§853-1  Deferred acceptance of guilty plea
or nolo contendere plea; discharge and dismissal, expungement of records. 
(a)  Upon proper motion as provided by this chapter:



(1)  When a defendant voluntarily pleads guilty or
nolo contendere, prior to commencement of trial, to a felony, misdemeanor, or
petty misdemeanor;



(2)  It appears to the court that the defendant is not
likely again to engage in a criminal course of conduct; and



(3)  The ends of justice and the welfare of society do
not require that the defendant shall presently suffer the penalty imposed by
law,



the court, without accepting the plea of nolo
contendere or entering a judgment of guilt and with the consent of the
defendant and after considering the recommendations, if any, of the prosecutor,
may defer further proceedings.



(b)  The proceedings may be deferred upon any
of the conditions specified by section 706-624.  As a further condition, the
court shall impose a compensation fee pursuant to section 351-62.6 upon every
defendant who has entered a plea of guilty or nolo contendere to a petty
misdemeanor, misdemeanor, or felony; provided that the court shall waive the
imposition of a compensation fee, if it finds that the defendant is unable to
pay the compensation fee.  The court may defer the proceedings for a period of
time as the court shall direct but in no case to exceed the maximum sentence
allowable; provided that, if the defendant has entered a plea of guilty or nolo
contendere to a petty misdemeanor, the court may defer the proceedings for a
period not to exceed one year.  The defendant may be subject to bail or
recognizance at the court's discretion during the period during which the
proceedings are deferred.



(c)  Upon the defendant's completion of the
period designated by the court and in compliance with the terms and conditions
established, the court shall discharge the defendant and dismiss the charge
against the defendant.



(d)  Discharge of the defendant and dismissal
of the charge against the defendant under this section shall be without
adjudication of guilt, shall eliminate any civil admission of guilt, and is not
a conviction.



(e)  Upon discharge of the defendant and
dismissal of the charge against the defendant under this section, the defendant
may apply for expungement not less than one year following discharge, pursuant
to section 831-3.2. [L 1976, c 154, pt of §2; am L 1979, c 147, §1 and c 155,
§1; am L 1980, c 232, §42; am L 1983, c 290, §2(1), (2); gen ch 1985; am L
1988, c 184, §1; am L 2000, c 115, §3]



 



Case Notes



 



  Deferred acceptance of guilty plea constitutes a form of
punishment under the Assimilated Crimes Act.  866 F.2d 315.



  Procedure (under earlier program) does not impose an
impermissible burden on exercise of right of trial by jury.  58 H. 304, 568
P.2d 1194.



  Under procedures established before enactment of this
section, it was held that a motion for DAG plea was not seasonably made after a
plea of not guilty and a trial resulting in a finding of guilt.  58 H. 412, 570
P.2d 1323.



  Denial of motion for DAGP is within discretion of trial
court.  59 H. 562, 584 P.2d 126.



  DAG plea is not a conviction and may not be used for
impeachment purposes.  62 H. 259, 614 P.2d 386.



  Did not limit trial court's power to accept nolo contendere
plea to cases where plea is entered before trial begins.  66 H. 364, 662 P.2d
212.



  Deferred acceptance of guilty and no contest pleas are not
appealable.  69 H. 438, 746 P.2d 568.



  The tolling provisions under §706-627 apply to deferral
periods pursuant to a deferred acceptance of guilty plea.  92 H. 322, 991 P.2d
832.



  A conditional plea under HRPP rule 11(a)(2) is inconsistent
with the granting of a deferred acceptance of guilty plea pursuant to this
chapter; defendant's appeal from trial court's order granting motion for deferred
plea did not provide a jurisdictional basis for review of an adverse pretrial
suppression order purportedly preserved by the trial court's allowance of
defendant's conditional plea.  95 H. 309, 22 P.3d 588.



  Where defendant entered no contest plea after trial
commenced, pursuant to subsection (a)(1), defendant was not eligible for plea
deferral; only available remedy to defendant was to permit defendant to
withdraw plea.  95 H. 398, 23 P.3d 733.



  In connection with the conditions from §706-624 that are
incorporated by reference in this section, the "provision" in
§706-624(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.



  Where State did not file a written motion to revoke
defendant's deferred acceptance of guilty plea, the probationary period was not
tolled; thus, as the deferment period had expired two months earlier, trial
court lacked jurisdiction to revoke defendant's deferred acceptance of guilty
plea.  118 H. 15, 185 P.3d 200.



  Granting or denial of motion for DAG plea is within
discretion of trial court and will not be disturbed unless there has been
manifest abuse.  1 H. App. 157, 616 P.2d 227.



  This chapter does not prohibit trial court's inherent power
to grant or deny deferred acceptance of nolo contendere pleas.  1 H. App. 602,
623 P.2d 892.



  Subsection (a)(1)'s requirement that defendant plead guilty
"prior to commencement of trial" means that it be done prior to
commencement of first trial; defendant's plea of guilty after first trial and
before new trial did not satisfy that requirement.  10 H. App. 31, 859 P.2d
1380.



  In light of §706-624(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 this
section.  92 H. 289 (App.), 990 P.2d 1171.



  Mentioned:  74 H. 75, 837 P.2d 776; 10 H. App. 148, 861 P.2d
759.