be allowed pending appeal of a
conviction for a violation of section 712-1207, unless the court finds, based
on the defendant's record, that the defendant may be admitted to bail subject
to the mandatory condition that the person observe geographic restrictions that
prohibit the defendant from entering or walking along the public streets or
sidewalks of Waikiki or other areas in the State designated by county ordinance
pursuant to section 712-1207 during the hours from 6 p.m. to 6 a.m.



Notwithstanding any other provision of law to the
contrary, any person who violates these bail restrictions shall have the
person's bail revoked after hearing and shall be imprisoned forthwith.



(b)  The court shall order that a person who
has been found guilty of an offense and sentenced to a term of imprisonment,
and who has filed an appeal or a petition for a writ of certiorari, be
detained, unless the court finds:



(1)  By clear and convincing evidence that the person
is not likely to flee or pose a danger to the safety of any other person or the
community if released; and



(2)  That the appeal is not for purpose of delay and
raises a substantial question of law or fact likely to result in reversal or an
order for a new trial.



If the court makes these findings, the court shall
order the release of the person in accordance with section 804-7.1.  No
defendant entitled to bail, whether bailed or not, shall be subject, without
the defendant's written consent, to the operation of any sentence passed upon
the defendant, while any proceedings to procure a review of any action of the
trial court or jury in the premises are pending and undetermined, except as
provided in section 641-14(a) or section 712-1207. [L 1892, c 32, §2; RL 1925,
§3979; am L 1925, c 228, §1; RL 1935, §5433; RL 1945, §10734; RL 1955, §256-4;
am L 1957, c 282, §8; HRS §709-4; ren L 1972, c 9, pt of §1; am L 1972, c 109,
§1(a); am L 1980, c 242, §3; gen ch 1985; am L 1987, c 139, §8; am L 1988, c
141, §61; am L 1989, c 261, §23; am L 1990, c 34, §39; am L 1998, c 149, §3; am
L 2000, c 143, §2]



 



Cross References



 



  See Const. Art. I, §12.



  Minors, see §571-32(f).



 



Rules of Court



 



  Release pending appeal, see HRAP rule 9.



  See HRPP rules 5(a), 46.



 



Law Journals and Reviews



 



  The Protection of Individual Rights Under Hawai`i's
Constitution.  14 UH L. Rev. 311.



 



Case Notes



 



  Not applicable to habeas corpus after conviction.  18 H. 473.



  Where justified by facts and circumstances, delay in
releasing person on bail is permissible.  61 H. 291, 602 P.2d 933.



  One arrested for a petty misdemeanor or misdemeanor has not
an absolute right to immediate release but a right to release without
unnecessary delay upon payment of bail.  62 H. 79, 611 P.2d 130.



  Provision denying bail pending appeal to convicted felon
sentenced to imprisonment was constitutional.  66 H. 82, 657 P.2d 464.



  Defendant did not satisfy requirements for release on bail. 
69 H. 509, 750 P.2d 78.



  Accused misdemeanant, petty misdemeanant, or law violator on
bail is entitled to bail as a matter of right after conviction and pending
appellate review; requirements of paragraphs (1) and (2) apply only to
convicted felons.  74 H. 343, 845 P.2d 547.



  Circuit court did not have jurisdiction to issue a bench
warrant based upon the purported violation of a condition of probation, nor
could the court revoke defendant's probation on that basis; when a convicted
defendant is released on bail pending appeal, the circuit court is temporarily
without jurisdiction under the probationary sentence that is the subject of the
defendant's appeal.  79 H. 194, 900 P.2d 770.



  Four conditions must be met for person convicted of criminal
offense to qualify for release on bail pending appeal.  86 H. 1, 946 P.2d 955.