REPORT TITLE:
Criminal Offenses


DESCRIPTION:
Authorizes sentencing judge to determine merger of convictions if
multiple convictions include lesser included offenses.  Amends
double jeopardy provisions to allow subsequent prosecution if
former prosecution resulted in a conviction or finding of guilty
of lesser include offense that subsequently was set aside.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.1493       
TWENTIETH LEGISLATURE, 1999                                
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO CRIMINAL OFFENSES.
 


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

 1      SECTION 1.  Section 701-108, Hawaii Revised Statutes, is
 
 2 amended by amending subsection (3) to read as follows:
 
 3      "(3)  If the period prescribed in subsection (2) has
 
 4 expired, a prosecution [may] nevertheless may be commenced for:
 
 5      (a)  Any offense [an element of which is either] that
 
 6           involves an act or acts of fraud or a breach of
 
 7           fiduciary obligation within three years after discovery
 
 8           of the offense by an aggrieved party or by a person who
 
 9           has a legal duty to represent an aggrieved party and
 
10           who personally is [oneself] not a party to the
 
11           offense[,]; but in no case shall this provision extend
 
12           the period of limitation by more than six years from
 
13           the expiration of the period of limitation prescribed
 
14           in subsection (2); and
 
15      (b)  Any offense based on misconduct in office by a public
 
16           officer or employee at any time when the defendant is
 
17           in public office or employment or within two years
 
18           thereafter, but in no case shall this provision extend
 
19           the period of limitation by more than three years from
 

 
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 1           the expiration of the period of limitation prescribed
 
 2           in subsection (2)."
 
 3      SECTION 2.  Section 702-109, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "§701-109  Method of prosecution when conduct establishes an
 
 6 element of more than one offense.  [(1)  When the same conduct of
 
 7 a defendant may establish an element of more than one offense,
 
 8 the defendant may be prosecuted for each offense of which such
 
 9 conduct is an element.  The defendant may not, however, be
 
10 convicted of more than one offense if:
 
11      (a)  One offense is included in the other, as defined in
 
12           subsection (4) of this section; or
 
13      (b)  One offense consists only of a conspiracy or
 
14           solicitation to commit the other; or
 
15      (c)  Inconsistent findings of fact are required to establish
 
16           the commission of the offenses; or
 
17      (d)  The offenses differ only in that one is defined to
 
18           prohibit a designated kind of conduct generally and the
 
19           other to prohibit a specific instance of such conduct;
 
20           or
 
21      (e)  The offense is defined as a continuing course of
 
22           conduct and the defendant's course of conduct was
 
23           uninterrupted, unless the law provides that specific
 

 
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 1           periods of conduct constitute separate offenses.
 
 2      (2)  Except as provided in subsection (3) of this section, a
 
 3 defendant shall not be subject to separate trials for multiple
 
 4 offenses based on the same conduct or arising from the same
 
 5 episode, if such offenses are known to the appropriate
 
 6 prosecuting officer at the time of the commencement of the first
 
 7 trial and are within the jurisdiction of a single court.
 
 8      (3)  When a defendant is charged with two or more offenses
 
 9 based on the same conduct or arising from the same episode, the
 
10 court, on application of the prosecuting attorney or of the
 
11 defendant, may order any such charge to be tried separately, if
 
12 it is satisfied that justice so requires.
 
13      (4)] (1)  A defendant may be convicted of an offense
 
14 included in an offense charged in the indictment or the
 
15 information.  [An offense is so included when:
 
16      (a)  It is established by proof of the same or less than all
 
17           the facts required to establish the commission of the
 
18           offense charged; or
 
19      (b)  It consists of an attempt to commit the offense charged
 
20           or to commit an offense otherwise included therein; or
 
21      (c)  It differs from the offense charged only in the respect
 
22           that a less serious injury or risk of injury to the
 
23           same person, property, or public interest or a
 

 
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 1           different state of mind indicating lesser degree of
 
 2           culpability suffices to establish its commission.
 
 3      (5)] (2)  The court is not obligated to charge the jury with
 
 4 respect to an included offense, unless there is a rational basis
 
 5 in the evidence for a verdict acquitting the defendant of the
 
 6 offense charged and convicting the defendant of the included
 
 7 offense.
 
 8      (3)  If the defendant is convicted of multiple offenses and
 
 9 one or more of the convictions are for offenses included in other
 
10 offenses for which the defendant also has been convicted, then
 
11 any merger of the convictions shall be determined at the time of
 
12 sentencing by the sentencing judge."
 
13      SECTION 3.  Section 701-110, Hawaii Revised Statutes, is
 
14 amended to read as follows:
 
15      "§701-110  When prosecution is barred by former prosecution
 
16 for the same offense.  When a prosecution is for an offense under
 
17 the same statutory provision and is based on the same facts as a
 
18 former prosecution, it is barred by the former prosecution under
 
19 any of the following circumstances:
 
20      (1)  The former prosecution resulted in an acquittal [which]
 
21           that has not subsequently been set aside.  There is an
 
22           acquittal if the prosecution resulted in a finding of
 
23           not guilty by the trier of fact or in a determination
 

 
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 1           by the court that there was insufficient evidence to
 
 2           warrant a conviction.  [A finding of guilty of a lesser
 
 3           included offense is an acquittal of the greater
 
 4           inclusive offense, although the conviction is
 
 5           subsequently set aside on appeal by the defendant.]
 
 6      (2)  The former prosecution was terminated, after the
 
 7           information had been filed or the indictment found, by
 
 8           a final order or judgment for the defendant[, which]
 
 9           that has not been set aside, reversed, or vacated and
 
10           [which] that necessarily required a determination
 
11           inconsistent with a fact or a legal proposition that
 
12           must be established for conviction of the offense.
 
13     [(3)  The former prosecution resulted in a conviction.  There
 
14           is a conviction if the prosecution resulted in a
 
15           judgment of conviction which has not been reversed or
 
16           vacated, a verdict of guilty which has not been set
 
17           aside and which is capable of supporting a judgment, or
 
18           a plea of guilty or nolo contendere accepted by the
 
19           court.
 
20      (4)] (3)  The former prosecution was improperly terminated.
 
21           Except as provided in this subsection, there is an
 
22           improper termination of a prosecution if the
 
23           termination is for reasons not amounting to an
 

 
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 1           acquittal, and it takes place after the first witness
 
 2           is sworn but before verdict.  Termination under any of
 
 3           the following circumstances is not improper:
 
 4           (a)  The defendant consents to the termination or
 
 5                waives, by motion to dismiss or otherwise, the
 
 6                defendant's right to object to the termination.
 
 7           (b)  The trial court finds the termination is necessary
 
 8                because:
 
 9                (i)  It is physically impossible to proceed with
 
10                     the trial in conformity with law; [or]
 
11               (ii)  There is a legal defect in the proceedings
 
12                     [which] that would make any judgment entered
 
13                     upon a verdict reversible as a matter of law;
 
14                     [or]
 
15              (iii)  Prejudicial conduct, in or outside the
 
16                     courtroom, makes it impossible to proceed
 
17                     with the trial without injustice to either
 
18                     the defendant or the State; [or]
 
19               (iv)  The jury is unable to agree on a verdict; or
 
20                (v)  False statements of a juror on voir dire
 
21                     prevent a fair trial."
 
22      SECTION 4.  Section 701-111, Hawaii Revised Statutes, is
 
23 amended to read as follows:
 

 
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 1      "§701-111  When prosecution is barred by former prosecution
 
 2 for a different offense.  Although a prosecution is for a
 
 3 violation of a different statutory provision or is based on
 
 4 different facts, it is barred by a former prosecution under any
 
 5 of the following circumstances:
 
 6     [(1)  The former prosecution resulted in an acquittal which
 
 7           has not subsequently been set aside or in a conviction
 
 8           as defined in section 701-110(3) and the subsequent
 
 9           prosecution is for:
 
10           (a)  Any offense of which the defendant could have been
 
11                convicted on the first prosecution; or
 
12           (b)  Any offense for which the defendant should have
 
13                been tried on the first prosecution under section
 
14                701-109 unless the court ordered a separate trial
 
15                of the offense; or
 
16           (c)  An offense based on the same conduct, unless:
 
17                (i)  The offense for which the defendant is
 
18                     subsequently prosecuted requires proof of a
 
19                     fact not required by the former offense and
 
20                     the law defining each of the offenses is
 
21                     intended to prevent a substantially different
 
22                     harm or evil; or
 
23               (ii)  The second offense was not consummated when
 

 
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 1                     the former trial began.
 
 2      (2)] (1)  The former prosecution was terminated by an
 
 3           acquittal or by a final order or judgment for the
 
 4           defendant [which] that has not been set aside,
 
 5           reversed, or vacated and which acquittal, final order,
 
 6           or judgment necessarily required a determination
 
 7           inconsistent with a fact [which] that must be
 
 8           established for conviction of the second offense.
 
 9     [(3)] (2)  The former prosecution was improperly terminated,
 
10           as improper termination is defined in section
 
11           [701-110(4),] 701-110(3), and the subsequent
 
12           prosecution is for an offense of which the defendant
 
13           could have been convicted had the former prosecution
 
14           not been improperly terminated."
 
15      SECTION 5.  This Act does not affect rights and duties that
 
16 matured, penalties that were incurred, and proceedings that were
 
17 begun, before its effective date.
 
18      SECTION 6.  Statutory material to be repealed is bracketed.
 
19 New statutory material is underscored.
 
20      SECTION 7.  This Act shall take effect upon its approval.
 
21 
 
22                           INTRODUCED BY:_________________________