SB2936

Report Title:

Crimes; Criminal Procedure

Description:

Requires that cases in which a person has been charged with a criminal offense be expeditiously adjudicated.

THE SENATE	S.B. NO.	2936
TWENTY-THIRD LEGISLATURE, 2006
STATE OF HAWAII

A BILL FOR AN ACT

relating to criminal procedure.

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

SECTION 1. Chapter 801, Hawaii Revised Statutes, is amended by adding five new sections to be appropriately designated and to read as follows:

"§801-A Time limits and exclusion. (a) In any case involving a defendant charged with an offense, the appropriate judicial officer, at the earliest practicable time, after consultation with the counsel for the defendant and the prosecuting attorney, shall set the case for trial on a certain day, or list it for trial, so as to ensure a speedy trial.

(b) Any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which the individual was arrested or served with a summons in connection with the charges. If an individual has been charged with a felony in a circuit in which no grand jury has been in session for the thirty-day period, the period of time for filing the indictment shall be extended for an additional thirty days.

(c) In any case in which a plea of not guilty is entered, the trial of the defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date of the information or indictment, or from the date the defendant first appeared before a judicial officer in the court in which the charge is pending, whichever date occurred last.

(d) Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se.

(e) If any indictment or information is dismissed upon motion of the defendant, or any charge filed against the individual is dismissed or otherwise dropped, and thereafter an information is filed or indictment entered against the defendant for the an offense based upon the same offense or the same criminal episode, the provisions of subsections (b), (c) and (d) shall apply to the subsequent indictment or information.

(f) If the defendant is to be tried upon an indictment or information dismissed by a trial court and reinstated following an appeal, the trial shall commence within seventy days from the date the action occasioning the trial becomes final, except that the court retrying the case may extend the period for trial not to exceed one hundred and eighty days from the date the action occasioning the trial becomes final if the unavailability of a witness or other factors resulting from the passage of time shall make the trial within seventy days impractical. The periods of delay in subsection (h) are excluded from computing the time limitations in this section.

(g) If the defendant is to be tried again following a declaration by the trial judge of a mistrial or following an order for a new trial, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final. If the defendant is to be tried again following an appeal or a collateral attack, the trial shall commence within seventy days from the date the action occasioning the retrial becomes final, except that the court retrying the case may extend the period for retrial not to exceed one hundred and eighty days from the date of the action occasioning the retrial becomes final if unavailability of the witnesses or other factors resulting from the passage of time shall make trial within seventy days impractical. The period of delay in subsection (h) are excluded in computing the time limitations specified in this section.

(h) The following periods of delay shall be excluded in computing the time within which an information or indictment shall be filed, or in computing the time in which the trial of any offense shall commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to:

(A) Delay resulting from any proceeding, including any examinations, to determine the mental competency or physical capacity of the defendant;

(B) Delay resulting from any trial with respect to other charges against the defendant;

(D) Delay resulting from any deferral of prosecution pursuant to section 853;

(E) Delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on the motion, or other prompt disposition of the motion;

(F) Delay resulting from any proceeding relating to the transfer of the case or the removal of the defendant from another judicial circuit or district;

(G) Delay resulting from the transportation of the defendant from another circuit or district, or to and from places of examination or hospitalization, excluding any time in excess of ten days from the date of an order for removal or an order directing such transportation;

(H) Delay resulting from consideration by the court of a proposed plea agreement to be entered into by the defendant and prosecuting attorney; and

(I) Delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court;

(2) Any period of delay during which the prosecution of the case is deferred by the prosecuting attorney, with the approval of the defendant, and the approval of the court, for the purpose of allowing the defendant to demonstrate good conduct;

(3) Any period of delay resulting for the absence or unavailability of the defendant or an essential witness. For purposes of this paragraph, a defendant or an essential witness shall be considered absent when:

(A) The whereabouts of the defendant or witness are unknown and cannot be determined with due diligence; or

(B) When the defendant or witness's whereabouts are known but the defendant or witness's presence cannot be obtained by due diligence because the defendant or witness resists appearing in court;

(4) Any period of delay resulting from the fact that the defendant is mentally incompetent or physically unable to stand trial;

(5) If the information or indictment is dismissed upon motion of the prosecuting attorney and thereafter a charge is filed against the defendant for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge;

(6) A reasonable period of delay when the defendant is joined for trial with a codefendant for which the time for trial has not run and no motion for severance has been granted;

(7) Any period of delay resulting from a continuance granted by any judge on the judge's own motion or at the request of the defendant or prosecuting attorney, unless the court specifies that the period of delay is not excludable for the requirements of this section. No continuance under this section shall be granted because of:

(A) General congestion of the court's calendar; or

(B) Lack of preparation or failure to obtain available witnesses by the prosecuting attorney; and

(8) Any period of delay, not to exceed one year, ordered by a court upon application by a party and a finding by a preponderance of the evidence that an official request was made for evidence and it reasonably appears or reasonably appeared at the time of the request, that the evidence is or was in a foreign country.

(i) If the trial does not commence within the time limitations in this section because the defendant entered a plea of guilty or nolo contendre and the plea is subsequently withdrawn as to any or all charges in the indictment or information, the defendant shall be deemed indicted as to all charges contained within the meaning of this section on the day the order permitting the withdrawal of the plea becomes final.

(j) If the prosecuting attorney knows that a person charged with an offense is serving a term of imprisonment in a penal institution, the prosecuting attorney shall:

(1) File a detainer with the person having custody of the prisoner and request the custodian to advise the prisoner of his right to demand a trial; and

(2) Undertake to obtain the presence of the prisoner for trial.

(k) If the custodian of a prisoner receives a detainer under subsection (j)(1), the custodian shall:

(1) Promptly notify the prisoner of the charge and the right to demand a trial;

(2) Promptly give notice to the prosecuting attorney in the event that the prisoner demands a trial; and

(3) Release the prisoner to the temporary custody to the prosecuting attorney for the prisoner's presence at trial when the prosecuting attorney files a properly supported request for custody.

(l) If the defendant is absent, as defined in subsection (h)(3), on the day of trial and makes a subsequent appearance before the court on a bench warrant or other process:

(1) More than twenty-one days after the trial date, the defendant shall have been deemed to have first appeared before a judicial officer of the court in which the information or indictment is pending within the meaning of subsections (c) and (d) on the day of the defendant's subsequent appearance; or

(2) Not more than twenty-one days after the trial date, the time limit required by subsections (c) and (d) and extended by subsection (h), shall be further extended by twenty-one days.

§801-B Time computations. The time limitations in section 801-A shall apply to all individuals who are arrested or served with a summons on or after July 1, 2006.

§801-C Reports to the legislature. (a) The administrative director of the courts shall submit, to the legislature, periodic reports no less than once a fiscal year, detailing the following:

(1) Any recommendations for legislative changes or appropriations to achieve the time limits and objectives of section 801-A;

(2) Any pertinent information on the state of the criminal docket;

(3) The extent of pretrial detention and release;

(4) A description of the time limits, procedural techniques, innovations, systems, and other methods by which the trial or other disposition of criminal cases have been expedited in the courts;

(5) The reasons why, in those cases not in compliance with subsections (b), (c), and (d) of section 801-A, the provisions of 801-A(h) have not been adequate to accommodate reasonable periods of delay;

(6) The category of offenses, the number of defendants, and the number of counts involved in those cases which are not meeting the time limits specified in subsections (b), (c), and (d) of section 801-A;

(7) The additional judicial resources that would be necessary in order to achieve compliance with the time limitations in subsections (b), (c), and (d) of section 801-A; and

(8) The nature of remedial measures which have been employed to improve conditions and practices in those courts with low compliance experience under section 801-A or to promote the adoption of practices and procedures which have been successful in those courts with high compliance experience under section 801-A.

(b) The office of the prosecuting attorney for each county shall submit, to the legislature, periodic reports no less than once a fiscal year, detailing the following:

(1) The reasons why, in those cases not in compliance with subsections (b), (c), and (d) of section 801-A, the provisions of 801-A(h) have not been adequate to accommodate reasonable periods of delay;

(2) The nature of remedial measures which have been employed to improve conditions and practices in those courts with low compliance experience under section 801-A or to promote the adoption of practices and procedures which have been successful in those courts with high compliance experience under section 365-A;

(3) The additional resources for the offices of the prosecuting attorneys for each county which would be necessary to achieve compliance with section 365-A; and

(4) Suggested changes in guidelines, rules, or amendments which the offices of the prosecuting attorney for each county deems necessary to further improve the administration of justice and meet the objectives of section 801-A.

§801-D Rights of the accused. No provision of this section shall be interpreted as a bar to any claim or denial of a speedy trial as required by the constitution.

§801-E Sanctions. (a) In the case of any individual against whom a complaint is filed charging the individual with a criminal offense, if no information or indictment is filed within the time limits required by section 801-A, the charge against the individual shall be dismissed or otherwise dropped. In determining whether to dismiss the case with or without prejudice, the court shall consider, among other things, each of the following factors:

(1) The seriousness of the offense;

(2) The facts and circumstances of the case which led to dismissal; and

(3) The impact of re-prosecution on the administration of justice.

(b) If a defendant is not brought to trial within the time limits required by 801-A, the information or indictment shall be dismissed upon a motion by the defendant. The defendant shall have the burden of proof in supporting the motion. In determining whether to dismiss the case with or without prejudice, the court shall consider, among other things, each of the following factors:

(1) The seriousness of the offense;

(2) The facts and circumstances of the case which led to dismissal; and

(3) The impact of re-prosecution on the administration of justice.

(1) Knowingly allow the case to be set for trial without disclosing the fact that a necessary witness would be unavailable;

(2) File a motion solely for the purpose of delay, which the defense counsel or prosecuting attorney knows to be frivolous and without merit;

(3) Make a statement for the purpose of obtaining a continuance which is false and which is material to the granting of a continuance; or

(4) Otherwise willfully fail to proceed to trial without justification consistent with 801-A.

(d) The court may punish any attorney who violates subsection (c) as follows:

(1) In the case of an appointed defense counsel, by reducing the amount of compensation that otherwise would have been paid to the defense counsel by no more than twenty-five per cent;

(2) In the case of counsel retained by the defendant, by imposing a fine not to exceed twenty-five of the compensation to which the counsel is entitled in connection with the defense of the defendant;

(3) By imposing a fine on a prosecuting attorney of no more than $250;

(4) By denying the defense counsel or prosecuting attorney the right to practice before the court considering the case for a period of not more than ninety days; or

(5) By filing a report with the office of disciplinary counsel.

(e) The court shall follow any procedures established in the Hawaii rules of civil procedure in punishing any defense counsel or prosecuting attorney."

SECTION 2. New statutory material is underscored.

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. In codifying the new sections added by section 1 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 5. This Act shall take effect on July 1, 2006.

INTRODUCED BY:	_____________________________