REPORT TITLE:
Probation Service Fee


DESCRIPTION:
Requires a court, upon sentencing a defendant to probation, to
order the defendant to pay a probation service fee of $150 for a
term of more than one year, or $75 for a term of one year or
less.  Establishes the probation services special fund.  (HB2648
CD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2648
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 2000                                S.D. 2
STATE OF HAWAII                                            C.D. 1
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT
RELATING TO PROBATION.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 353, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "353-     Probation services fee; assessment.  Any
 
 5 defendant received for supervision pursuant to section 353-81
 
 6 shall be assessed a probation services fee pursuant to section
 
 7 706-A."
 
 8      SECTION 2.  Chapter 706, Hawaii Revised Statutes, is amended
 
 9 by adding two new sections to part III to be appropriately
 
10 designated and to read as follows:
 
11      "706-A  Probation services fee.  (1)  The court, when
 
12 sentencing a defendant to probation, shall order the defendant to
 
13 pay a probation services fee.  The amount of the fee shall be as
 
14 follows:
 
15      (a)  $150, when the term of probation is for more than one
 
16           year; or
 
17      (b)  $75, when the term of probation is for one year or
 
18           less;
 
19 provided that no fee shall be ordered when the court determines
 
20 that the defendant is unable to pay the fee.
 

 
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 1      (2)  The entire fee ordered or assessed shall be payable
 
 2 forthwith by cash, check, or by a credit card approved by the
 
 3 court.  When a defendant is also ordered to pay a fine, make
 
 4 restitution, pay a crime victim compensation fee, or pay other
 
 5 fees in addition to the probation services fee under subsection
 
 6 (a), payments by the defendant shall be made in the following
 
 7 order of priority:
 
 8      (a)  Restitution;
 
 9      (b)  Crime victim compensation fee;
 
10      (c)  Probation services fee;
 
11      (d)  Other fees; and
 
12      (e)  Fines.
 
13      (3)  Any defendant received for supervision pursuant to
 
14 section 353-81 shall be assessed a probation services fee
 
15 pursuant to this section.
 
16      (4)  The defendant shall pay the fee to the clerk of the
 
17 court.  The fee shall be deposited with the director of finance
 
18 who shall transmit the fee to the probation services special fund
 
19 pursuant to section 706-B.
 
20      706-B  Probation services special fund.  (1)  There is
 
21 established in the state treasury a special fund to be known as
 
22 the probation services special fund.  All probation services fees
 
23 collected under section 706-A shall be deposited into this fund.
 

 
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 1      (2)  Moneys in the probation services special fund shall be
 
 2 used by the judiciary to monitor, enforce, and collect fees,
 
 3 fines, restitution, other monetary obligations owed by
 
 4 defendants, and other terms and conditions of probation.
 
 5      (3)  The probation services special fund shall be exempt
 
 6 from transfers for central service expenses pursuant to section
 
 7 36-27, and reimbursements for departmental administration
 
 8 expenses pursuant to section 36-30."
 
 9      SECTION 3.  Section 36-27, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "36-27  Transfers from special funds for central service
 
12 expenses.  Except as provided in this section, and
 
13 notwithstanding any other law to the contrary, from time to time,
 
14 the director of finance, for the purpose of defraying the
 
15 prorated estimate of central service expenses of government in
 
16 relation to all special funds, except the:
 
17      (1)  Special summer school and intersession fund under
 
18           section 302A-1310;
 
19      (2)  School cafeteria special funds of the department of
 
20           education;
 
21      (3)  Special funds of the University of Hawaii;
 
22      (4)  State educational facilities improvement special fund;
 

 
 
 
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 1      (5)  Convention center capital and operations special fund
 
 2           under section 206X-10.5;
 
 3      (6)  Special funds established by section 206E-6;
 
 4      (7)  Housing loan program revenue bond special fund;
 
 5      (8)  Housing project bond special fund;
 
 6      (9)  Aloha Tower fund created by section 206J-17;
 
 7     (10)  Domestic violence prevention special fund under section
 
 8           321-1.3;
 
 9     (11)  Spouse and child abuse special account under section
 
10           346-7.5;
 
11     (12)  Spouse and child abuse special account under section
 
12           601-3.6;
 
13     (13)  Funds of the employees' retirement system created by
 
14           section 88-109;
 
15     (14)  Unemployment compensation fund established under
 
16           section 383-121;
 
17     (15)  Hawaii hurricane relief fund established under chapter
 
18           431P;
 
19     (16)  Hawaii health systems corporation special funds;
 
20     (17)  Boiler and elevator safety revolving fund established
 
21           under section 397-5.5;
 
22     (18)  Tourism special fund established under section 201B-11;
 

 
 
 
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 1     (19)  Department of commerce and consumer affairs' special
 
 2           funds;
 
 3     (20)  Compliance resolution fund established under section
 
 4           26-9;
 
 5     (21)  Universal service fund established under chapter 269;
 
 6     (22)  Integrated tax information management systems special
 
 7           fund under section 231-3.2;
 
 8     (23)  Insurance regulation fund under section 431:2-215;
 
 9     (24)  Hawaii tobacco settlement special fund under section
 
10           328L-2; [and]
 
11     (25)  Emergency budget and reserve fund under section 328L-3;
 
12           and
 
13     (26)  Probation services special fund under section 706-B;
 
14 shall deduct five per cent of all receipts of all other special
 
15 funds, which deduction shall be transferred to the general fund
 
16 of the State and become general realizations of the State.  All
 
17 officers of the State and other persons having power to allocate
 
18 or disburse any special funds shall cooperate with the director
 
19 in effecting these transfers.  To determine the proper revenue
 
20 base upon which the central service assessment is to be
 
21 calculated, the director shall adopt rules pursuant to chapter 91
 
22 for the purpose of suspending or limiting the application of the
 
23 central service assessment of any fund.  No later than twenty
 

 
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 1 days prior to the convening of each regular session of the
 
 2 legislature, the director shall report all central service
 
 3 assessments made during the preceding fiscal year."
 
 4      SECTION 4.  Section 36-30, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (a) to read as follows:
 
 6      "(a)  Each special fund, except the:
 
 7      (1)  Transportation use special fund established by section
 
 8           261D-1;
 
 9      (2)  Special summer school and intersession fund under
 
10           section 302A-1310;
 
11      (3)  School cafeteria special funds of the department of
 
12           education;
 
13      (4)  Special funds of the University of Hawaii;
 
14      (5)  State educational facilities improvement special fund;
 
15      (6)  Special funds established by section 206E-6;
 
16      (7)  Aloha Tower fund created by section 206J-17;
 
17      (8)  Domestic violence prevention special fund under section
 
18           321-1.3;
 
19      (9)  Spouse and child abuse special account under section
 
20           346-7.5;
 
21     (10)  Spouse and child abuse special account under section
 
22           601-3.6;
 

 
 
 
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 1     (11)  Funds of the employees' retirement system created by
 
 2           section 88-109;
 
 3     (12)  Unemployment compensation fund established under
 
 4           section 383-121;
 
 5     (13)  Hawaii hurricane relief fund established under chapter
 
 6           431P;
 
 7     (14)  Convention center capital and operations special fund
 
 8           established under section 206X-10.5;
 
 9     (15)  Hawaii health systems corporation special funds;
 
10     (16)  Tourism special fund established under section 201B-11;
 
11     (17)  Compliance resolution fund established under section
 
12           26-9;
 
13     (18)  Universal service fund established under chapter 269;
 
14     (19)  Integrated tax information management systems special
 
15           fund;
 
16     (20)  Insurance regulation fund under section 431:2-215;
 
17     (21)  Hawaii tobacco settlement special fund under section
 
18           328L-2; [and]
 
19     (22)  Emergency and budget reserve fund under section 328L-3;
 
20           and
 
21     (23)  Probation services special fund under section 706-B;
 
22 shall be responsible for its pro rata share of the administrative
 

 
 
 
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 1 expenses incurred by the department responsible for the
 
 2 operations supported by the special fund concerned."
 
 3      SECTION 5.  Chapter 706, Hawaii Revised Statutes, is amended
 
 4 by amending the title of part III to read as follows:
 
 5             "PART III.  FEES, FINES, AND RESTITUTION"
 
 6      SECTION 6.  Section 706-644, Hawaii Revised Statutes, is
 
 7 amended to read as follows:
 
 8      "706-644  Consequences of nonpayment; imprisonment for
 
 9 contumacious nonpayment; summary collection.(1)  When a
 
10 defendant is sentenced pursuant to section 706-605, granted a
 
11 conditional discharge pursuant to section 712-1255, or granted a
 
12 deferred plea pursuant to chapter 853, and the defendant is
 
13 ordered to pay a fee, fine, or restitution, whether as an
 
14 independent order, as part of a judgment and sentence, or as a
 
15 condition of probation or deferred plea, and the defendant
 
16 defaults in the payment thereof or of any installment, the court,
 
17 upon the motion of the prosecuting attorney or upon its own
 
18 motion, may require the defendant to show cause why the
 
19 defendant's default should not be treated as contumacious and may
 
20 issue a summons or a warrant of arrest for the defendant's
 
21 appearance.  Unless the defendant shows that the defendant's
 
22 default was not attributable to an intentional refusal to obey
 
23 the order of the court, or to a failure on the defendant's part
 

 
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 1 to make a good faith effort to obtain the funds required for the
 
 2 payment, the court shall find that the defendant's default was
 
 3 contumacious and may order the defendant committed until the fee,
 
 4 fine, restitution, or a specified part thereof is paid.
 
 5      (2)  When a fee, fine, or restitution is imposed on a
 
 6 corporation or unincorporated association, it is the duty of the
 
 7 person or persons authorized to make disbursement from the assets
 
 8 of the corporation or association to pay it from those assets,
 
 9 and their failure to do so may be held contumacious unless they
 
10 make the showing required in subsection (1).
 
11      (3)  The term of imprisonment for nonpayment of fee, fine,
 
12 or restitution shall be specified in the order of commitment, and
 
13 shall not exceed one day for each $25 of the fee or fine, thirty
 
14 days if the fee or fine was imposed upon conviction of a
 
15 violation or a petty misdemeanor, or one year in any other case,
 
16 whichever is the shorter period.  A person committed for
 
17 nonpayment of a fee or fine shall be given credit toward payment
 
18 of the fee or fine for each day of imprisonment, at the rate of
 
19 $25 per day.
 
20      (4)  If it appears that the defendant's default in the
 
21 payment of a fee, fine, or restitution is not contumacious, the
 
22 court may make an order allowing the defendant additional time
 
23 for payment, reducing the amount of each installment, or revoking
 

 
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 1 the fee, fine, or the unpaid portion thereof in whole or in part,
 
 2 or converting the unpaid portion of the fee or fine to community
 
 3 service.  A defendant shall not be discharged from an order to
 
 4 pay restitution until the full amount of the restitution has
 
 5 actually been collected or accounted for.
 
 6      (5)  Unless discharged by payment or, in the case of a fee
 
 7 or fine, service of imprisonment pursuant to subsection (3), an
 
 8 order to pay a fee, fine, or restitution, whether as an
 
 9 independent order, as a part of a judgment and sentence, or as a
 
10 condition of probation or deferred plea pursuant to chapter 853,
 
11 may be collected in the same manner as a judgment in a civil
 
12 action.  The State or the victim named in the order may collect
 
13 the restitution, including costs, interest, and attorney's fees,
 
14 pursuant to section 706-646.  The State may collect the fee or
 
15 fine, including costs, interest, and attorney's fees pursuant to
 
16 section 706-647.
 
17      (6)  Attorney's fees, costs, and interest shall not be
 
18 deemed part of the penalty, and no person shall be imprisoned
 
19 under this section in default of payment of attorney's fees,
 
20 costs, and interest."
 
21      SECTION 7.  There is appropriated from the probation
 
22 services special fund, the sum of $300,000, or so much thereof as
 
23 may be necessary for fiscal year 2000-2001, to carry out the
 

 
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 1 purposes of this Act.  The sum appropriated shall be expended by
 
 2 the judiciary.
 
 3      SECTION 8.  In codifying the new sections added to chapter
 
 4 706, Hawaii Revised Statutes, by section 2 of this Act, the
 
 5 revisor of statutes shall substitute appropriate section numbers
 
 6 for the letters used in designating the new sections in this Act.
 
 7      SECTION 9.  This Act shall not affect rights and duties that
 
 8 matured, penalties that were incurred, and proceedings that were
 
 9 begun, before its effective date.
 
10      SECTION 10.  Statutory material to be repealed is bracketed.
 
11 New statutory material is underscored.
 
12      SECTION 11.  This Act shall take effect on July 1, 2000;
 
13 provided that amendments made to section 36-27 by this Act shall
 
14 not be repealed when that section is reenacted on July 31, 2003,
 
15 pursuant to section 9 of Act 142, Session Laws of Hawaii 1998.