Report Title:

Sentencing; Habitual Violent Felons

Description:

Enacts a provision for special sentencing for habitual violent felons.

THE SENATE

S.B. NO.

2436

TWENTY-SECOND LEGISLATURE, 2004

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO SENTENCING OF HABITUAL VIOLENT FELONS.

 

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

SECTION 1. Senate Concurrent Resolution No. 86, 2003, convened a task force of federal and state law enforcement officials, defense attorneys, and representatives of the state bar and the judiciary, under the leadership of the dean of the William S. Richardson School of Law, to examine the propriety of enacting a three strikes law. The task force concluded that Hawaii should not enact a three strikes law, modeled after California, for reasons of misleading the public, constitutional overbreadth, and proven ineffectiveness. Further concerns of the task force were projected costs and imposing further burdens on the prison system.

The task force considered three strike laws in other states and the federal government, and examined existing law in Hawaii. The conclusion was that current Hawaii law (repeat offender and extended imprisonment provisions) closely resembles three strikes laws elsewhere and serves the same ends. However, the task force found a need to enact a law to address the habitual violent felon.

The purpose of this Act is to enact a special sentencing provision for habitual violent felons.

SECTION 2. Chapter 706, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§706-   Special sentencing of habitual violent felons. (1) Notwithstanding any other provision of law to the contrary, a habitual violent felon shall be sentenced to both:

(a) A mandatory minimum term of imprisonment of not less than thirty years; and

(b) A mandatory indeterminate term of life imprisonment.

(2) The sentence under subsection (1) may be mitigated as provided in subsection (8).

(3) A habitual violent felon shall not be eligible for parole sooner than serving the mandatory minimum term under subsection (1) or subsection (2), as applicable.

(4) Except for work furlough programs, in the final year of a sentence, which require incarceration during the time the inmate is not working or traveling to or from work, a habitual violent felon shall not be eligible for pre-release, furlough, or other modified terms of imprisonment without the written authorization of the governor, which authorization shall not be delegable.

(5) A defendant is a "habitual violent felon" if:

(a) The defendant is at least eighteen years old at the time the defendant committed the current offense;

(b) The current conviction is for murder in the second degree, or any class A or class B felony that is a crime of violence; and

(c) The defendant has at least two prior and separate felony convictions for:

(i) Murder in any degree;

(ii) Any class A felony or class B felony that is a crime of violence; or

(iii) Any federal or out-of-state offense that is

comparable to a crime of violence as defined in subsection (6), or any federal or out-of-state offense that under the laws of this State would be a crime of violence as defined in subsection (6).

(6) For purposes of this section, "crime of violence" means:

(a) Murder in any degree;

(b) Manslaughter;

(c) Assault in the first degree;

(d) Kidnapping under section 707-720(1)(a) or (b) that is a class A felony;

(e) Sexual assault in the first degree;

(f) Continuous sexual assault of a minor under the age of fourteen years that includes an act of sexual penetration;

(g) Promoting child abuse in the first degree;

(h) Robbery in the first degree; or

(i) Carrying or use of a firearm in the commission of a separate felony.

(7) The court shall advise a defendant of the defendant's eligibility for sentencing under this section prior to the entry of a verdict of guilty, whether by trial, plea of guilty, or plea of no contest, and shall set forth the date and jurisdiction where each prior conviction occurred.

(8) The court may impose a mitigated sentence under the following procedures:

(a) A motion is made by the State that the court depart from the sentencing provisions of this section, based upon the defendant's cooperation in the investigation in another case or of another person or entity; or

(b) A motion is made by the defendant that the court depart from the sentencing provisions of this section and, after a hearing on the defendant's motion, the court finds that the circumstances of the case are exceptional and that a manifest injustice will occur if the defendant is sentenced in accordance with the sentencing provisions of this section. The court shall provide a written opinion stating its findings and its reasons for imposing a lesser sentence; provided that the court's order may be appealed by the State under section 641-13."

SECTION 3. Section 641-13, Hawaii Revised Statutes, is amended to read as follows:

"§641-13 By State in criminal cases. An appeal may be taken by and on behalf of the State from the district or circuit courts to the supreme court, subject to chapter 602, in all criminal cases, in the following instances:

(1) From an order or judgment quashing, setting aside, or sustaining a motion to dismiss, any indictment or complaint or any count thereof;

(2) From an order or judgment, sustaining a special plea in bar, or dismissing the case where the defendant has not been put in jeopardy;

(3) From an order granting a new trial;

(4) From an order arresting judgment;

(5) From a ruling on a question of law adverse to the State where the defendant was convicted and appeals from the judgment;

(6) From the sentence, on the ground that it is illegal;

(7) From a pretrial order granting a motion for the suppression of evidence, including a confession or admission, or the return of property in which case the intermediate appellate court or the supreme court, as the case may be, shall give priority to such an appeal and the order shall be stayed pending the outcome of the appeal;

(8) From an order denying a request by the State for protective order for nondisclosure of witness for their personal safety under Rule 16(e)(4) of the Hawaii Rules of Penal Procedure, in which case the intermediate appellate court or the supreme court, as the case may be, shall give priority to such appeal and the order shall be stayed pending outcome of such appeal;

(9) From a judgment of acquittal following a jury verdict of guilty[.]; and

(10) From an order granting a defendant's motion made pursuant to section 706-    to depart from the sentencing provisions for habitual violent felons."

SECTION 4. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 5. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 6. This Act shall take effect upon its approval.

INTRODUCED BY:

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