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Hawaii Revised Statutes

Haw. Rev. Stat. § 706-620 (2026)

  Authority to withhold sentence of imprisonment

✓ current as of July 2026
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PART II.  PROBATION

 

Note

 

  Part heading amended by L 1986, c 314, §20.

 

Law Journals and Reviews

 

  The Abandonment of Punishment.  16 HBJ, no. 2, at 63 (1981).

 

     §706-620  Authority to withhold sentence of imprisonment.  A defendant who has been convicted of a crime may be sentenced to a term of probation unless:

     (1)  The crime is first or second degree murder or attempted first or second degree murder;

     (2)  The crime is a class A felony, except class A felonies defined in chapter 712, part IV, and by section 707‑702;

     (3)  The defendant is a repeat offender under section 706‑606.5;

     (4)  The defendant is a felony firearm offender as defined in section 706-660.1(2);

     (5)  The crime involved the death of or the infliction of serious or substantial bodily injury upon a child, an elder person, or a handicapped person under section 706-660.2; or

     (6)  The crime is cruelty to animals where ten or more pet animals were involved under section 711-1108.5 or 711‑1109. [L 1972, c 9, pt of §1; am L 1986, c 314, §21; am L 1988, c 89, §2; am L 1990, c 67, §8; am L 1994, c 229, §1; am L 1996, c 197, §1; am L 2013, c 210, §1]

 

COMMENTARY ON §706-620

 

  The broad discretion vested in the court by §706-605 with respect to choosing between and among various authorized dispositions necessitates some statutory guidelines for the exercise of that discretion.  This section states a policy in favor of withholding a sentence of imprisonment unless, as stated, there is (1) undue risk by repetitive criminal behavior, (2) need for institutionalized correctional facilities, or (3) need to reflect the seriousness of the crime which, under the circumstances of the case, can only be accomplished by imprisonment.  The general policy of this section is supplemented by a statement in the following section of grounds which, while not controlling the discretion of the court, should be accorded weight in favor of withholding a sentence of imprisonment.

  Previous Hawaii law, while favoring probation or suspension of sentence by implication, gave the court a free hand--but no guidance--in selecting the proper sentence or disposition.

  Every circuit court, when it appears to its satisfaction that the ends of justice and the best interests of the public as well as of the defendant in a criminal case will be subserved thereby, may after conviction or after a plea of guilty or nolo contendere (except in cases of [certain specified crimes[1]]) suspend the imposition or execution of sentence, in full or in part, and place the defendant upon probation for such period and upon such terms and conditions as it may deem best.[2]

  The Code seeks to provide more definitive criteria for the exercise of the broad discretion vested in the court.

 

SUPPLEMENTAL COMMENTARY ON §706-620

 

  Act 89, Session Laws 1988, amended this section for the purpose of mandating harsher penalties for crimes against victims who are less able to protect themselves.  The legislature found that passage of these amendments afforded a greater measure of protection for the groups enumerated in this section.  House Standing Committee Report No. 459-88, Senate Standing Committee Report No. 2544.

  Act 229, Session Laws 1994, amended this section to allow the court discretion to sentence a defendant convicted of a class A felony drug offense (as defined in chapter 712, part IV) to probation.  The legislature believed that, in certain instances, the public is better served by allowing judges some discretion in evaluating all appropriate sentencing and treatment alternatives available for drug offenders.  Conference Committee Report No. 62.

  Act 197, Session Laws 1996, amended this section to retain probation for the offense of manslaughter, which the Act made a class A felony.  The legislature believed that courts should still be given the discretion to sentence a person to probation in "extremely rare circumstances where strong mitigating circumstances exist."  Conference Committee Report No. 71.

  Act 210, Session Laws 2013, amended this section to prohibit sentencing a defendant to a term of probation if the defendant is convicted of cruelty to animals in the first or second degree involving ten or more pet animals.  Conference Committee Report No. 74.

 

Law Journals and Reviews

 

  Elder Abuse and Laws to Protect Older Persons in Hawaii.  15 HBJ, no. 13, at 93 (2013).

 

Case Notes

 

  Exercise of court's discretion in applying these standards is not reviewable on appeal in absence of abuse.  60 H. 314, 588 P.2d 929 (1979).

  Defendant's arrest and conviction for two petty misdemeanors while awaiting sentencing for another conviction demonstrates "undue risk" justifying imprisonment.  4 H. App. 566, 670 P.2d 834 (1983).

  Cited:  73 H. 81, 829 P.2d 1325 (1992).

 

__________

§706-620 Commentary:

 

1.  Cf. commentary on §706-605.

 

2.  H.R.S. §711-77.

 

 

Notes of Decisions
Cited in 27 cases (2 in the last 5 years), 1979–2024 · leading case: State v. Rivera, 102 P.3d 1044 (Haw. 2004).
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State v. Rivera, 102 P.3d 1044 (Haw. 2004). · cites it 8× “Among the options available in arriving at an appropriate sentence is probation, HRS § 706-620 (Supp.2003), [9] a suspended sentence, HRS § 706-622 (1993), [10] and imprisonment, e.”
State v. Sinagoga, 918 P.2d 228 (Haw. App. 1996). · cites it 12× “Such a conviction shall be graded, for purposes of section 706-620 by comparing the maximum imprisonment authorized under the law of such other jurisdiction with the maximum imprisonment authorized for the relevant grade of felony.”
State v. Medeiros., 454 P.3d 1069 (Haw. 2019). · cites it 16× “It is therefore unsurprising that, pursuant to HRS § 853-4(a)(5), HRS § 706-620 and Chapter 853 operate together to provide that defendants are ineligible to 16 *** FOR PUBLICATION IN WEST’S HAWAI I REPORTS AND PACIFIC REPORTER *** benefit from Chapter 853 where the underlying…”
State v. Fields, 686 P.2d 1379 (Haw. 1984). · cites it 4× “See HRS §§ 706-620 to 706-624. It is a creature of judicial ingenuity presumably founded on the discretion vested in the sentencing court to saddle a probationer with any condition "reasonably related to [his] rehabilitation .”
State v. Jumila, 950 P.2d 1201 (Haw. 1998). · cites it 4× “…whether mandatory minimum terms constitute "punishment." Chapter 706 includes sections addressing probation (HRS §§ 706-620 to 706-631), fines (HRS §§ 706-640 to 706-645), terms of imprisonment for first and second degree murder and attempted first and second degree…”
State v. Casugay-Badiang. , 305 P.3d 437 (Haw. 2013). · cites it 6× “8(3) expressly excluded sentencing under HRS §§ 706-620, -640, -641, -660, and - 669, but HRS § 706-667 was not among that list.”
State v. Putnam, 3 P.3d 1239 (Haw. 2000). · cites it 4× “The provisions relating to probation, HRS §§ 706-620 to -631, are part of chapter 706 of the Hawai'i Penal Code, which concerns the “disposition of convicted defendants.”
State v. Walker, 100 P.3d 595 (Haw. 2004). · cites it 3× “HRS § 706-620(3) (Supp.2003) provides in relevant part that "[a] defendant who has been convicted of a crime may be sentenced to a term of probation unless .”
State v. Solomon, 111 P.3d 12 (Haw. 2005). · cites it 2× “5 HRS § 706-620 (Supp.2004). Once a probation sentence is imposed, a defendant must comply with the mandatory and discretionary conditions set by the sentencing court.”
State v. Bovee., 394 P.3d 760 (Haw. 2017). · cites it 2× “After the incorporation of second-degree methamphetamine trafficking into HRS § 712-1242(1)(c), which remains classified as a class B felony (see HRS § 712-1242(2)), a person convicted of the offense may now be sentenced to a term of probation under HRS § 706-620 (Supp. 2016) or…”
State v. Viloria, 759 P.2d 1376 (Haw. 1988). · cites it 4× “See HRS § 706-620 (1976). 3 In 1985, when the sentencing court revoked Defendant’s probation and reimposed another five year probationary sentence, the law required such a revocation in two situations.”
State v. Kamana'o, 188 P.3d 724 (Haw. 2008). · cites it 2× “Commentary on HRS § 706-620 (stating that *221 there is a presumption against imprisonment “unless .”
Show all 27 citing cases →
— Haw. Rev. Stat. § 706-620(1) — 3 cases
State v. Palama, 612 P.2d 1168 (Haw. 1980).
State v. Teves, 670 P.2d 834 (Haw. App. 1983).
State v. Lafoga. Consol. With Case No. CAAP-20-0000589., 510 P.3d 1098 (Haw. App. 2022).
— Haw. Rev. Stat. § 706-620(3) — 7 cases
State v. Sinagoga, 918 P.2d 228 (Haw. App. 1996). “Such a conviction shall be graded, for purposes of section 706-620 by comparing the maximum imprisonment authorized under the law of such other jurisdiction with the maximum imprisonment authorized for the relevant grade of felony.”
State v. Walker, 100 P.3d 595 (Haw. 2004). “HRS § 706-620(3) (Supp.2003) provides in relevant part that "[a] defendant who has been convicted of a crime may be sentenced to a term of probation unless .”
State v. Pali., 300 P.3d 1022 (Haw. 2013).
State v. Casugay-Badiang. , 305 P.3d 437 (Haw. 2013). “8(3) expressly excluded sentencing under HRS §§ 706-620, -640, -641, -660, and - 669, but HRS § 706-667 was not among that list.”
State v. Kicklighter, 588 P.2d 929 (Haw. 1979).
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