Report Title:

Relating to Crime

Description:

To create more uniformity and fairness in the Revised sentencing provisions relating to first-time and repeat offenders by eliminating unintended disparities or loopholes.

HOUSE OF REPRESENTATIVES

H.B. NO.

2369

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO CRIME.

 

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

SECTION 1. Chapter 708, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§708- Habitual property crime. (1) A person commits the offense of habitual property crime if the person is a habitual property crime perpetrator and commits a misdemeanor offense within this chapter.

(2) For the purposes of this section:

"Convicted" means that, at the time of the behavior for which the person is charged under this section, the person had a judgment on a verdict or a finding of guilty, or a plea of guilty or nolo contendere, for a violation of this chapter that, at the time of the instant offense, had not been expunged by pardon, reversed, or set aside. All convictions that have been expunged by pardon, reversed, or set aside prior to the instant offense shall not be deemed prior convictions for the purposes of proving the person's status as a habitual property crime perpetrator.

A person has the status of a "habitual property crime perpetrator" if the person, within five years of the instant offense, has been convicted of three felonies within this chapter, three misdemeanors within this chapter, or any combination of felonies and misdemeanors within this chapter totaling three convictions.

(3) Habitual property crime is a class C felony.

(4) For a conviction under this section, the sentence shall be either:

(a) An indeterminate term of imprisonment of five years; or

(b) A term of probation of five years, with conditions to include, but not be limited to, one year of imprisonment."

SECTION 2. Section 353-66, Hawaii Revised Statutes, is amended to read as follows:

"§353-66 Terms and conditions of parole; suspension and revocation. (a) Every parole granted under this part to any prisoner shall be subject to the express condition, to be set forth in the official written notification of parole to the prisoner, but to be binding upon the prisoner in any event, that all or any portion of the prisoner's credits earned or to be earned may be forfeited by order of the Hawaii paroling authority in the event that the prisoner breaks the prisoner's parole or violates any law of the State or rule of the paroling authority or any of the terms or conditions of the prisoner's parole.

(b) No parole shall be revoked and no credits forfeited without cause, which cause must be stated in the order revoking the parole, or forfeiting the credits after notice to the paroled prisoner of the paroled prisoner's alleged offense and an opportunity to be heard; provided that when a person is convicted in the State of a crime committed while on parole and is sentenced to imprisonment, or when it is shown by personal investigation that a parolee has left the State without permission from the paroling authority and due effort is made to reach the parolee by registered mail directed to the parolee's last known address, no hearing shall be required to revoke the parolee's parole; and provided further that when any duly licensed psychiatrist or licensed psychologist finds that continuance on parole will not be in the best interests of a parolee or the community, the paroling authority, within the limitations of the sentence imposed, shall order the detention and treatment of the prisoner until such time as the prisoner shall be found by any duly licensed psychiatrist or licensed psychologist to be eligible for continuance on parole.

(c) If any paroled prisoner leaves the State without permission from the paroling authority, or if the whereabouts of any paroled prisoner is not known to the paroling authority because of the neglect or failure of the prisoner to so inform it, the paroling authority may order the parole suspended pending apprehension. From and after the suspension of the parole of any paroled prisoner and until the paroled prisoner's return to custody, the paroled prisoner shall be deemed an escapee and a fugitive from justice, and no part of the time during which the paroled prisoner is an escapee and a fugitive from justice shall be part of the paroled prisoner's term.

(d) The paroling authority may at any time order the arrest and temporary return to custody of any paroled prisoner, as provided in section 353-65, for the purpose of ascertaining whether or not there is sufficient cause to warrant the paroled prisoner's reimprisonment or the revoking of the paroled prisoner's parole or other action provided for by this part.

(e) Any paroled prisoner retaken and reimprisoned as provided in this chapter shall be confined according to the paroled prisoner's sentence for that portion of the paroled prisoner's term remaining unserved at time of parole, but successive paroles may, in the discretion of the paroling authority, be granted to the prisoner during the life and in respect of the sentence.

[(f) Parole shall not be revoked for a first violation of the terms and conditions of parole involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, or involving possession or use of drug paraphernalia under section 329-43.5; provided that the person shall be required to undergo and complete a drug treatment program as a condition of continued parole. If the person fails to complete the drug treatment program and if no other suitable treatment is amenable to the offender, the person shall be subject to revocation of parole and return to incarceration. The Hawaii paroling authority may require the person to contribute to the cost of the drug treatment program.

As used in this subsection "drug treatment program" means drug or substance abuse services provided outside a correctional facility, but the services do not require the expenditure of state moneys beyond the limits of available appropriations.

Nothing in this subsection shall be construed to give rise to a cause of action against the State, state employee, or treatment provider.]"

SECTION 3. Section 706-605, Hawaii Revised Statutes, is amended to read as follows:

"§706-605 Authorized disposition of convicted defendants. (1) Except as provided in parts II and IV of this chapter or in section 706-647 and subsections (2) and (6) of this section and subject to the applicable provisions of this Code, the court may sentence a convicted defendant to one or more of the following dispositions:

(a) To be placed on probation as authorized by part II of this chapter;

(b) To pay a fine as authorized by part III and section 706-624 of this chapter;

(c) To be imprisoned for a term as authorized by part IV of this chapter;

(d) To make restitution in an amount the defendant can afford to pay; provided that the court may order any restitution to be paid to victims pursuant to section 706-646 or to the crime victim compensation special fund in the event that the victim has been given an award for compensation under chapter 351 and, if the court orders, in addition to restitution, payment of fine in accordance with paragraph (b), the payment of restitution and a compensation fee shall have priority over the payment of the fine; payment of restitution shall have priority over payment of a compensation fee; or

(e) To perform services for the community under the supervision of a governmental agency or benevolent or charitable organization or other community service group or appropriate supervisor; provided that the convicted person who performs such services shall not be deemed to be an employee of the governmental agency or assigned work site for any purpose. All persons sentenced to perform community service shall be screened and assessed for appropriate placement by a governmental agency coordinating public service work placement as a condition of sentence.

(2) The court shall not sentence a defendant to probation and imprisonment except as authorized by part II of this chapter.

[(3) In addition to any disposition authorized in subsection (1) of this section, the court may sentence a person convicted of a misdemeanor or petty misdemeanor to a suspended sentence.

(4)] (3) The court may sentence a person who has been convicted of a violation to any disposition authorized in subsection (1) of this section except imprisonment.

[(5)] (4) The court shall sentence a corporation or unincorporated association [which] that has been convicted of an offense in accordance with section 706-608.

[(6)] (5) The court shall impose a compensation fee upon every person convicted of a criminal offense pursuant to section 351-62.6; 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.

[(7)] (6) This chapter does not deprive the court of any authority conferred by law to decree a forfeiture of property, suspend or cancel a license, remove a person from office, or impose any other civil penalty. Such a judgment or order may be included in the sentence."

SECTION 4. Section 706-606.5, Hawaii Revised Statutes, is amended to read as follows:

"§706-606.5 Sentencing of repeat offenders. (1) Notwithstanding section 706-669 and any other law to the contrary, any person convicted of murder in the second degree, any class A felony, any class B felony, or any [of the following] class C [felonies: section 188-23 relating to possession or use of explosives, electrofishing devices, and poisonous substances in state waters; section 707-703 relating to negligent homicide in the first degree; 707-711 relating to assault in the second degree; 707-713 relating to reckless endangering in the first degree; 707-716 relating to terroristic threatening in the first degree; 707-721 relating to unlawful imprisonment in the first degree; 707-732 relating to sexual assault or rape in the third degree; 707-735 relating to sodomy in the third degree; 707-736 relating to sexual abuse in the first degree; 707-751 relating to promoting child abuse in the second degree; 707-766 relating to extortion in the second degree; 708-811 relating to burglary in the second degree; 708-821 relating to criminal property damage in the second degree; 708-831 relating to theft in the first degree as amended by Act 68, Session Laws of Hawaii 1981; 708-831 relating to theft in the second degree; 708-835.5 relating to theft of livestock; 708-836 relating to unauthorized control of propelled vehicle; 708-852 relating to forgery in the second degree; 708-854 relating to criminal possession of a forgery device; 708-875 relating to trademark counterfeiting; 710-1071 relating to intimidating a witness; 711-1103 relating to riot; 712-1203 relating to promoting prostitution in the second degree; 712-1221 relating to gambling in the first degree; 712-1224 relating to possession of gambling records in the first degree; 712-1243 relating to promoting a dangerous drug in the third degree; 712-1247 relating to promoting a detrimental drug in the first degree; 134-7 relating to ownership or possession of firearms or ammunition by persons convicted of certain crimes; 134-8 relating to ownership, etc., of prohibited weapons; 134-9 relating to permits to carry,] felony or who is convicted of attempting to commit murder in the second degree, any class A felony, any class B felony, or any [of the] class C felony [offenses enumerated above] and who has a prior conviction or prior convictions for the following felonies, including an attempt to commit the same: murder, murder in the first or second degree, a class A felony, a class B felony, [any of the] a class C felony [offenses enumerated above], or any felony conviction of another jurisdiction shall be sentenced to a mandatory minimum period of imprisonment without possibility of parole during such period as follows:

(a) One prior felony conviction:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--ten years;

(ii) Where the instant conviction is for a class A felony--six years, eight months;

(iii) Where the instant conviction is for a class B felony--three years, four months;

(iv) Where the instant conviction is for a class C felony offense [enumerated above]--one year, eight months;

(b) Two prior felony convictions:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--twenty years;

(ii) Where the instant conviction is for a class A felony--thirteen years, four months;

(iii) Where the instant conviction is for a class B felony--six years, eight months;

(iv) Where the instant conviction is for a class C felony offense [enumerated above]--three years, four months;

(c) Three or more prior felony convictions:

(i) Where the instant conviction is for murder in the second degree or attempted murder in the second degree--thirty years;

(ii) Where the instant conviction is for a class A felony--twenty years;

(iii) Where the instant conviction is for a class B felony--ten years;

(iv) Where the instant conviction is for a class C felony [offense enumerated above]--five years.

[(2) Except as in subsection (3), a person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during such period as follows:

(a) Within twenty years after a prior felony conviction where the prior felony conviction was for murder in the first degree or attempted murder in the first degree;

(b) Within twenty years after a prior felony conviction where the prior felony conviction was for murder in the second degree or attempted murder in the second degree;

(c) Within twenty years after a prior felony conviction where the prior felony conviction was for a class A felony;

(d) Within ten years after a prior felony conviction where the prior felony conviction was for a class B felony;

(e) Within five years after a prior felony conviction where the prior felony conviction was for a class C felony offense enumerated above;

(f) Within the maximum term of imprisonment possible after a prior felony conviction of another jurisdiction.

(3) If a person was sentenced for a prior felony conviction to a special term under section 706-667, then the person shall not be sentenced to a mandatory minimum period of imprisonment under this section unless the instant felony offense was committed during such period as follows:

(a) Within eight years after a prior felony conviction where the prior felony conviction was for a class A felony;

(b) Within five years after the prior felony conviction where the prior felony conviction was for a class B felony;

(c) Within four years after the prior felony conviction where the prior felony conviction was for a class C felony offense enumerated above.

(4)] (2) Notwithstanding any other law to the contrary, any person convicted of any of the following misdemeanor offenses:

(a) Section 707-712 relating to assault in the third degree;

(b) Section 707-717 relating to terroristic threatening in the second degree;

(c) Section 707-733 relating to sexual assault in the fourth degree[;

(d) Section 708-822 relating to criminal property damage in the third degree;

(e) Section 708-832 relating to theft in the third degree; and

(f) Section 708-833.5(2) relating to misdemeanor shoplifting],

and who has been convicted of [any of the offenses enumerated above on at least three prior and separate occasions within three years of the date of the commission of the present offense,] three misdemeanors, three felonies, or any combination of misdemeanors and felonies totaling three convictions for acts that took place on three prior and separate occasions, shall be sentenced to no less than [nine months] one year of imprisonment[.], which shall not be suspended. Whenever a court sentences a defendant under this subsection for an offense under section 707-733, the court shall order the defendant to participate in a sex offender assessment and, if recommended based on the assessment, participate in the sex offender treatment program established by chapter 353E.

[(5) The sentencing court may impose the above sentences consecutive to any sentence imposed on the defendant for a prior conviction, but such sentence shall be imposed concurrent to the sentence imposed for the instant conviction. The court may impose a lesser mandatory minimum period of imprisonment without possibility of parole than that mandated by this section where the court finds that strong mitigating circumstances warrant such action. Strong mitigating circumstances shall include, but shall not be limited to the provisions of section 706-621. The court shall provide a written opinion stating its reasons for imposing the lesser sentence.

(6)] (3) A person who is imprisoned in a correctional institution pursuant to subsection (1) shall not be paroled, pre-released, or furloughed prior to the expiration of the mandatory minimum term of imprisonment imposed pursuant to subsection (1).

[(7)] (4) For purposes of this section:

(a) Convictions under two or more counts of an indictment or complaint shall be considered a single conviction without regard to when the convictions occur;

(b) A prior conviction in this or another jurisdiction shall be deemed a felony conviction if it was punishable by a sentence of death or of imprisonment in excess of one year; and

(c) A conviction occurs on the date judgment is entered."

SECTION 5. Section 706-622.5, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) Notwithstanding any penalty or sentencing provision under part IV of chapter 712, a person who has no prior felony conviction, who has no felony charge for which proceedings have been deferred but not discharged under section 712-1255, and who has no felony charge for which acceptance of the plea has been deferred but not discharged under chapter 853 who is convicted for the first time for any offense under part IV of chapter 712 involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, or involving possession or use of drug paraphernalia under section 329-43.5, who is nonviolent, as determined by the court after reviewing the:

(a) Criminal history of the defendant;

(b) Factual circumstances of the offense for which the defendant is being sentenced; and

(c) Other information deemed relevant by the court;

shall be sentenced in accordance with subsection (2); provided that the [person does not have a conviction for any violent felony for five years immediately preceding the date of the commission of the offense for which the defendant is being sentenced.] offense is not a class A felony. Nothing in this section shall affect sentencing for any conviction for an offense that is not under part IV of chapter 712, even when such a conviction arises out of the same set of facts as the offense that is under part IV of chapter 712. Nothing in this section shall affect the sentencing of offenders eligible for mandatory sentencing, enhanced sentencing, or other special sentencing provisions under part I or IV of this chapter."

SECTION 6. Section 706-625, Hawaii Revised Statutes, is amended by amending subsection (7) to read as follows:

"(7) [Probation shall not be] If probation is revoked for a first violation of the terms and conditions of probation involving possession or use, not including to distribute or manufacture as defined in section 712-1240, of any dangerous drug, detrimental drug, harmful drug, intoxicating compound, marijuana, or marijuana concentrate, as defined in section 712-1240, or involving possession or use of drug paraphernalia under section 329-43.5[;provided that the person shall be required to], the court shall resentence the defendant to any sentence provided by law. If the court resentences the defendant to a new five-year term of probation, the new terms and conditions shall include, but not be limited to, random drug tests at least twice per month and a requirement that the defendant undergo and complete a drug treatment program as a condition of continued probation. If the person tests positive for drugs or fails to complete the drug treatment program [and if no other suitable treatment is amenable to the offender], the person shall be subject to revocation of probation and [return to] incarceration. The court may require the person to contribute to the cost of the drug treatment program.

As used in this subsection, "drug treatment program" means drug or substance abuse services provided outside a correctional facility, but the services do not require the expenditure of state moneys beyond the limits of available appropriations.

Nothing in this subsection shall be construed to give rise to a cause of action against the State, state employee, or treatment provider."

SECTION 7. Section 706-659, Hawaii Revised Statutes, is amended to read as follows:

"§706-659 Sentence of imprisonment for class A felony. Notwithstanding part II; sections 706-605, 706-606, 706-606.5, 706-660.1, 706-661, and 706-662; and any other law to the contrary, a person who has been convicted of a class A felony[, except class A felonies defined in chapter 712, part IV,] shall be sentenced to [an]:

(a) An indeterminate term of imprisonment of twenty years without the possibility of suspension of sentence or probation[.], if the person has no prior felony conviction;

(b) An indeterminate term of imprisonment of thirty years without the possibility of suspension of sentence or probation, if the person has a prior felony conviction; or

(c) Life imprisonment with the possibility of parole, if the person has two or more prior felony convictions.

The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669. [A person who has been convicted of a class A felony defined in chapter 712, part IV, may be sentenced to an indeterminate term of imprisonment, except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses and section 706-606.5 relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be twenty years. The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669.]"

SECTION 8. Section 706-660, Hawaii Revised Statutes, is amended to read as follows:

"§706-660 Sentence of imprisonment for class B and C felonies; ordinary terms. A person who has been convicted of a class B or class C felony may be sentenced to an indeterminate term of imprisonment except as provided for in section 706-660.1 relating to the use of firearms in certain felony offenses and section 706-606.5 relating to repeat offenders. When ordering such a sentence, the court shall impose the maximum length of imprisonment which shall be as follows:

[(1)] (a) For a class B felony[--10 years; and]:

(i) Ten years, if the person has no prior felony conviction;

(ii) Fifteen years, if the person has a prior felony conviction; or

(iii) Twenty years, if the person has two or more prior felony convictions.

[(2)] (b) For a class C felony[--5 years.]:

(i) Five years, if the person has no prior felony conviction;

(ii) Seven years, six months, if the person has a prior felony conviction; or

(iii) Ten years, if the person has two or more prior felony convictions.

The minimum length of imprisonment shall be determined by the Hawaii paroling authority in accordance with section 706-669."

SECTION 9. Section 706-663, Hawaii Revised Statutes, is amended to read as follows:

"§706-663 Sentence of imprisonment for misdemeanor and petty misdemeanor. [After] (1) For a first offense, after consideration of the factors set forth in sections 706-606 and 706-621, the court may sentence a person who has been convicted of a misdemeanor or a petty misdemeanor to imprisonment for a definite term to be fixed by the court and, notwithstanding any other law to the contrary, not to exceed [one year in the case of a misdemeanor or thirty days in the case of a petty misdemeanor.]:

(a) One year in the case of a misdemeanor defined in chapter 707 or 709;

(b) Thirty days in the case of any other misdemeanor; or

(c) Twenty days in the case of a petty misdemeanor.

(2) For a second offense that occurs within five years of a prior conviction for a previous felony, misdemeanor, or petty misdemeanor, after consideration of the factors set forth in sections 706-606 and 706-621, the court may sentence a person who has been convicted of a misdemeanor or a petty misdemeanor to imprisonment for a definite term to be fixed by the court and, notwithstanding any other law to the contrary, not to exceed:

(a) One year in the case of a misdemeanor defined in chapter 707 or 709;

(b) Sixty days in the case of any other misdemeanor; or

(c) Thirty days in the case of a petty misdemeanor.

(3) Notwithstanding any other law to the contrary, for a third conviction that occurs within five years of two prior felony convictions, two prior misdemeanor convictions, two prior petty misdemeanor convictions, or any combination of two prior convictions for felonies, misdemeanors, or petty misdemeanors, after consideration of the factors set forth in sections 706-606 and 706-621:

(a) A person who has been convicted of a misdemeanor defined in chapter 707 or 709 shall be sentenced to imprisonment for a definite term of not more than one year and not less than one hundred eighty days;

(b) A person who has been convicted of any other misdemeanor shall be sentenced to imprisonment for a definite term of not more than one hundred eighty days and not less than ninety days; or

(c) A person who has been convicted of a petty misdemeanor shall be sentenced to imprisonment for a definite term of not more than thirty days and not less than ten days.

(4) Notwithstanding any other law to the contrary, for a fourth or subsequent conviction that occurs within five years of three prior felony convictions, three prior misdemeanor convictions, three prior petty misdemeanor convictions, or any combination of three prior convictions for felonies, misdemeanors, or petty misdemeanors, after consideration of the factors set forth in sections 706-606 and 706-621:

(a) A person who has been convicted of a misdemeanor shall be sentenced to imprisonment for a definite term of one year; or

(b) The court may sentence a person who has been convicted of a petty misdemeanor to imprisonment for a definite term of thirty days.

(5) A person sentenced pursuant to the provisions of subsection (3) or (4) shall not be sentenced to a suspended sentence and shall not be eligible for a deferred acceptance of guilty or nolo contendere plea."

SECTION 10. Section 712-1241, Hawaii Revised Statutes, is amended by amending subsection (3) to read as follows:

"(3) Notwithstanding any law to the contrary, [except for first-time offenders sentenced under section 706-622.5,] if the commission of the offense of promoting a dangerous drug in the first degree under this section involved the possession, distribution, or manufacture of methamphetamine, or any of its salts, isomers, and salts of isomers, the person convicted shall be sentenced to an indeterminate term of imprisonment of twenty years with a mandatory minimum term of imprisonment, the length of which shall be not less than one year and not greater than ten years, at the discretion of the sentencing court for a conviction under subsection (1)(a), (1)(b), or (1)(c) and not less than ten years for a conviction under subsection (1)(d). The person convicted shall not be eligible for parole during the mandatory term of imprisonment."

SECTION 11. Section 853-4, Hawaii Revised Statutes, is amended to read as follows:

"§853-4 Chapter not applicable; when. (a) This chapter shall not apply when[:] the offense charged:

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

(2) [The offense charged is] Is a felony that involves the intentional, knowing, or reckless bodily injury, substantial bodily injury, or serious bodily injury of another person, or is 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] Involves a conspiracy or solicitation to intentionally, knowingly, or recklessly kill another person or to cause serious or substantial bodily injury to another person;

(4) [The offense charged is] Is a class A felony; or

(5) [The offense charged is] 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;

(C) Promoting prison contraband in the first 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.]

(b) This chapter shall not apply to a defendant:

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

(2) Who has previously been 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, even if the family court did not waive jurisdiction over the defendant;

(3) Who has a prior conviction for a felony committed in any state, federal, or foreign jurisdiction; or

(4) Who has been previously granted deferred acceptance of guilty plea or nolo contendere plea status for a prior offense, regardless of whether the period of deferral has already expired.

(c) This chapter shall not apply when the offense charged is a felony; provided that the court may apply this chapter if, and only if, the felony charged is one of the following felonies:

(1) Negligent injury in the first degree;

(2) Reckless endangering in the first degree;

(3) Terroristic threatening in the first degree, except those offenses charged under section 707-716(1)(d);

(4) Custodial interference in the first degree;

(5) Burglary in the second degree;

(6) Criminal property damage in the second degree charged under section 708-821(1)(b);

(7) Theft in the second degree;

(8) Theft of livestock;

(9) Unauthorized control of a propelled vehicle;

(10) Unauthorized entry into a motor vehicle;

(11) Theft of utility services;

(12) Forgery in the first degree;

(13) Forgery in the second degree;

(14) Criminal possession of a forgery device;

(15) Trademark counterfeiting;

(16) Suppressing a testamentary or recordable instrument;

(17) Computer fraud in the second degree;

(18) Computer damage in the second degree;

(19) Unauthorized computer access in the second degree;

(20) Cable television service fraud in the first degree; or

(21) Telecommunications service fraud in the first degree.

(d) This chapter shall not apply when the offense charged is:

(1) Sexual assault in the fourth degree;

(2) Tampering with a witness;

(3) Promoting prostitution in the third degree;

(4) Abuse of family or household members; or

(5) A violation of an order issued pursuant to chapter 586.

(e) The court may adopt by rule other criteria in this area."

SECTION 12. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 13. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

BY REQUEST