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.

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 §706-624(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.

Condition that defendant "refrain from company of people of questionable character" was not invalid for vagueness. 59 H. 366, 580 P.2d 1282.

Conditions imposed must be reasonable. 59 H. 378, 581 P.2d 759.

Where time for performing condition is not specified, performance is to be within a reasonable time. 59 H. 378, 581 P.2d 759.

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.

Requirement that defendant submit to periodic urinalysis for drugs was proper. 72 H. 67, 806 P.2d 407.

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.

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.

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.

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.

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.

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.

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.

Cited: 73 H. 81, 829 P.2d 1325.

Discussed: 78 H. 343, 893 P.2d 194.

Mentioned: 74 H. 75, 837 P.2d 776.

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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).