§853-1 Deferred acceptance of guilty plea
or nolo contendere plea; discharge and dismissal, expungement of records.
(a) Upon proper motion as provided by this chapter:
(1) When a defendant voluntarily pleads guilty or
nolo contendere, prior to commencement of trial, to a felony, misdemeanor, or
petty misdemeanor;
(2) It appears to the court that the defendant is not
likely again to engage in a criminal course of conduct; and
(3) The ends of justice and the welfare of society do
not require that the defendant shall presently suffer the penalty imposed by
law,
the court, without accepting the plea of nolo
contendere or entering a judgment of guilt and with the consent of the
defendant and after considering the recommendations, if any, of the prosecutor,
may defer further proceedings.
(b) The proceedings may be deferred upon any
of the conditions specified by section 706-624. As a further condition, the
court shall impose a compensation fee pursuant to section 351-62.6 and a
probation services fee pursuant to section 706-648 upon every defendant who has
entered a plea of guilty or nolo contendere to a petty misdemeanor,
misdemeanor, or felony; provided that the court shall waive the imposition of a
compensation or probation services fee, if it finds that the defendant is
unable to pay the compensation or probation services fee. The court may defer
the proceedings for a period of time as the court shall direct but in no case
to exceed the maximum sentence allowable; provided that, if the defendant has
entered a plea of guilty or nolo contendere to a petty misdemeanor, the court
may defer the proceedings for a period not to exceed one year. The defendant
may be subject to bail or recognizance at the court's discretion during the
period during which the proceedings are deferred.
(c) Upon the defendant's completion of the
period designated by the court and in compliance with the terms and conditions
established, the court shall discharge the defendant and dismiss the charge
against the defendant.
(d) Discharge of the defendant and dismissal
of the charge against the defendant under this section shall be without
adjudication of guilt, shall eliminate any civil admission of guilt, and is not
a conviction.
(e) Upon discharge of the defendant and
dismissal of the charge against the defendant under this section, the defendant
may apply for expungement not less than one year following discharge, pursuant
to section 831-3.2. [L 1976, c 154, pt of §2; am L 1979, c 147, §1 and c 155,
§1; am L 1980, c 232, §42; am L 1983, c 290, §2(1), (2); gen ch 1985; am L
1988, c 184, §1; am L 2000, c 115, §3; am L 2012, c 295, §2]
Note
The 2012 amendment shall not apply to any defendant granted a
deferred acceptance of guilty or no contest plea before July 9, 2012. L 2012,
c 295, §3.
Case Notes
Deferred acceptance of guilty plea constitutes a form of
punishment under the Assimilated Crimes Act. 866 F.2d 315 (1989).
Procedure (under earlier program) does not impose an
impermissible burden on exercise of right of trial by jury. 58 H. 304, 568
P.2d 1194 (1977).
Under procedures established before enactment of this
section, it was held that a motion for DAG plea was not seasonably made after a
plea of not guilty and a trial resulting in a finding of guilt. 58 H. 412, 570
P.2d 1323 (1977).
Denial of motion for deferred acceptance of guilty plea is
within discretion of trial court. 59 H. 562, 584 P.2d 126 (1978).
Deferred acceptance of guilty plea is not a conviction and
may not be used for impeachment purposes. 62 H. 259, 614 P.2d 386 (1980).
Did not limit trial court's power to accept nolo contendere
plea to cases where plea is entered before trial begins. 66 H. 364, 662 P.2d
212 (1983).
Deferred acceptance of guilty and no contest pleas are not
appealable. 69 H. 438, 746 P.2d 568 (1987).
The tolling provisions under §706-627 apply to deferral
periods pursuant to a deferred acceptance of guilty plea. 92 H. 322, 991 P.2d
832 (2000).
A conditional plea under HRPP rule 11(a)(2) is inconsistent
with the granting of a deferred acceptance of guilty plea pursuant to this
chapter; defendant's appeal from trial court's order granting motion for
deferred plea did not provide a jurisdictional basis for review of an adverse
pretrial suppression order purportedly preserved by the trial court's allowance
of defendant's conditional plea. 95 H. 309, 22 P.3d 588 (2001).
Where defendant entered no contest plea after trial
commenced, pursuant to subsection (a)(1), defendant was not eligible for plea
deferral; only available remedy to defendant was to permit defendant to
withdraw plea. 95 H. 398, 23 P.3d 733 (2001).
In connection with the conditions from §706-624 that are
incorporated by reference in this section, the "provision" in
§706-624(3) that requires a defendant who is granted probation to be given a
written copy of the conditions, must necessarily apply to a defendant granted a
deferred acceptance of guilty plea, who must adhere to such similar
conditions. 118 H. 15, 185 P.3d 200 (2008).
Where State did not file a written motion to revoke
defendant's deferred acceptance of guilty plea, the probationary period was not
tolled; thus, as the deferment period had expired two months earlier, trial
court lacked jurisdiction to revoke defendant's deferred acceptance of guilty
plea. 118 H. 15, 185 P.3d 200 (2008).
Where the State promised as a condition of the plea agreement
to "take no position" on petitioner's deferred acceptance of no
contest plea (DANCP) motion but prosecutor's comments directly addressed the
issues pertinent to the motion, the terms of the agreement were not fulfilled
and petitioner was denied petitioner's due process rights; because this
contravention of petitioner's DANCP plea agreement violated petitioner's
fundamental rights and resulted in manifest injustice, this was plain error
under HRPP rule 52, the error was not harmless beyond a reasonable doubt and
sentencing by another judge was the proper remedy. 122 H. 92, 223 P.3d 157
(2010).
Granting or denial of motion for deferred acceptance of
guilty plea is within discretion of trial court and will not be disturbed
unless there has been manifest abuse. 1 H. App. 157, 616 P.2d 226 (1980).
This chapter does not prohibit trial court's inherent power
to grant or deny deferred acceptance of nolo contendere pleas. 1 H. App. 602,
623 P.2d 892 (1981).
Subsection (a)(1)'s requirement that defendant plead guilty
"prior to commencement of trial" means that it be done prior to
commencement of first trial; defendant's plea of guilty after first trial and
before new trial did not satisfy that requirement. 10 H. App. 31, 859 P.2d
1380 (1993).
In light of §706-624(n), family court was authorized to
require defendant to undergo polygraph testing as a reasonable condition of the
granting of defendant's deferred acceptance of nolo contendere plea under this
section. 92 H. 289 (App.), 990 P.2d 1171 (1999).
Mentioned: 74 H. 75, 837 P.2d 776 (1992); 10 H. App. 148,
861 P.2d 759 (1993).
Notes of Decisions
Cited in
55
cases (
13 in the last 5 years), 1978–2025 · leading case:
State v. Shannon, 185 P.3d 200 (Haw. 2008).
State v. Shannon, 185 P.3d 200 (Haw. 2008).
· cites it 153× “[4] We hold that (1) under HRS § 853-1 (1993 & Supp.2007), [5] referring to a DAGP, and incorporating HRS § 706-624 (1993 & Supp.”
State v. Miller., 223 P.3d 157 (Haw. 2010).
· cites it 16× “) After the prosecutor’s statement, Petitioner thanked the prosecutor for changing the charge to Assault in the Third Degree and argued that, because at 51 years of age Petitioner “doesn’t have a criminal record,” he should be granted a DANCP under HRS § 853-1 (Supp.2008). 5…”
State v. Satoafaiga., 504 P.3d 324 (Haw. 2022).
· cites it 24× “Satoafaiga urged the court to find that the three prongs of the HRS § 853-1 (2014) analysis, governing DANC and deferred acceptance of guilty (DAG) plea motions, were met: (1) she voluntarily pleaded guilty or no contest before trial, (2) she was not likely to engage again in a…”
State v. Kealaiki, 22 P.3d 588 (Haw. 2001).
· cites it 10× “HRS § 853-1 sets three preconditions to the court’s consideration of granting a DAG or DANC plea, one of which is that the defendant “voluntarily plead guilty or nolo contendere.”
State v. Chang, 445 P.3d 116 (Haw. 2019).
· cites it 8× “HRS § 853-1(a), (b). Upon the defendant complying with the "conditions," "the court shall discharge the defendant and dismiss the charge.”
State v. Sakamoto, 70 P.3d 635 (Haw. 2003).
· cites it 8× “[7] In Keahi , this court specifically noted that it did "not pass upon the issue of whether § 853-1, as amended in 1979, impermissibly infringes upon the judiciary's inherent power to accept deferred acceptance of guilty pleas.”
State v. Kaufman, 991 P.2d 832 (Haw. 2000).
· cites it 14× “HRS § 853-1 (1976 & Supp.1984) (emphasis added).”
State v. Medeiros., 454 P.3d 1069 (Haw. 2019).
· cites it 11× “Hamili, this court determined that Prohibited Fishing with Gill 1 Compare HRS § 853-1 (1977) with § HRS 853-1 (2014).”
State v. Klie, 174 P.3d 358 (Haw. 2007).
· cites it 5× “In his application, Klie essentially reasserts the sole argument made in his direct appeal, namely, that the district court erred in denying his motion for a deferred acceptance of no contest (DANC) plea, filed pursuant to HRS § 853-1 (1993), quoted infra. Specifically, Klie…”
State v. Naone, 990 P.2d 1171 (Haw. App. 1999).
· cites it 8× “HRS § 853-1 (1993) specifically provides, in relevant part, as follows: Deferred acceptance of .”
State v. Shannon, 169 P.3d 990 (Haw. App. 2007).
· cites it 11× “2d at 839 ("[B]y its express terms, the provisions of HRS § 706-624 are exported and incorporated by reference into HRS § 853-1."). The State submits that Shannon's receipt of actual, oral notice at the February 11, 2005 hearing was sufficient.”
State v. Frazer, 375 P.3d 267 (Haw. App. 2016).
· cites it 22× “We read the Hawai'i Supreme Court’s decision in Ritte as carving out an exception to the normal case for defendants whose adjudication of guilt is deferred pursuant to HRS § 853-1 or HRS § 712-1255. In 1979, Ritte was granted a deferred acceptance of guilty (DAG) plea pursuant…”
— Haw. Rev. Stat. § 853-1(2) — 1 case
State v. Sakamoto, 70 P.3d 635 (Haw. 2003).
“[7] In Keahi , this court specifically noted that it did "not pass upon the issue of whether § 853-1, as amended in 1979, impermissibly infringes upon the judiciary's inherent power to accept deferred acceptance of guilty pleas.”
— Haw. Rev. Stat. § 853-1(a) — 12 cases
State v. Satoafaiga., 504 P.3d 324 (Haw. 2022).
“Satoafaiga urged the court to find that the three prongs of the HRS § 853-1 (2014) analysis, governing DANC and deferred acceptance of guilty (DAG) plea motions, were met: (1) she voluntarily pleaded guilty or no contest before trial, (2) she was not likely to engage again in a…”
State v. Sakamoto, 70 P.3d 635 (Haw. 2003).
“[7] In Keahi , this court specifically noted that it did "not pass upon the issue of whether § 853-1, as amended in 1979, impermissibly infringes upon the judiciary's inherent power to accept deferred acceptance of guilty pleas.”
State v. Medeiros., 454 P.3d 1069 (Haw. 2019).
“Hamili, this court determined that Prohibited Fishing with Gill 1 Compare HRS § 853-1 (1977) with § HRS 853-1 (2014).”
State v. Chang, 445 P.3d 116 (Haw. 2019).
“HRS § 853-1(a), (b). Upon the defendant complying with the "conditions," "the court shall discharge the defendant and dismiss the charge.”
State v. Kealaiki, 22 P.3d 588 (Haw. 2001).
“HRS § 853-1 sets three preconditions to the court’s consideration of granting a DAG or DANC plea, one of which is that the defendant “voluntarily plead guilty or nolo contendere.”
— Haw. Rev. Stat. § 853-1(a)(1) — 1 case
State v. Chang, 445 P.3d 116 (Haw. 2019).
“HRS § 853-1(a), (b). Upon the defendant complying with the "conditions," "the court shall discharge the defendant and dismiss the charge.”
— Haw. Rev. Stat. § 853-1(a)(2) — 1 case
State v. Miller., 223 P.3d 157 (Haw. 2010).
“) After the prosecutor’s statement, Petitioner thanked the prosecutor for changing the charge to Assault in the Third Degree and argued that, because at 51 years of age Petitioner “doesn’t have a criminal record,” he should be granted a DANCP under HRS § 853-1 (Supp.2008). 5…”
— Haw. Rev. Stat. § 853-1(a)(3) — 1 case
State v. Miller., 223 P.3d 157 (Haw. 2010).
“) After the prosecutor’s statement, Petitioner thanked the prosecutor for changing the charge to Assault in the Third Degree and argued that, because at 51 years of age Petitioner “doesn’t have a criminal record,” he should be granted a DANCP under HRS § 853-1 (Supp.2008). 5…”
— Haw. Rev. Stat. § 853-1(b) — 5 cases
State v. Shannon, 185 P.3d 200 (Haw. 2008).
“[4] We hold that (1) under HRS § 853-1 (1993 & Supp.2007), [5] referring to a DAGP, and incorporating HRS § 706-624 (1993 & Supp.”
State v. Shannon, 169 P.3d 990 (Haw. App. 2007).
“2d at 839 ("[B]y its express terms, the provisions of HRS § 706-624 are exported and incorporated by reference into HRS § 853-1."). The State submits that Shannon's receipt of actual, oral notice at the February 11, 2005 hearing was sufficient.”
— Haw. Rev. Stat. § 853-1(c) — 6 cases
State v. Shannon, 185 P.3d 200 (Haw. 2008).
“[4] We hold that (1) under HRS § 853-1 (1993 & Supp.2007), [5] referring to a DAGP, and incorporating HRS § 706-624 (1993 & Supp.”
State v. Chang, 445 P.3d 116 (Haw. 2019).
“HRS § 853-1(a), (b). Upon the defendant complying with the "conditions," "the court shall discharge the defendant and dismiss the charge.”
State v. Kealaiki, 22 P.3d 588 (Haw. 2001).
“HRS § 853-1 sets three preconditions to the court’s consideration of granting a DAG or DANC plea, one of which is that the defendant “voluntarily plead guilty or nolo contendere.”
State v. Kaufman, 991 P.2d 832 (Haw. 2000).
“HRS § 853-1 (1976 & Supp.1984) (emphasis added).”
— Haw. Rev. Stat. § 853-1(d) — 2 cases
State v. Chang, 445 P.3d 116 (Haw. 2019).
“HRS § 853-1(a), (b). Upon the defendant complying with the "conditions," "the court shall discharge the defendant and dismiss the charge.”
— Haw. Rev. Stat. § 853-1(e) — 1 case
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