§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 to be determined by the court at sentencing in class A felony cases under section 707-702, not exceeding two years in class A felony cases under part IV of chapter 712, not exceeding eighteen months in class B felony cases, not exceeding one year in class C felony cases, not exceeding six months in misdemeanor cases, and not exceeding 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 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 assessment and treatment, including assessment and 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;
(q) Submit to a search by any probation officer, with or without a warrant, of the defendant's person, residence, vehicle, or other sites or property under the defendant's control, based upon the probation officer's reasonable suspicion that illicit substances or contraband may be found on the person or in the place to be searched;
(r) Sign a waiver of extradition and pay extradition costs as determined and ordered by the court;
(s) Comply with a service plan developed using current assessment tools; and
(t) 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; am L 2012, c 292, §3; am L 2016, c 231, §23]
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 subsection (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.
Act 292, Session Laws 2012, amended subsection (2) by providing the courts with discretion when determining terms of imprisonment for various offenses and stipulating maximum terms of imprisonment for these offenses. The legislature noted that traffic related fatalities were a serious issue and that persons convicted of certain offenses involving traffic fatalities should be dealt with accordingly. Further, the legislature believed that a judge should continue to hold the discretionary authority regarding the term of imprisonment as a condition of probation for a person convicted of manslaughter. Finally, allowing the courts the discretion to impose terms of imprisonment for certain violations up to a maximum period would help to ensure the safety of Hawaii's roadways. Senate Standing Committee Report No. 3229, Conference Committee Report No. 44-12.
Act 231, Session Laws 2016, amended subsection (2) to authorize a court, among other things, to add, as a condition for probation under certain circumstances, that a defendant submit to searches by a probation officer of the defendant's person, residence, vehicle, or other sites and property under the defendant's control, and to sign a waiver of extradition and pay extradition costs as the court may determine. Conference Committee Report No. 138-16.
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 (1978).
Conditions imposed must be reasonable. 59 H. 378, 581 P.2d 759 (1978).
Where time for performing condition is not specified, performance is to be within a reasonable time. 59 H. 378, 581 P.2d 759 (1978).
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 (1985).
Requirement that defendant submit to periodic urinalysis for drugs was proper. 72 H. 67, 806 P.2d 407 (1991).
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 (2002).
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 (2002).
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 (2004).
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 (2005).
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 (2008).
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 (2008).
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 (1993).
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 (1994).
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 (1995).
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 (1999).
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 (2007).
Family court did not abuse its discretion by requiring defendant to attend domestic violence counseling as a condition of defendant's probation; where defendant was charged with endangering the welfare of an incompetent person under §709-905 based on substantial evidence that defendant assaulted complainant, under subsection (2), the court was free to impose discretionary conditions of probation that are reasonably related to the factors set forth in §706-606 and to the extent that the conditions involve only deprivations of liberty as is reasonably necessary for the purposes indicated in §706-606(2). 121 H. 228 (App.), 216 P.3d 1251 (2009).
Because there was no provision in §706-605 for the imposition of anger management or other treatment programs, but subsection (2)(j) authorized the imposition of, inter alia, mental health treatment as a discretionary term of probation, district court erred by sentencing defendant to both the thirty-day term of imprisonment (the maximum term of imprisonment for a petty misdemeanor) and anger management classes for defendant's harassment conviction (a petty misdemeanor). Defendant could have been sentenced to a thirty-day term of incarceration or a six-month term of probation, but not both, and thus defendant's sentence was illegal. 130 H. 332 (App.), 310 P.3d 1033 (2013).
Cited: 73 H. 81, 829 P.2d 1325 (1992).
Discussed: 78 H. 343, 893 P.2d 194 (1995).
Mentioned: 74 H. 75, 837 P.2d 776 (1992).
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§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).