§706-624 Conditions of probation. (1) Mandatory conditions. The court shall provide, as an explicit condition of a sentence of probation:
(a) That the defendant not commit another federal or state crime during the term of probation;
(b) That the defendant report to a probation officer as directed by the court or the probation officer;
(c) That the defendant remain within the jurisdiction of the court, unless granted permission to leave by the court or a probation officer;
(d) That the defendant notify a probation officer prior to any change in address or employment;
(e) That the defendant notify a probation officer promptly if arrested or questioned by a law enforcement officer; and
(f) That the defendant permit a probation officer to visit the defendant at the defendant's home or elsewhere as specified by the court.
(2) Discretionary conditions. The court may provide, as further conditions of a sentence of probation, to the extent that the conditions are reasonably related to the factors set forth in section 706-606 and to the extent that the conditions involve only deprivations of liberty or property as are reasonably necessary for the purposes indicated in section 706-606(2), that the defendant:
(a) Serve a term of imprisonment not exceeding one year in felony cases, and not exceeding six months in misdemeanor cases; provided that notwithstanding any other provision of law, any order of imprisonment under this subsection that provides for prison work release shall require the defendant to pay thirty per cent of the defendant's gross pay earned during the prison work release period to satisfy any restitution order. The payment shall be handled by the adult probation division and shall be paid to the victim on a monthly basis;
(b) Perform a specified number of hours of services to the community as described in section 706-605(1)(e);
(c) Support the defendant's dependents and meet other family responsibilities;
(d) Pay a fine imposed pursuant to section 706-605(1)(b);
(e) Make restitution as specified in section 706-605(1)(d);
(f) Work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip the defendant for suitable employment;
(g) Refrain from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the crime or engage in the specified occupation, business, or profession only to a stated degree or under stated circumstances;
(h) Refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons, including but not limited to the victim of the crime, any witnesses, regardless of whether they actually testified in the prosecution, law enforcement officers, co-defendants, or other individuals with whom contact may adversely affect the rehabilitation or reformation of the person convicted;
(i) Refrain from use of alcohol or any use of narcotic drugs or controlled substances without a prescription;
(j) Refrain from possessing a firearm, destructive device, or other dangerous weapon;
(k) Undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, and remain in a specified institution if required for that purpose;
(l) Reside in a specified place or area or refrain from residing in a specified place or area;
(m) Submit to periodic urinalysis or other similar testing procedure;
(n) Satisfy other reasonable conditions as the court may impose;
(o) Refrain from entering specified geographical areas without the court's permission; or
(p) Refrain from leaving the person's dwelling place except to go to and from the person's place of employment, the office of the person's physician or dentist, the probation office or as may be granted by the person's probation officer pursuant to court order. As used in this paragraph, "dwelling place" includes the person's yard or, in the case of condominiums, the common elements.
(3) Written statement of conditions. The defendant shall be given a written copy of any requirements imposed pursuant to this section, stated with sufficient specificity to enable the defendant to guide the defendant's self accordingly. [L 1972, c 9, pt of §1; am L 1973, c 136, §5; am L 1978, c 224, §1; am L 1984, c 257, §2; am L 1986, c 314, §25; am L 1987, c 262, §1; am L 1989, c 48, §1]
COMMENTARY ON §706-624
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.
SUPPLEMENTAL COMMENTARY ON §706-624
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.
Case Notes
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.
Based on defendant's history, the circumstances of the case, and the seriousness of the offense, the family court did not exceed the bounds of reason or disregard rules or principles of law to the substantial detriment of defendant when it sentenced defendant to undergo sex offender evaluation and treatment as a condition of probation. 107 H. 117, 111 P.3d 12.
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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§706-624 Commentary:
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).