REPORT TITLE:
Probation Service Fee


DESCRIPTION:
Allows a court, upon sentencing a defendant to probation,
deferring a guilty plea, or deferring a plea of nolo contendere,
to order the defendant to pay a probation service fee of $100 for
a term of more than one year, or $50 for a term of one year or
less.  Establishes the probation services special fund. (HB2648
HD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2648
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   A  BILL  FOR  AN  ACT
RELATING TO PROBATION.



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

 1      SECTION 1.  Chapter 353, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "§353-     Probation services fee; assessment.  Any
 
 5 defendant received for supervision pursuant to section 353-81
 
 6 shall be assessed a probation services fee pursuant to section
 
 7 706-A."
 
 8      SECTION 2.  Chapter 706, Hawaii Revised Statutes, is amended
 
 9 by adding two new sections to part III to be appropriately
 
10 designated and to read as follows:
 
11      "§706-A  Probation services fee.  (1)  The court, when
 
12 sentencing a defendant to probation, deferring a guilty plea, or
 
13 deferring a plea of nolo contendere, may order the defendant to
 
14 pay a probation services fee.  The amount of the fee shall be as
 
15 follows:
 
16      (a)  $100, when the term of probation is for more than one
 
17           year; or
 
18      (b)  $50, when the term of probation is for one year or
 
19           less;
 
20 provided that no fee shall be ordered when the court determines
 

 
Page 2                                                     2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1 that the defendant is unable to pay the fee.
 
 2      (2)  The entire fee ordered or assessed shall be payable
 
 3 forthwith by cash, check, or by a credit card approved by the
 
 4 court.  When a defendant is also ordered to pay a fine, make
 
 5 restitution to the victim, or provide child support, the payment
 
 6 of the fee shall have priority over the payment of the fine.
 
 7      (3)  Any defendant received for supervision pursuant to
 
 8 section 353-81 shall be assessed a probation services fee
 
 9 pursuant to this section.
 
10      (4)  The defendant shall pay the fee to the clerk of the
 
11 court.  The fee shall be deposited with the director of finance
 
12 who shall transmit the fee to the probation services special fund
 
13 pursuant to section 706-B.
 
14      §706-B  Probation services special fund.  (1)  There is
 
15 established in the state treasury a special fund to be known as
 
16 the probation services special fund.  All probation services fees
 
17 collected under section 706-A shall be deposited into this fund.
 
18      (2)  Moneys in the probation services special fund shall be
 
19 used by the judiciary to monitor, enforce, and collect fees,
 
20 fines, restitution, other monetary obligations owed by
 
21 defendants, and other terms and conditions of probation.
 
22      (3)  The probation services special fund shall be exempt
 

 
 
 
Page 3                                                     2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1 from transfers for central service expenses pursuant to section
 
 2 36-27, and reimbursements for departmental administration
 
 3 expenses pursuant to section 36-30."
 
 4      SECTION 3.  Chapter 853, Hawaii Revised Statutes, is amended
 
 5 by adding a new section to be appropriately designated and to
 
 6 read as follows:
 
 7      "§853-     Probation services fee; assessment.  A court,
 
 8 upon deferring a guilty plea or a plea of nolo contendere, shall
 
 9 order the defendant to pay a probation services fee pursuant to
 
10 section 706-A."
 
11      SECTION 4.  Section 36-27, Hawaii Revised Statutes, is
 
12 amended to read as follows:
 
13      "§36-27  Transfers from special funds for central service
 
14 expenses.  Except as provided in this section, and
 
15 notwithstanding any other law to the contrary, from time to time,
 
16 the director of finance, for the purpose of defraying the
 
17 prorated estimate of central service expenses of government in
 
18 relation to all special funds, except the:
 
19      (1)  Special summer school and intersession fund under
 
20           section 302A-1310;
 
21      (2)  School cafeteria special funds of the department of
 
22           education;
 
23      (3)  Special funds of the University of Hawaii;
 

 
Page 4                                                     2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1      (4)  State educational facilities improvement special fund;
 
 2      (5)  Convention center capital and operations special fund
 
 3           under section 206X-10.5;
 
 4      (6)  Special funds established by section 206E-6;
 
 5      (7)  Housing loan program revenue bond special fund;
 
 6      (8)  Housing project bond special fund;
 
 7      (9)  Aloha Tower fund created by section 206J-17;
 
 8     (10)  Domestic violence prevention special fund under section
 
 9           321-1.3;
 
10     (11)  Spouse and child abuse special account under section
 
11           346-7.5;
 
12     (12)  Spouse and child abuse special account under section
 
13           601-3.6;
 
14     (13)  Funds of the employees' retirement system created by
 
15           section 88-109;
 
16     (14)  Unemployment compensation fund established under
 
17           section 383-121;
 
18     (15)  Hawaii hurricane relief fund established under chapter
 
19           431P;
 
20     (16)  Hawaii health systems corporation special funds;
 
21     (17)  Boiler and elevator safety revolving fund established
 
22           under section 397-5.5;
 
23     (18)  Tourism special fund established under section 201B-11;
 

 
Page 5                                                     2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1     (19)  Department of commerce and consumer affairs' special
 
 2           funds;
 
 3     (20)  Compliance resolution fund established under section
 
 4           26-9;
 
 5     (21)  Universal service fund established under chapter 269;
 
 6     (22)  Integrated tax information management systems special
 
 7           fund under section 231-3.2;
 
 8     (23)  Insurance regulation fund under section 431:2-215;
 
 9     (24)  Hawaii tobacco settlement special fund under section
 
10           328L-2; [and]
 
11     (25)  Emergency budget and reserve fund under section 328L-3;
 
12           and
 
13     (26)  Probation services special fund under section 706-B;
 
14 shall deduct five per cent of all receipts of all other special
 
15 funds, which deduction shall be transferred to the general fund
 
16 of the State and become general realizations of the State.  All
 
17 officers of the State and other persons having power to allocate
 
18 or disburse any special funds shall cooperate with the director
 
19 in effecting these transfers.  To determine the proper revenue
 
20 base upon which the central service assessment is to be
 
21 calculated, the director shall adopt rules pursuant to chapter 91
 
22 for the purpose of suspending or limiting the application of the
 
23 central service assessment of any fund.  No later than twenty
 

 
Page 6                                                     2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1 days prior to the convening of each regular session of the
 
 2 legislature, the director shall report all central service
 
 3 assessments made during the preceding fiscal year."
 
 4      SECTION 5.  Section 36-30, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (a) to read as follows:
 
 6      "(a)  Each special fund, except the:
 
 7      (1)  Transportation use special fund established by section
 
 8           261D-1;
 
 9      (2)  Special summer school and intersession fund under
 
10           section 302A-1310;
 
11      (3)  School cafeteria special funds of the department of
 
12           education;
 
13      (4)  Special funds of the University of Hawaii;
 
14      (5)  State educational facilities improvement special fund;
 
15      (6)  Special funds established by section 206E-6;
 
16      (7)  Aloha Tower fund created by section 206J-17;
 
17      (8)  Domestic violence prevention special fund under section
 
18           321-1.3;
 
19      (9)  Spouse and child abuse special account under section
 
20           346-7.5;
 
21     (10)  Spouse and child abuse special account under section
 
22           601-3.6;
 
23     (11)  Funds of the employees' retirement system created by
 

 
Page 7                                                     2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1           section 88-109;
 
 2     (12)  Unemployment compensation fund established under
 
 3           section 383-121;
 
 4     (13)  Hawaii hurricane relief fund established under chapter
 
 5           431P;
 
 6     (14)  Convention center capital and operations special fund
 
 7           established under section 206X-10.5;
 
 8     (15)  Hawaii health systems corporation special funds;
 
 9     (16)  Tourism special fund established under section 201B-11;
 
10     (17)  Compliance resolution fund established under section
 
11           26-9;
 
12     (18)  Universal service fund established under chapter 269;
 
13     (19)  Integrated tax information management systems special
 
14           fund;
 
15     (20)  Insurance regulation fund under section 431:2-215;
 
16     (21)  Hawaii tobacco settlement special fund under section
 
17           328L-2; [and]
 
18     (22)  Emergency and budget reserve fund under section 328L-3;
 
19           and
 
20     (23)  Probation services special fund under section 706-B;
 
21 shall be responsible for its pro rata share of the administrative
 
22 expenses incurred by the department responsible for the
 
23 operations supported by the special fund concerned."
 

 
Page 8                                                     2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1      SECTION 6.  Chapter 706, Hawaii Revised Statutes, is amended
 
 2 by amending the title of part III to read as follows:
 
 3             "PART III.  FEES, FINES, AND RESTITUTION"
 
 4      SECTION 7.  Section 706-624, Hawaii Revised Statutes, is
 
 5 amended by amending subsection (2) to read as follows:
 
 6      "(2)  Discretionary conditions.  The court may provide, as
 
 7 further conditions of a sentence of probation, to the extent that
 
 8 the conditions are reasonably related to the factors set forth in
 
 9 section 706-606 and to the extent that the conditions involve
 
10 only deprivations of liberty or property as are reasonably
 
11 necessary for the purposes indicated in section 706-606(2), that
 
12 the defendant:
 
13      (a)  Serve a term of imprisonment not exceeding one year in
 
14           felony cases, and not exceeding six months in
 
15           misdemeanor cases; provided that notwithstanding any
 
16           other provision of law, any order of imprisonment under
 
17           this subsection that provides for prison work release
 
18           shall require the defendant to pay thirty per cent of
 
19           the defendant's gross pay earned during the prison work
 
20           release period to satisfy any restitution order.  The
 
21           payment shall be handled by the adult probation
 
22           division and shall be paid to the victim on a monthly
 
23           basis;
 

 
Page 9                                                     2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1      (b)  Perform a specified number of hours of services to the
 
 2           community as described in section 706-605(1)(e);
 
 3      (c)  Support the defendant's dependents and meet other
 
 4           family responsibilities;
 
 5      (d)  Pay a fee as specified in section 706-A;
 
 6     [(d)] (e)  Pay a fine imposed pursuant to section
 
 7           706-605(1)(b);
 
 8     [(e)] (f)  Make restitution as specified in section
 
 9           706-605(1)(d);
 
10     [(f)] (g)  Work conscientiously at suitable employment or
 
11           pursue conscientiously a course of study or vocational
 
12           training that will equip the defendant for suitable
 
13           employment;
 
14     [(g)] (h)  Refrain from engaging in a specified occupation,
 
15           business, or profession bearing a reasonably direct
 
16           relationship to the conduct constituting the crime or
 
17           engage in the specified occupation, business, or
 
18           profession only to a stated degree or under stated
 
19           circumstances;
 
20     [(h)] (i)  Refrain from frequenting specified kinds of places
 
21           or from associating unnecessarily with specified
 
22           persons, including but not limited to the victim of the
 
23           crime, any witnesses, regardless of whether they
 

 
Page 10                                                    2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1           actually testified in the prosecution, law enforcement
 
 2           officers, co-defendants, or other individuals with whom
 
 3           contact may adversely affect the rehabilitation or
 
 4           reformation of the person convicted;
 
 5     [(i)] (j)  Refrain from use of alcohol or any use of narcotic
 
 6           drugs or controlled substances without a prescription;
 
 7     [(j)] (k)  Refrain from possessing a firearm, destructive
 
 8           device, or other dangerous weapon;
 
 9     [(k)] (l)  Undergo available medical, psychiatric, or
 
10           psychological treatment, including treatment for drug
 
11           or alcohol dependency, and remain in a specified
 
12           institution if required for that purpose;
 
13     [(l)] (m)  Reside in a specified place or area or refrain
 
14           from residing in a specified place or area;
 
15     [(m)] (n)  Submit to periodic urinalysis or other similar
 
16           testing procedure;
 
17     [(n)] (o)  Satisfy other reasonable conditions as the court
 
18           may impose;
 
19     [(o)] (p)  Refrain from entering specified geographical areas
 
20           without the court's permission; or
 
21     [(p)] (q)  Refrain from leaving the person's dwelling place
 
22           except to go to and from the person's place of
 
23           employment, the office of the person's physician or
 

 
Page 11                                                    2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1           dentist, the probation office or as may be granted by
 
 2           the person's probation officer pursuant to court order.
 
 3           As used in this paragraph, "dwelling place" includes
 
 4           the person's yard or, in the case of condominiums, the
 
 5           common elements."
 
 6      SECTION 8.  Section 706-644, Hawaii Revised Statutes, is
 
 7 amended to read as follows:
 
 8      "§706-644  Consequences of nonpayment; imprisonment for
 
 9 contumacious nonpayment; summary collection.(1)  When a
 
10 defendant is sentenced pursuant to section 706-605, granted a
 
11 conditional discharge pursuant to section 712-1255, or granted a
 
12 deferred plea pursuant to chapter 853, and the defendant is
 
13 ordered to pay a fee, fine, or restitution, whether as an
 
14 independent order, as part of a judgment and sentence, or as a
 
15 condition of probation or deferred plea, and the defendant
 
16 defaults in the payment thereof or of any installment, the court,
 
17 upon the motion of the prosecuting attorney or upon its own
 
18 motion, may require the defendant to show cause why the
 
19 defendant's default should not be treated as contumacious and may
 
20 issue a summons or a warrant of arrest for the defendant's
 
21 appearance.  Unless the defendant shows that the defendant's
 
22 default was not attributable to an intentional refusal to obey
 
23 the order of the court, or to a failure on the defendant's part
 

 
Page 12                                                    2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1 to make a good faith effort to obtain the funds required for the
 
 2 payment, the court shall find that the defendant's default was
 
 3 contumacious and may order the defendant committed until the fee,
 
 4 fine, restitution, or a specified part thereof is paid.
 
 5      (2)  When a fee, fine, or restitution is imposed on a
 
 6 corporation or unincorporated association, it is the duty of the
 
 7 person or persons authorized to make disbursement from the assets
 
 8 of the corporation or association to pay it from those assets,
 
 9 and their failure to do so may be held contumacious unless they
 
10 make the showing required in subsection (1).
 
11      (3)  The term of imprisonment for nonpayment of fee, fine,
 
12 or restitution shall be specified in the order of commitment, and
 
13 shall not exceed one day for each $25 of the fee or fine, thirty
 
14 days if the fee or fine was imposed upon conviction of a
 
15 violation or a petty misdemeanor, or one year in any other case,
 
16 whichever is the shorter period.  A person committed for
 
17 nonpayment of a fee or fine shall be given credit toward payment
 
18 of the fee or fine for each day of imprisonment, at the rate of
 
19 $25 per day.
 
20      (4)  If it appears that the defendant's default in the
 
21 payment of a fee, fine, or restitution is not contumacious, the
 
22 court may make an order allowing the defendant additional time
 
23 for payment, reducing the amount of each installment, or revoking
 

 
Page 13                                                    2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1 the fee, fine, or the unpaid portion thereof in whole or in part,
 
 2 or converting the unpaid portion of the fee or fine to community
 
 3 service.  A defendant shall not be discharged from an order to
 
 4 pay restitution until the full amount of the restitution has
 
 5 actually been collected or accounted for.
 
 6      (5)  Unless discharged by payment or, in the case of a fee
 
 7 or fine, service of imprisonment pursuant to subsection (3), an
 
 8 order to pay a fee, fine, or restitution, whether as an
 
 9 independent order, as a part of a judgment and sentence, or as a
 
10 condition of probation or deferred plea pursuant to chapter 853,
 
11 may be collected in the same manner as a judgment in a civil
 
12 action.  The State or the victim named in the order may collect
 
13 the restitution, including costs, interest, and attorney's fees,
 
14 pursuant to section 706-646.  The State may collect the fee or
 
15 fine, including costs, interest, and attorney's fees pursuant to
 
16 section 706-647.
 
17      (6)  Attorney's fees, costs, and interest shall not be
 
18 deemed part of the penalty, and no person shall be imprisoned
 
19 under this section in default of payment of attorney's fees,
 
20 costs, and interest."
 
21      SECTION 9.  There is appropriated from the probation
 
22 services special fund, the sum of $          , or so much thereof
 
23 as may be necessary for fiscal year 2000-2001, and the sum of $
 

 
Page 14                                                    2648
                                     H.B. NO.           H.D. 1
                                                        
                                                        


 1          , or so much thereof as may be necessary for fiscal year
 
 2 2001-2002, to carry out the purposes of this Act.  The sums
 
 3 appropriated shall be expended by the judiciary.
 
 4      SECTION 10.  In codifying the new sections added to chapter
 
 5 706, Hawaii Revised Statutes, by section 2 of this Act, the
 
 6 revisor of statutes shall substitute appropriate section numbers
 
 7 for the letters used in designating the new sections in this Act.
 
 8      SECTION 11.  This Act shall not affect rights and duties
 
 9 that matured, penalties that were incurred, and proceedings that
 
10 were begun, before its effective date.
 
11      SECTION 12.  Statutory material to be repealed is bracketed.
 
12 New statutory material is underscored.
 
13      SECTION 13.  This Act shall take effect on July 1, 2000;
 
14 provided that amendments made to section 36-27 by this Act shall
 
15 not be repealed when that section is reenacted on July 31, 2003,
 
16 pursuant to section 9 of Act 142, Session Laws of Hawaii 1998.