§705-502 Grading of criminal attempt.
An attempt to commit a crime is an offense of the same class and grade as the
most serious offense which is attempted. [L 1972, c 9, pt of §1]
COMMENTARY ON §705-502
For purposes of sentencing, the Code equates the criminal
attempt with the most serious substantive offense attempted. Only in the case
where the crime attempted is murder does the Code authorize a different
sentence for the substantive offense than for the attempt. This is because
§706-606 provides a special sentence for murder. Attempted murder is treated
as an ordinary class A felony.
The dispositions[1] (suspension of sentence, probation,
imprisonment, etc.) authorized by chapter 706 of the Code are intended to
provide primarily a flexible and corrective process. The court's order should
be determined by the need for correction as demonstrated by the anti-social
disposition (propensities) of the defendant. This being the case, there is
generally no difference in the sanctions which ought to be available to the
court when a crime is attempted but not consummated. However, where the offense
attempted is murder, the unique sentence authorized for that crime is not
imposed. Instead, the attempt is treated as any other class A felony. Because
§706-606 requires mandatory imprisonment, possibly for life, there is room to
economize on sentencing for attempted murder. The various modes of disposition
available for a class A felony ought to suffice for correctional needs.
Under previous Hawaii law, the sentencing of attempts is
structurally similar to that provided in the Code, except that Hawaii law
formerly provided a maximum term of imprisonment of twenty years,[2] whereas
the Code, in making the most serious attempt a class A felony, provides for an
extended term in cases presenting aggravating circumstances.[3]
Case Notes
Attempted murder is treated as ordinary class A felony. 57
H. 418, 558 P.2d 1012 (1976).
__________
§705-502 Commentary:
1. The word "disposition" is used in the Penal Code
and its commentary with two different meanings. In chapter 705 and elsewhere
the commentary refers to the actor's disposition; the word is used in this
context to refer to the actor's anti-social propensities. Chapter 706 deals
with the disposition of convicted defendants. That chapter deals with
procedures to be followed and available sanctions upon conviction (i.e.,
suspension of sentence or imposition of a sentence or imposition of a sentence
ordering probation, fine, or imprisonment).
2. H.R.S. §702-5.
3. Cf. chapter 706, Disposition of Convicted Defendants.
Notes of Decisions
Cited in
13
cases (
3 in the last 5 years), 1976–2022 · leading case:
State v. Alo, 558 P.2d 1012 (Haw. 1976).
State v. Alo, 558 P.2d 1012 (Haw. 1976).
· cites it 12× “This was in seeming conformity with the provisions of HRS § 705-502 (1975 Special Supp.) and HRS § 707-701 (1975 Special Supp.”
State v. Kaakimaka, 933 P.2d 617 (Haw. 1997).
· cites it 7× “HRS § 705-502 (1985) provided that “[a]n attempt to commit a crime is an offense of the same class and grade as the most serious offense which is attempted.”
State v. Aplaca, 25 P.3d 792 (Haw. 2001).
· cites it 4× “offense which is attempted,” HRS § 705-502, see supra note 2, and second degree murder committed under the “aggravated circumstances” set forth in HRS § 706-660.”
State v. Kinnane, 897 P.2d 973 (Haw. 1995).
· cites it 4× “HRS § 705-502 (1985), entitled “Grading of criminal attempt,” provides that ”[a]n attempt to commit a crime is an offense of the same class and grade as the most serious offense which is attempted.”
State v. Malufau, 906 P.2d 612 (Haw. 1995).
· cites it 2× “HRS § 705-502 (1993). In that sense, it is not a “lesser” included offense.”
State v. Soto, 933 P.2d 66 (Haw. 1997).
· cites it 2× “HRS § 705-502 (1985) provided that “[a]n attempt to commit a crime is an offense of the same class and grade as the most serious offense which is attempted.”
State v. Pedro., 488 P.3d 1235 (Haw. 2021).
· cites it 2× “HRS §§ 705-502, 707-720, 707-730. Each of these class A felonies is punishable by an indeterminate term of imprisonment of twenty years without the possibility of suspension of sentence or probation.”
State v. Tran, 378 P.3d 1014 (Haw. App. 2016).
· cites it 2× “In addition, HRS § 705-502 (1993) provided at the time of the alleged offense, as it does now, that "[a]n attempt to commit a crime is an offense of the same class and grade as the most serious offense which is attempted.”
State v. Morishige, 652 P.2d 1119 (Haw. 1982).
· cites it 2× “The claim of “surprise” stems from the State’s neglect to disclose the names of the two and the nature of their anticipated testimony in advance of trial, despite a pre-trial request for particular information regarding prospective prosecution witnesses made pursuant to Rule 16,…”
State v. Meyers, 145 P.3d 821 (Haw. App. 2006).
· cites it 2× “HRS § 705-502 (1993). Given this circumstance, Robert’s counsel may not have wanted to emphasize to the jury that Robert could be convicted of Attempted Assault 1 if Robert intended to cause serious bodily injury, even if the actual injuries sustained by the CW did not amount to…”
State v. Guerrios, 774 P.2d 246 (Haw. App. 1989).
· cites it 2× “1988) and HRS § 705-502 (1985). Count III is a class C felony, HRS § 707-711(2) (Supp.”
State v. Lafoga. Consol. With Case No. CAAP-20-0000589., 510 P.3d 1098 (Haw. App. 2022).
· cites it 18× “The State urges this court to read HRS §§ 705-502 and 706-661 together, to conclude that attempted second degree murder "clearly does not fall under any of the other classes of felonies," and thus, the offense should be included in subsection (1).”
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