Honolulu, Hawaii
                                                     , 1999

                                   RE:  S.B. No. 1122
                                        S.D. 1

Honorable Norman Mizuguchi
President of the Senate
Twentieth State Legislature
Regular Session of 1999
State of Hawaii


     Your Committee on Judiciary, to which was referred S.B.
No. 1122 entitled: 


begs leave to report as follows:

     The purpose of this bill is to clarify that any conviction
or sentence for carrying or use of a firearm in the commission of
a separate felony shall be in addition to and not in lieu of any
conviction and sentence for the separate felony.  In addition,
this bill clarifies that the sentence imposed may run
concurrently or consecutively with the sentence for the separate

     Your Committee believes that stronger and more certain
penalties should be instituted to discourage the use of firearms
in the commission of a felony and to provide a deterrent effect
against such use.

     Your Committee finds that clarification in the law is
necessary due to a recent Hawaii Supreme Court case, State v.
Jumila, 87 Haw. 1 (1998), in which the Court held that the
offense of carrying or using a firearm in the commission of a
felony was not punishable as a separate offense from the
underlying felony.  In Jumila, the majority and the dissent
agreed that the legislature could, if desired, permit the
conviction and sentencing for both offenses.  However, the
majority and dissent disagreed as to whether the legislature had
done so.  The majority found that there was insufficient

                                   STAND. COM. REP. NO. 843
                                   Page 2

legislative history to conclude that the legislature had intended
separate convictions and sentencing.  The dissent disagreed,
citing prior case law and language in committee reports
indicating that carrying or using a firearm in the commission of
a felony could be charged in addition to the underlying offense.

     Your Committee agrees with the dissent.  Senate Standing
Committee Report No. 1217 (1993 Senate Journal at 1210) clearly
states "[A]n offender who uses a firearm in the commission of a
felony can be charged with, in addition to the underlying
offense, a class A felony under section 134-6(a) and therefore be
subject to enhanced penalty." (Emphasis added.)

     At the same time, your Committee recognizes and seeks to
address another shortcoming in the law, as pointed out by the
Jumila dissent.  The dissent noted that there was insufficient
legislative intent to permit cumulative sentencing under section
134-6(a) and section 706-660.1 (sentence of imprisonment for use
of a firearm in a felony).  Your Committee believes that when the
application of both statutes is based upon the same underlying
felony, cumulative punishment is permissible.

     Testimony in support of this measure was submitted by the
Department of the Attorney General, the Department of the
Prosecuting Attorney of the City and County of Honolulu, the
Department of the Prosecuting Attorney of the County of Maui, and
the Honolulu Police Department.  Testimony in opposition to this
bill was submitted by the Office of the Public Defender and the
Hawaii Rifle Association.

     Upon further consideration, your Committee has amended this
bill by adding a saving provision and making technical, non-
substantive changes for the purposes of clarity and style.

     As affirmed by the record of votes of the members of your
Committee on Judiciary that is attached to this report, your
Committee is in accord with the intent and purpose of S.B.
No. 1122, as amended herein, and recommends that it pass Second
Reading in the form attached hereto as S.B. No. 1122, S.D. 1, and
be placed on the calendar for Third Reading.

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                                   Page 3

                                   Respectfully submitted on
                                   behalf of the members of the
                                   Committee on Judiciary,

                                   AVERY B. CHUMBLEY, Co-Chair

                                   MATTHEW M. MATSUNAGA, Co-Chair