§853-4 Chapter not applicable; when. (a)
This chapter shall not apply when:
(1) The offense charged involves the intentional,
knowing, reckless, or negligent killing of another person;
(2) [Repeal and reenactment on June 30, 2026. L
2020, c 19, §15.] The offense charged is:
(A) A felony that involves the intentional,
knowing, or reckless bodily injury, substantial bodily injury, or serious
bodily injury of another person; or
(B) A misdemeanor or petty misdemeanor that
carries a mandatory minimum sentence and that involves the intentional,
knowing, or reckless bodily injury, substantial bodily injury, or serious
bodily injury of another person;
provided that the prohibition in this paragraph
shall not apply to offenses described in section 709-906(18);
(3) The offense charged involves a conspiracy or
solicitation to intentionally, knowingly, or recklessly kill another person or
to cause serious bodily injury to another person;
(4) The offense charged is a class A felony;
(5) The offense charged is nonprobationable;
(6) The defendant has been convicted of any offense
defined as a felony by the Hawaii Penal Code or has been convicted for any
conduct that if perpetrated in this State would be punishable as a felony;
(7) The defendant is found to be a law violator or
delinquent child for the commission of any offense defined as a felony by the
Hawaii Penal Code or for any conduct that if perpetrated in this State would
constitute a felony;
(8) The defendant has a prior conviction for a felony
committed in any state, federal, or foreign jurisdiction;
(9) A firearm was used in the commission of the
offense charged;
(10) The defendant is charged with the distribution of
a dangerous, harmful, or detrimental drug to a minor;
(11) The defendant has been charged with a felony
offense and has been previously granted deferred acceptance of guilty plea or
no contest plea for a prior offense, regardless of whether the period of
deferral has already expired;
(12) The defendant has been charged with a misdemeanor
offense and has been previously granted deferred acceptance of guilty plea or
no contest plea for a prior felony, misdemeanor, or petty misdemeanor for which
the period of deferral has not yet expired;
(13) [Repeal and reenactment on June 30, 2026. L
2020, c 19, §15.] The offense charged is:
(A) Escape in the first degree;
(B) Escape in the second degree;
(C) Promoting prison contraband in the first
degree;
(D) Promoting prison contraband in the second
degree;
(E) Bail jumping in the first degree;
(F) Bail jumping in the second degree;
(G) Bribery;
(H) Bribery of or by a witness;
(I) Intimidating a witness;
(J) Bribery of or by a juror;
(K) Intimidating a juror;
(L) Jury tampering;
(M) Promoting prostitution;
(N) Abuse of family or household member
except as provided in paragraph (2) and section 709-906(18);
(O) Sexual assault in the second degree;
(P) Sexual assault in the third degree;
(Q) A violation of an order issued pursuant
to chapter 586;
(R) Promoting child abuse in the second
degree;
(S) Promoting child abuse in the third
degree;
(T) Electronic enticement of a child in the
first degree;
(U) Electronic enticement of a child in the
second degree;
(V) Commercial sexual exploitation pursuant
to section 712-1200.5;
(W) Street prostitution and commercial sexual
exploitation under section 712-1207(1)(b) or (2)(b);
(X) Commercial sexual exploitation near
schools or public parks under section 712-1209;
(Y) Commercial sexual exploitation of a minor
under section 712-1209.1;
(Z) Habitual commercial sexual exploitation
under section 712-1209.5;
(AA) Violation of privacy in the first degree
under section 711-1110.9;
(BB) Violation of privacy in the second degree
under section 711-1111(1)(d), (e), (f), (g), or (h);
(CC) Habitually operating a vehicle under the
influence of an intoxicant under section 291E-61.5(a);
(DD) Promoting gambling in the first degree;
or
(EE) Promoting gambling in the second degree;
(14) The defendant has been charged with:
(A) Knowingly or intentionally falsifying any
report required under part XIII of chapter 11, with the intent to circumvent
the law or deceive the campaign spending commission; or
(B) Violating section 11-352 or 11-353; or
(15) The defendant holds a commercial driver's license
and has been charged with violating a traffic control law, other than a parking
law, in connection with the operation of any type of motor vehicle.
(b) The court may adopt by rule other criteria
for purposes of this section. [L 1976, c 154, pt of §2; am L 1980, c 292, §2;
am L 1993, c 130, §4 and c 234, §1; am L 1996, c 201, §3; am L 1997, c 55, §1;
am L 1998, c 172, §9; am L 2000, c 4, §7; am L 2004, c 85, §1; am L 2005, c
203, §25; am L 2006, c 80, §4; am L 2007, c 288, §3; am L 2008, c 171, §11; am
L 2009, c 88, §13; am L 2010, c 166, §22 and c 211, §§7, 8, 13; am L 2011, c
145, §5; am L 2013, c 53, §1; am L 2014, c 114, §5; am L 2016, c 206, §20 and c
231, §68; am L 2020, c 19, §4; am L 2021, c 33, §1, c 60, §2, and c 68, §15; am
L 2022, c 111, §7]
Note
The L 2022, c 111 amendment is exempt from the repeal and
reenactment condition of L 2020, c 19, §15. L 2022, c 111, §10.
Case Notes
Paragraph (7) is limited to cases involving minors who were
waived for adult prosecution under §571-22. 61 H. 385, 605 P.2d 496 (1980).
Subsections are not to be read conjunctively. 69 H. 602, 752
P.2d 597 (1988).
As sentencing court limited to alternatives expressly
enumerated in §188-70 and probation not an enumerated alternative, offense of
fishing with gill nets under §188-30.2 nonprobationable; thus, under paragraph
(5), deferred acceptance of no contest plea not allowed for that offense. 87
H. 102, 952 P.2d 390 (1998).
The plain and unambiguous language of paragraph (2) does not
prohibit the grant of a deferred acceptance of no contest plea for assault in
the second degree under §707-711 causing "substantial bodily injury",
as statutory prohibition expressly applies only to felony and misdemeanor
assaults inflicting "bodily injury" or "serious bodily injury".
101 H. 409, 70 P.3d 635 (2003).
By the express terms of §712-1207(4) and (5), the offense of
street solicitation under §712-1207(1) is probationable, and thus not
excludable under paragraph (5); appeals court therefore erred in affirming
trial court's refusal to consider defendant's motion for a deferred acceptance
of no contest plea. 116 H. 519, 174 P.3d 358 (2007).
When family court implicitly entered a deferred acceptance of
guilty plea pursuant to §853-1 and conditioned deferral upon defendant's
submitting to counseling according to schedule and not committing any
subsequent offenses, family court violated paragraph (2), where defendant was
charged with abuse of family and household member (§709-906). 10 H. App. 148,
861 P.2d 759 (1993).
Where the indictment alleges that a "dangerous
instrument" was used in the commission of the offense charged so as to
allow proof that a "firearm" was used, the possibility exists that
the defendant is not eligible for a deferred acceptance of no contest (DANC)
plea; in such cases, if prior to the court's decision on the defendant's motion
for a DANC plea the court is informed that the "dangerous instrument"
was a "firearm", the defendant is not eligible for, and the court is
not authorized to enter, a DANC plea. 101 H. 65 (App.), 62 P.3d 628 (2002).
Mentioned: 74 H. 75, 837 P.2d 776 (1992).
Notes of Decisions
Cited in
23
cases (
1 in the last 5 years), 1980–2021 · leading case:
State v. Sakamoto, 70 P.3d 635 (Haw. 2003).
State v. Sakamoto, 70 P.3d 635 (Haw. 2003).
· cites it 141× “On June 6, 2002, the prosecution filed a motion for reconsideration of the respondent judge's May 14, 2002 order, arguing that HRS § 853-4 (Supp.2002) did not allow the court to grant a DANC plea in connection with the offense of assault in the second degree.”
State v. Shannon, 185 P.3d 200 (Haw. 2008).
· cites it 54× “HRS § 853-4 (1993 & Supp.2007), entitled "Chapter not applicable; when[,]" lists circumstances related to the nature of the offense, the attributes or history of the defendant, and the nature of the victim, none of which are applicable to the instant case.”
State v. Sasai., 429 P.3d 1214 (Haw. 2018).
· cites it 18× “Although Petitioners conceded that the legislature intended to render persons charged under HRS § 712-1200(1)(b) ineligible for deferral, they contended the legislature's intent with respect to either HRS § 712-1200(1)(b) or HRS § 853-4 was irrelevant to application of the…”
State v. Klie, 174 P.3d 358 (Haw. 2007).
· cites it 8× “However, s]uch deferrals are constrained by HRS § 853-4, which sets out the circumstances under which chapter 853 “shall not apply.”
State v. Miller., 223 P.3d 157 (Haw. 2010).
· cites it 6× “To aggravate this breach, Abuse of a Family or Household Member is an offense that is excluded from DANCP eligibility under HRS § 853-4 (Supp.2008), whereas Assault in the Third Degree is not.”
State v. Oshiro, 746 P.2d 568 (Haw. 1987).
· cites it 12× “Aton, on the other hand, advances that, if the 1980 amendment was meant to exclude HRS § 707-704, the legislature would have specifically listed the negligence and simple negligence killing, which did not happen.”
State v. Mun Chung Tom, 752 P.2d 597 (Haw. 1988).
· cites it 10× “HRS § 853-4 provides twenty-four exceptions to application of the statute, all separated by semicolons.”
State v. Medeiros., 454 P.3d 1069 (Haw. 2019).
· cites it 14× “HRS § 853-4 (2014 & Supp. 2018) sets forth the circumstances under which a defendant is ineligible to benefit from HRS Chapter 853.”
State v. Riveira, 993 P.2d 580 (Haw. App. 2000).
· cites it 9× “For example, pursuant to HRS §§ 853-4(6) and 853-4(8), a defendant with a prior felony conviction is statutorily disqualified from deferred acceptance of his guilty (DAG) plea.”
State v. Gomes, 177 P.3d 928 (Haw. 2008).
· cites it 4× “2d 496, 498-99 (1980) (limiting construction of the plain language of HRS § 853-4(7) because, among other reasons, strictly adhering to its plain language would be inconsistent with our legislature's intent in enacting the statute).”
State v. Adams, 879 P.2d 513 (Haw. 1994).
· cites it 4× “1992) 7 ; furthermore, he is no longer eligible for a DANC under HRS § 853-4(6) (1985). 8 Therefore, specific performance of the plea agreement is not a meaningful alternative.”
State v. Sylva, 605 P.2d 496 (Haw. 1980).
· cites it 4× “HRS § 853-4 lists eight classes of offenders to whom the legislature intended to deny the benefit of Chapter 853.”
— Haw. Rev. Stat. § 853-4(1) — 2 cases
State v. Sakamoto, 70 P.3d 635 (Haw. 2003).
“On June 6, 2002, the prosecution filed a motion for reconsideration of the respondent judge's May 14, 2002 order, arguing that HRS § 853-4 (Supp.2002) did not allow the court to grant a DANC plea in connection with the offense of assault in the second degree.”
State v. Oshiro, 746 P.2d 568 (Haw. 1987).
“Aton, on the other hand, advances that, if the 1980 amendment was meant to exclude HRS § 707-704, the legislature would have specifically listed the negligence and simple negligence killing, which did not happen.”
— Haw. Rev. Stat. § 853-4(12) — 1 case
— Haw. Rev. Stat. § 853-4(13)(V) — 1 case
State v. Sasai., 429 P.3d 1214 (Haw. 2018).
“Although Petitioners conceded that the legislature intended to render persons charged under HRS § 712-1200(1)(b) ineligible for deferral, they contended the legislature's intent with respect to either HRS § 712-1200(1)(b) or HRS § 853-4 was irrelevant to application of the…”
— Haw. Rev. Stat. § 853-4(2) — 2 cases
State v. Sakamoto, 70 P.3d 635 (Haw. 2003).
“On June 6, 2002, the prosecution filed a motion for reconsideration of the respondent judge's May 14, 2002 order, arguing that HRS § 853-4 (Supp.2002) did not allow the court to grant a DANC plea in connection with the offense of assault in the second degree.”
— Haw. Rev. Stat. § 853-4(4) — 1 case
State v. Mun Chung Tom, 752 P.2d 597 (Haw. 1988).
“HRS § 853-4 provides twenty-four exceptions to application of the statute, all separated by semicolons.”
— Haw. Rev. Stat. § 853-4(5) — 5 cases
State v. Klie, 174 P.3d 358 (Haw. 2007).
“However, s]uch deferrals are constrained by HRS § 853-4, which sets out the circumstances under which chapter 853 “shall not apply.”
State v. Mun Chung Tom, 752 P.2d 597 (Haw. 1988).
“HRS § 853-4 provides twenty-four exceptions to application of the statute, all separated by semicolons.”
State v. Medeiros., 454 P.3d 1069 (Haw. 2019).
“HRS § 853-4 (2014 & Supp. 2018) sets forth the circumstances under which a defendant is ineligible to benefit from HRS Chapter 853.”
— Haw. Rev. Stat. § 853-4(6) — 3 cases
State v. Adams, 879 P.2d 513 (Haw. 1994).
“1992) 7 ; furthermore, he is no longer eligible for a DANC under HRS § 853-4(6) (1985). 8 Therefore, specific performance of the plea agreement is not a meaningful alternative.”
State v. Shannon, 185 P.3d 200 (Haw. 2008).
“HRS § 853-4 (1993 & Supp.2007), entitled "Chapter not applicable; when[,]" lists circumstances related to the nature of the offense, the attributes or history of the defendant, and the nature of the victim, none of which are applicable to the instant case.”
State v. Riveira, 993 P.2d 580 (Haw. App. 2000).
“For example, pursuant to HRS §§ 853-4(6) and 853-4(8), a defendant with a prior felony conviction is statutorily disqualified from deferred acceptance of his guilty (DAG) plea.”
— Haw. Rev. Stat. § 853-4(7) — 5 cases
State v. Shannon, 185 P.3d 200 (Haw. 2008).
“HRS § 853-4 (1993 & Supp.2007), entitled "Chapter not applicable; when[,]" lists circumstances related to the nature of the offense, the attributes or history of the defendant, and the nature of the victim, none of which are applicable to the instant case.”
State v. Gomes, 177 P.3d 928 (Haw. 2008).
“2d 496, 498-99 (1980) (limiting construction of the plain language of HRS § 853-4(7) because, among other reasons, strictly adhering to its plain language would be inconsistent with our legislature's intent in enacting the statute).”
State v. Riveira, 993 P.2d 580 (Haw. App. 2000).
“For example, pursuant to HRS §§ 853-4(6) and 853-4(8), a defendant with a prior felony conviction is statutorily disqualified from deferred acceptance of his guilty (DAG) plea.”
State v. Sylva, 605 P.2d 496 (Haw. 1980).
“HRS § 853-4 lists eight classes of offenders to whom the legislature intended to deny the benefit of Chapter 853.”
— Haw. Rev. Stat. § 853-4(9) — 3 cases
— Haw. Rev. Stat. § 853-4(a) — 2 cases
State v. Medeiros., 454 P.3d 1069 (Haw. 2019).
“HRS § 853-4 (2014 & Supp. 2018) sets forth the circumstances under which a defendant is ineligible to benefit from HRS Chapter 853.”
— Haw. Rev. Stat. § 853-4(a)(13)(V) — 1 case
State v. Sasai., 429 P.3d 1214 (Haw. 2018).
“Although Petitioners conceded that the legislature intended to render persons charged under HRS § 712-1200(1)(b) ineligible for deferral, they contended the legislature's intent with respect to either HRS § 712-1200(1)(b) or HRS § 853-4 was irrelevant to application of the…”
— Haw. Rev. Stat. § 853-4(a)(5) — 1 case
State v. Medeiros., 454 P.3d 1069 (Haw. 2019).
“HRS § 853-4 (2014 & Supp. 2018) sets forth the circumstances under which a defendant is ineligible to benefit from HRS Chapter 853.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.