§853-4 - Chapter not applicable; when.

§853-4 Chapter not applicable; when.
This chapter shall not apply when:

(1) The offense charged involves the intentional,
knowing, reckless, or negligent killing of another person;

(2) The offense charged is:

(A) A felony that involves the intentional,
knowing, or reckless bodily injury, substantial bodily injury, or serious
bodily injury of another person; or

(B) A misdemeanor or petty misdemeanor that
carries a mandatory minimum sentence and that involves the intentional,
knowing, or reckless bodily injury, substantial bodily injury, or serious
bodily injury of another person;

(3) The offense charged involves a conspiracy or
solicitation to intentionally, knowingly, or recklessly kill another person or
to cause serious bodily injury to another person;

(4) The offense charged is a class A felony;

(5) The offense charged is nonprobationable;

(6) The defendant has been convicted of any offense
defined as a felony by the Hawaii Penal Code or has been convicted for any
conduct that if perpetrated in this State would be punishable as a felony;

(7) The defendant is found to be a law violator or
delinquent child for the commission of any offense defined as a felony by the
Hawaii Penal Code or for any conduct that if perpetrated in this State would
constitute a felony;

(8) The defendant has a prior conviction for a felony
committed in any state, federal, or foreign jurisdiction;

(9) A firearm was used in the commission of the
offense charged;

(10) The defendant is charged with the distribution of
a dangerous, harmful, or detrimental drug to a minor;

(11) The defendant has been charged with a felony
offense and has been previously granted deferred acceptance of guilty plea
status for a prior offense, regardless of whether the period of deferral has
already expired;

(12) The defendant has been charged with a misdemeanor
offense and has been previously granted deferred acceptance of guilty plea
status for a prior felony, misdemeanor, or petty misdemeanor for which the
period of deferral has not yet expired;

(13) The offense charged is:

(A) Escape in the first degree;

(B) Escape in the second degree;

(D) Promoting prison contraband in the second
degree;

(E) Bail jumping in the first degree;

(F) Bail jumping in the second degree;

(G) Bribery;

(H) Bribery of a witness;

(I) Intimidating a witness;

(J) Bribery of or by a juror;

(K) Intimidating a juror;

(L) Jury tampering;

(M) Promoting prostitution in the first
degree;

(N) Promoting prostitution in the second
degree;

(O) Promoting prostitution in the third
degree;

(P) Abuse of family or household members;

(Q) Sexual assault in the second degree;

(R) Sexual assault in the third degree;

(S) A violation of an order issued pursuant to
chapter 586;

(T) Promoting child abuse in the second
degree;

(U) Promoting child abuse in the third degree;

(V) [Subparagraphs (V) and (W) effective
until December 31, 2010. For subparagraphs effective January 1, 2011, see
below.] Electronic enticement of a child in the first degree; or

(W) Electronic enticement of a child in the
second degree;

(V) [Subparagraphs (V) to (X)
effective January 1, 2011. For subparagraphs (V) and (W) effective
until December 31, 2010, see above.] Electronic enticement of
a child in the first degree;

(W) Electronic enticement of a child in the
second degree; or

(X) An offense under part IV, chapter 291E;

(14) The defendant has been charged with:

(A) Knowingly or intentionally falsifying any
report required under chapter 11, subpart B of part XII, with the intent to
circumvent the law or deceive the campaign spending commission; or

(B) Violating section 11-201 or 11-202; or

(15) The defendant holds a commercial driver's license
and has been charged with violating a traffic control law, other than a parking
law, in connection with the operation of any type of motor vehicle.

The court may adopt by rule other criteria in
this area. [L 1976, c 154, pt of §2; am L 1980, c 292, §2; am L 1993, c 130, §4
and c 234, §1; am L 1996, c 201, §3; am L 1997, c 55, §1; am L 1998, c 172, §9;
am L 2000, c 4, §7; am L 2004, c 85, §1; am L 2005, c 203, §25; am L 2006, c
80, §4; am L 2007, c 288, §3; am L 2008, c 171, §11; am L 2009, c 88, §13]

Case Notes

Paragraph (7) is limited to cases involving minors who were
waived for adult prosecution under §571-22. 61 H. 385, 605 P.2d 496.

Subsections are not to be read conjunctively. 69 H. 602, 752
P.2d 597.

As sentencing court limited to alternatives expressly enumerated
in §188-70 and probation not an enumerated alternative, offense of fishing with
gill nets under §188-30.2 nonprobationable; thus, under paragraph (5), deferred
acceptance of no contest plea not allowed for that offense. 87 H. 102, 952
P.2d 390.

The plain and unambiguous language of paragraph (2) does not
prohibit the grant of a deferred acceptance of no contest plea for assault in
the second degree under §707-711 causing "substantial bodily injury",
as statutory prohibition expressly applies only to felony and misdemeanor
assaults inflicting "bodily injury" or "serious bodily
injury". 101 H. 409, 70 P.3d 635.

By the express terms of §712-1207(4) and (5), the offense of
street solicitation under §712-1207(1) is probationable, and thus not
excludable under paragraph (5); appeals court therefore erred in affirming
trial court's refusal to consider defendant's motion for a deferred acceptance
of no contest plea. 116 H. 519, 174 P.3d 358.

When family court implicitly entered a deferred acceptance of
guilty plea pursuant to §853-1 and conditioned deferral upon defendant's
submitting to counseling according to schedule and not committing any
subsequent offenses, family court violated paragraph (2), where defendant was
charged with abuse of family and household member (§709-906). 10 H. App. 148,
861 P.2d 759.

Where the indictment alleges that a "dangerous
instrument" was used in the commission of the offense charged so as to
allow proof that a "firearm" was used, the possibility exists that
the defendant is not eligible for a deferred acceptance of no contest (DANC)
plea; in such cases, if prior to the court's decision on the defendant's motion
for a DANC plea the court is informed that the "dangerous instrument"
was a "firearm", the defendant is not eligible for, and the court is
not authorized to enter, a DANC plea. 101 H. 65 (App.), 62 P.3d 628.

Mentioned: 74 H. 75, 837 P.2d 776.

APPENDIX

1. TABLE OF DISPOSITION --TITLE 38. CRIMES

R = Repealed

_____________________________________________________________

Former § Present § Former § Present §

_____________________________________________________________

C721 R

C722 R

C723 R

C724 R

C725 R

C726 R

727-1 to 24 R

727-25 134-51

728-1 to 7 R

728-9, 10 R

C729 R

730-1 to 12 851-1 to 12

C731 R

732-1 172-13

C733 R

734-1, 2 338-25.5, 25.6

734-3 R

C735 R

C736 R

C737 R

C738 R

C739 R

C740 R

C741 R

C742 R

C743 R

C744 R

C745 R

C746 R

C747-1 to 16 R

747-17 603-23.5

747-18 to 25 R

C748 R

C749 R

C750 R

C751 R

C752 R

C753 R

754-1, 2 852-1, 2

C755 R

C756 R

C757-1, 2 379A-1, 2

C758 R

C759 R

760-1 to 3 R

C761 R

C762 R

C763 R

C764 R

C765 R

C766 R

C767 R

C768 R

769-1 134-52

C770 R

C771 R

C772 R

773-1 to 3 R

774-1 486A-1

2. TRACING TABLE
--TITLE 38 (NEW)

Renumbered Section
Numbers to Original Section Numbers

_____________________________________________________________

Present Renumbered § Initial Renumbered § Original §

_____________________________________________________________

801-1 721-1 705-4

801-2 to 4 721-2 to 4 705-6 to 8

801-5 721-5 705-5

802-1 to 12 722-1 to 12 705C-1 to 12

803-1 to 11 723-1 to 11 708-1 to 11

803-21 to 24 723-21 to 24 708-21 to 24

803-31 to 38 723-31 to 38 708-31 to 38

804-1 to 19 724-1 to 19 709-1 to 19

804-31 to 41 724-31 to 41 709-31 to 41

804-51 724-51 709-51

805-1 to 11 725-1 to 11 710-1 to 11

805-12 725-12 710-15

806-1, 2 726-1, 2 711-1, 2

806-6 to 10 726-6 to 10 711-6 to 10

806-16 to 18 726-16 to 18 711-16 to 18

806-21 to 23 726-21 to 23 711-21 to 23

806-26 to 42 726-26 to 42 711-26 to 42

806-46 to 51 726-46 to 51 711-46 to 51

806-56 726-56 711-56

806-61 to 64 726-61 to 64 711-61 to 64

806-65, 66 726-65, 66 711-67, 68

806-71 726-71 711-84

806-72, 73 726-72, 73 711-78, 79

806-76 726-76 711-96

831-1 to 7 731-1 to 7 716-1 to 7

832-1 to 27 732-1 to 27 713-1 to 27

833-1 to 6 733-1 to 6 713C-1 to 6

834-1 to 6 734-1 to 6 714-1 to 6

835-1 to 8 735-1 to 8 718-1 to 8

836-1 to 6 736-1 to 6 719-1 to 6

841-1 to 19 741-1 to 19 715-1 to 19

842-1 to 12 742-1 to 12 720-1 to 12

851-1 to 12 751-1 to 12 730-1 to 12

852-1, 2 752-1, 2 754-1, 2