IN THE INTERMEDIATE COURT OF APPEALS
STATE OF HAWAI`I, Plaintiff-Appellee, v.
CAROLYN BRIGHTER, Defendant-Appellant
APPEAL FROM THE DISTRICT COURT OF THE THIRD CIRCUIT,
SOUTH KOHALA DIVISION
(Citation No. 1715355MH)
JANUARY 5, 2005
WATANABE, ACTING C.J., AND LIM, J.;
WITH FOLEY, J., CONCURRING SEPARATELY
OPINION OF THE COURT BY WATANABE, J.
Defendant-Appellant Carolyn Brighter (Brighter, Miss Brighter, or Ms. Brighter) appeals from the "Order Granting [Plaintiff-Appellee State of Hawaii's (the State)] Motion to Impose Suspended Fine" entered on July 15, 2002 by the District Court of the Third Circuit (the district court). (1) We conclude that the district court lacked authority to impose the suspended fine. Accordingly, we reverse.
On May 12, 2001, Brighter was issued Complaint & Summons No. 1715355MH (Citation 1), charging her with operating or using a vehicle without no-fault insurance, (2) in violation of Hawaii Revised Statutes (HRS) § 431:10C-104 (Supp. 2003). (3) Brighter was the owner of the vehicle she was operating when Citation 1 was issued.
Brighter appeared in district court (4) on August 1, 2001 and entered a no-contest plea to the Citation 1 charge, pursuant to a plea agreement. At the request of Brighter's counsel, however, sentencing was continued until September 12, 2001 to allow Brighter to obtain insurance.
On September 12, 2001, Brighter appeared in district court (5) for sentencing. The relevant sentencing statute, HRS § 431:10C-117(a) (Supp. 2003), provided then as it does now, in pertinent part, as follows:
(2) Notwithstanding any provision of the Hawaii Penal Code:
(B) If the person is convicted of not having had a
motor vehicle insurance policy in effect at the time the citation was
issued, the fine shall be $500 for the first offense and a minimum of $1,500 for each subsequent offense that
occurs within a five-year period from any prior offense; provided that the judge:
(ii) May grant community service in lieu of the fine for subsequent offenses at the judge's discretion;
(A) Suspend the driver's license of the driver or of the registered owner for:
(ii) One year for any subsequent offense within a five-year period from a previous offense;
(B) Require the driver or the registered owner to keep a nonrefundable motor vehicle insurance policy in force for six
(5) In the case of multiple convictions for driving without a valid motor vehicle insurance policy within a five-year
period from any prior offense, the court, in addition to any other penalty, shall impose the following penalties:
(B) Suspension or revocation of the motor vehicle
registration plates of the vehicle involved;
(C) Impoundment, or impoundment and sale, of the
motor vehicle for the costs of storage and other charges incident
to seizure of the vehicle, or any other cost involved pursuant to section 431:10C-301; or
HRS § 431:10C-117(a) (emphases added).
At the outset of the hearing, Brighter's counsel reminded the district court why sentencing had been continued:
Judge, we were continuing this to see if we could get proof of current insurance for Miss Brighter. She does have some documentation referring to the policy of her parents. I wasn't sure if this would actually help us or not so I contacted the insurance company. Apparently Miss Brighter's situation, from the insurance agent that I spoke with, is that she is covered under her parents' policy as a member of the household. However, she's not a named insured on the policy. So the insurance company said she is covered driving any vehicles covered under her parents' policy. Where if she drives another vehicle she is not covered. And she's not, I guess, a named insured on the policy.
The following discussion then ensued:
[DEPUTY PROSECUTOR]: That's being a little tenuous for my satisfaction, Judge. But it's up to the [c]ourt whether that is proof. Cause we're here for sentencing, not for dismissal.
[DEPUTY PROSECUTOR]: But appears that this vehicle apparently is not her parents' vehicle so we don't have proof of insurance of that. Um, she is not a named insured on the policy and --
[DEPUTY PUBLIC DEFENDER]: State Farm Insurance.
[DEPUTY PUBLIC DEFENDER]: Here's what they provided --
[DEPUTY PUBLIC DEFENDER]: Here's what their policy says:
"Our records indicate that persons listed below are the only licensed drivers reported to us. Edward Brighter, Billy Brighter, Kimo Brighter, Carolyn Patterson," who is Carolyn Brighter, "and Anela Brighter."
[DEPUTY PUBLIC DEFENDER]: They acknowledged that, that she's a member of the household listed on the policy, but she's not -- I don't know how the policy --
[DEPUTY PUBLIC DEFENDER]: Okay.
. . . .
THE COURT: Is there registration for the vehicle now . . . ?
The district court then proceeded to sentence Brighter:
THE COURT: . . . .
. . . .
Miss Brighter, . . . you have a case in Hamakua? Is that easier for you in Hamakua?
THE COURT: You're supposed to come back next week. You've been making payments, though, on your other matter?
THE COURT: Instead of coming back next week, I'll let you sign a notice so we'll continue all of this for three months. Because you've been making your payments regularly.
THE COURT: Miss Brighter, you want -- it's easier for your Hamakua case to be here?
THE COURT: Alright [sic]. We'll continue this all for three months.(Footnote added.) According to the transcript of the proceedings, the district court did not advise Brighter of any conditions attached to her suspended sentence. The record on appeal similarly contains no indication that Brighter was advised in writing of any conditions attached to her suspended sentence. It does not appear that Brighter was informed, for example, that she was required to remain conviction-free for the six-month period of suspension.
At the December 12, 2001 continued hearing, the district court scheduled a "for payment" hearing for March 13, 2002, at 9 a.m.
On December 28, 2001, within the six-month suspension period (7) for Citation 1, Brighter received Complaint & Summons No. 1234129MH (Citation 2), charging her with not having motor vehicle insurance. Brighter's initial appearance in district court for the Citation 2 charge occurred on February 7, 2002. The court calendar for that day notes that Brighter did not yet have insurance and would obtain insurance when her car was fixed. The matter was continued until March 7, 2002 for arraignment and plea and to allow Brighter to obtain proof of current insurance.
At the March 7, 2002 hearing, Brighter presented a State Farm insurance card, effective for the period from February 25, 2002 to February 25, 2003. The district court referred Brighter to the Public Defender's office and continued the case until April 18, 2002 for arraignment and plea.
On March 13, 2002, Brighter failed to appear at the "for payment" hearing that had been set on December 12, 2001. Consequently, the district court ordered a bench warrant issued for her arrest, with bail set at $50. The bench warrant was served on Brighter on April 8, 2002.
On April 18, 2002, Brighter appeared in district court (8) and entered, pursuant to a plea agreement, a no-contest plea to the Citation 2 charge. Brighter's counsel then asked that sentencing be continued, since Brighter had forgotten "her proof of current insurance." The following colloquy then ensued:
THE COURT: Did [Brighter] get picked up on the bench warrant yet?
She showed it previously. Well, the calendar shows she showed it last time. And if the State and the [c]ourt will accept it, perhaps we can go ahead and do the sentencing.
[DEPUTY PUBLIC DEFENDER]: My position with regard to that, Judge, would be first that, uh, that issue needs to be triggered by way of a motion and notice, and, uh, the State is free to do so if it chooses.
THE COURT: Okay, Ms. Brighter, as long as you understand, uh, that the no-fault insurance charge carries a possible 30 days in jail, 15 hundred dollars fine minimum, plus the 14 hundred that was suspended.
[DEPUTY PUBLIC DEFENDER]: You're gonna sentence her today or you're gonna continue that to the --
THE COURT: -- well, I assume she would prefer to continue.
THE COURT: Uh, [Deputy Prosecutor], is the State going to file a motion then?
THE COURT: All right.
THE COURT: Yes.On May 8, 2002, Brighter appeared for sentencing on the Citation 2 charge and payment of a fine installment due for Citation 1. At the outset of the hearing, the deputy prosecutor brought to the district court's (9) attention that Brighter had a new contempt of court charge for failure to appear at the March 13, 2002 "for payment" hearing. The district court reminded Brighter that she still owed $132, admonished her to make her monthly payments of $25, and warned her that a jail sentence and another contempt of court charge might result if Brighter did not pay her fines. (10) The State indicated that it intended to file a motion to impose the suspended sentence for Citation 1, but that the motion "just wasn't ready to be filed." The matter was continued until June 19, 2002.
On May 22, 2002, more than two months after the six-month suspended fine period for Citation 1 had expired, the State filed its Motion to Impose Suspended Fine regarding Citation 1. The Declaration of Counsel attached to the State's motion states, in relevant part:
I have reviewed the files herein and find that
[Brighter] was sentenced on Sept. 12, 2001, and as part of that
sentence for no no fault
insurance under citation , $1,400 of her fine was suspended.
I am aware that on April 18, 2002, [Brighter] pled
no contest to a no insurance charge under citation , wherein the
date of offense
was December 28, 2001.
Brighter's counsel opposed the Motion to Impose Suspended Fine, stating, in relevant part:
It appears that the sentence was suspended for six months[ ] beginning September 12, 2001. The period of suspension expired on March 12, 2002 or there about [sic].
The district court (11) heard the State's motion on June 19, 2002. At the outset of the hearing, the district court noted:
No one has cited, ah, any case law to me. But I don't think this occasion would -- this question of the time available in tolling has come up.
In other words if, as we commonly do, we say, okay, no insurance, fined $500, $400 suspended six months, no further violations; five-and-a-half months later the person gets cited, they come to court, they ask for trial. Trial is not till months after, and the period -- the six months has run. The citation is within the six months. My best sense of it is that the -- if the citation falls within the six months then it's covered.
I certainly see -- I don't think there's any law on the point here. To me the closest reality would be if it's a probation-ish situation. It isn't probation, it's probation-ish. And in probation there's specifically a statute that states that if you file a motion it tolls the running of probation.
The district court, however, declined to do so:
The rules for Miranda warnings are different in traffic in recognition of the realities of the situation, I think. I don't think there's any other way to rationalize the difference in case law between what you can do in a traffic situation and asking questions versus nontraffic. And I would -- again, just my sense of it is, that there's a distinction to be drawn between a criminal situation and traffic. And it may be arbitrary, but I think it's a recognition of reality.The district court then granted the State's motion to impose Brighter's suspended fine of $1,400 for Citation 1.
The district court's written order granting the State's Motion to Impose Suspended Fine was filed on July 15, 2002 and states, in pertinent part:
On September 12, 2001, [Brighter] received a
sentence for a No-No Fault Insurance Citation , that included a
portion of her fine
being suspended for six months.
[Brighter] plead to the new No Fault insurance
charge on April 18, 2002, at which time the [c]ourt advised [Brighter]
and counsel of
the suspended fine, and defense counsel requested a written motion be filed. The case was continued to May 8, 2002,
for consolidation of the old and new insurance cases and sentencing.
5. A motion to Impose Suspended fine was filed May 22, 2002.
The law does not require the Motion to Impose a
Suspended Sentence, where probation is not involved, to be filed or
the period of the suspension.
The district court made no finding of fact or conclusion of law regarding whether Brighter received any notice of her obligation to remain free of any convictions during the suspension period.
A notice of appeal was timely filed on August 12, 2002.
ISSUES ON APPEAL
Brighter raises two arguments on appeal: (1) The district court lacked jurisdiction to revoke Brighter's suspended fine for Citation 1 because the State failed to file a timely revocation motion within the six-month suspension period, and (2) the district court violated Brighter's right to due process when it revoked Brighter's suspended fine for violation of a condition about which Brighter was never informed.
STANDARDS OF REVIEW
A trial court's conclusions of law are subject to de novo review under the right/wrong standard. State v. Ah Loo, 94 Hawai`i 207, 209, 10 P.3d 728, 730 (2000). Likewise, a lower court's interpretation of a statute is reviewable de novo, as a question of law. State v. Kotis, 91 Hawai`i 319, 327, 984 P.2d 78, 86 (1999).
The grant or denial of a suspended sentence for an automobile insurance violation rests within the discretion of the trial court. HRS § 431:10C-117(a)(2)(B) (Supp. 2003). To constitute an abuse of discretion, "it must appear that the court clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of the party litigant." State v. Crisostomo, 94 Hawai`i 282, 287, 12 P.3d 873, 878 (2000) (citations and internal quotation marks and brackets omitted).
A. The District Court Lacked Jurisdiction to Revoke Brighter's Suspended Sentence
Brighter's sentence for Citation 1 was apparently suspended by the district court pursuant to HRS § 431:10C-117(a)(2)(B)(i), which vests discretion in the court "to suspend all or any portion of the fine if the defendant provides proof of having a current motor vehicle insurance policy[.]" HRS § 431:10C-117(a)(2)(B)(i) (emphasis added). There are no conditions set forth in HRS § 431:10C-117(a)(2) or HRS chapter 431:10C (governing motor vehicle insurance) with which a defendant must comply during a period of sentence suspension. Additionally, HRS § 431:10C-117(a)(2) is silent as to whether a court that has exercised its discretion to suspend all or part of a fine is allowed to subsequently revoke the suspension of a fine.
In State v. Eline, 70 Haw. 597, 778 P.2d 716 (1989), the Hawai`i Supreme Court construed HRS § 706-605(3) [(Supp. 1987)], which is part of the Hawaii Penal Code and authorizes a court to "sentence a person convicted of a misdemeanor or petty misdemeanor to a suspended sentence[,]" as rendering
it obligatory on the court choosing the dispositional alternative of a suspended sentence to impose a sentence and suspend its execution on condition that the defendant does not commit another offense during the term of suspension. Otherwise, the sentence would neither provide punishment nor afford deterrence.Eline, 70 Haw. at 602-03, 778 P.2d at 720. The supreme court also stated:
But we do not read HRS § 706-605(3) as permitting the attachment of other conditions to a suspended sentence. If the subsection is construed to permit the imposition of other conditions, a suspended sentence would be well nigh indistinguishable from probation. Yet each is a distinct alternative in the Penal Code's sentencing scheme. To begin with, defendants convicted of felonies, misdemeanors, and petty misdemeanors can be placed on probation, but only those convicted of misdemeanors and petty misdemeanors can have their sentences suspended. And as we noted, probation may be combined with fine, imprisonment, restitution, or community service as a sentencing alternative, but there is no provision in HRS § 706-605(3) authorizing the combination of a suspended sentence with any other alternative. If the sentencing court believes a suspended sentence does not "provide just punishment for the offense" and "afford adequate deterrence to criminal conduct" without other conditions, it should place the convicted offender on probation.Eline, 70 Haw. at 603, 778 P.2d at 720 (citations omitted). The Eline court, "[h]aving decided that a suspended sentence may only be conditioned upon the offender's remaining free of further convictions," id., then went on to discuss the due process protections that must be afforded to a defendant when the State seeks to revoke that defendant's suspended sentence:
A proceeding whereby the State seeks to revoke a suspended sentence "is not part of a criminal prosecution and thus the full panoply of rights due a defendant there does not apply" to the revocation. A "simple factual hearing" should suffice whether the State moves to terminate the convicted offender's liberty before the term of suspension expires or whether the sentencing court schedules his [or her] case for "proof of compliance" near the end of the term.
Id. at 604, 778 P.2d at 720 (emphasis added; citations and internal brackets omitted).
Brighter contends that because HRS chapter 431:10C is silent as to the procedural requirements for revoking a suspended fine imposed pursuant to HRS § 431:10C-117(a)(2), any ambiguities in process should be resolved by applying the procedures for revoking probation that are set forth in HRS §§ 706-625 (Supp. 2003), 706-627 (1993), and 706-630 (Supp. 2003). Brighter further argues that because the State failed to file a motion to revoke her suspended fine within the six-month suspension period, as required by HRS § 706-625, her suspended sentence was not tolled and, accordingly, she was discharged from any obligations imposed by the suspended sentence once the six-month suspended sentence period had expired.
The State counters that "[i]t is fundamentally unfair to the State and contravenes the purpose of the legislation to require a motion to impose suspended sentence on a no-fault charge to be filed within the suspension period, where the triggering citation is within the six-month period and the conviction is delayed at least in part due to [Brighter's] request." The State also argues:
The [district court] had inherent authority to impose the suspended sentence on Brighter once the triggering offense appeared on the calendar as having occurred within the six-month period. The authority did not dissipate simply because no motion was filed within that period. In point of fact, no motion was required but one was ultimately filed, in part because defense counsel requested it. Likewise imposition of sentencing, including the suspended sentence, was delayed due to defense's requests, so that Brighter might present proof of current insurance.
a motion is required to impose the suspended sentence, and the motion
has to be filed within the six-month period, then the State would be
required to obtain a traffic abstract on every person who receives a
citation immediately upon the citation being issued. Then, in those
where the six-month suspension expires prior to the initial court date,
the State would be required to rush forward with a motion to impose
suspended sentence even before the return date on the ticket.
As a matter of common sense, that scenario simply cannot work: too many tickets, too little time.
Pursuant to HRS § 706-625(3):
The court shall revoke probation if the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.HRS § 706-625(3) (emphasis added). The foregoing statute, if applied in this case, clearly authorized the district court to revoke Brighter's suspended fine upon Brighter's conviction of the charge in Citation 2. However, unlike the revocation of probation which is governed by specific statutes, existing statutes are silent as to the process for revoking a suspended sentence. Therefore, no statutory guidance exists to determine (1) whether a proceeding to revoke a suspended sentence may be filed after the suspension period has expired, and (2) whether conviction of a non-felony crime must occur within the suspension period in order to trigger the court's authority to revoke the suspended sentence. Brighter urges us to apply the statutes governing the revocation of probation to suspended sentences and require that motions to revoke a suspended sentence be filed during the suspension period. However, inasmuch as these statutes were once applicable to suspended sentences but were amended by the legislature to make them inapplicable to suspended sentences, we are not inclined to do so.
In other jurisdictions without statutes governing the revocation of probation, the case law on the issue of whether revocation must occur within the probation period has been mixed. An annotation on the subject summarizes the case law as follows:
It is well established that trial courts have authority to revoke probation during the period of probation set by the order of the trial court for material violations of the conditions imposed by the probation order. However, where the revocation proceedings are not begun until after the expiration of the probation term, or are begun prior to expiration but continue beyond that point, questions arise as to the trial court's authority to issue a revocation order.
jurisdictions adhere to the general rule that the institution of
revocation proceedings during the term of probation operates to provide
court with authority to hold revocation proceedings and issue the
revocation order after the expiration of the term (§ 6, infra).
Within the general
rule, there is disagreement as to the minimum action necessary to
institute proceedings, with authority existing for the proposition that
proceedings may be commenced by the filing of a petition or motion to
revoke (§ 7, infra), by the issuance of a warrant for the
defendant's arrest (§
8, infra), by the issuance of a warrant plus execution of the warrant
within a reasonable time of its issuance (§ 9, infra), by the
filing of a petition or
motion to revoke followed by the issuance of a warrant (§ 10,
infra), and by the personal appearance of the defendant (§ 11,
other jurisdictions follow the general rule that revocation proceedings
must be completed prior to the expiration of the probation term (§
infra). Within the general rule there is disagreement as to whether the
imposition of sentence is part of the revocation proceeding, some
holding that sentence must be imposed prior to the expiration of the
probation term (§ 13, infra) and other courts holding that
issuance of a valid
revocation order prior to the expiration of the term gives the trial
court authority to impose sentence after the probation term has expired
In Eline, the Hawai`i Supreme Court stated that
[a] proceeding whereby the State seeks to revoke a suspended sentence "is not part of a criminal prosecution and thus the full panoply of rights due a defendant there does not apply" to the revocation. A "simple factual hearing" should suffice whether the State moves to terminate the convicted offender's liberty before the term of suspension expires or whether the sentencing court schedules his [or her] case for "proof of compliance" near the end of the term.
In this case, the State, despite knowledge that Brighter had been arrested for another no-motor-vehicle-insurance charge, did not move to revoke her suspended sentence within the suspended sentence period. Additionally, Brighter was not convicted of the Citation 2 charge until after the suspended sentence period for Citation 1 had already expired. We conclude, therefore, that when the district court revoked Brighter's suspended sentence, it lacked authority to do so.
B. Brighter's Due Process Rights Were Not Violated When the District Court Revoked Brighter's Suspended
Sentence for Violating a Condition About Which Brighter Was Never Informed
In this case, it is undisputed that the district court did not inform Brighter that her suspended fine would be revoked if she committed a new crime. Brighter contends that the district court's revocation, "based on the non-existent condition to remain conviction free, and without notice to Brighter constitutes a clear denial of due process." Although our conclusion that the district court lacked authority to impose Brighter's suspended sentence is dispositive of this appeal, we will nevertheless address Brighter's second point on appeal for the district court's guidance in future cases.
Courts in other jurisdictions that have considered this issue have generally concluded that due process does not require advance notice to a defendant of the requirement to remain conviction free while serving a suspended sentence.
In State v. Lewis, 752 A.2d 1144, 58 Conn. App. 153 (2000), for example, a defendant was arrested for robbery in the first degree three weeks after he was placed on probation and his sentence to five years in prison was suspended. The defendant's probation was thereafter revoked and the defendant was committed to the custody of the commissioner of correction to serve the suspended portion of his sentence, despite argument by the defendant that he had not been told that commission of a felony while on probation would constitute a violation of probation. On appeal, the defendant argued that his due process rights were violated by the insufficient notice. Rejecting the defendant's argument, the Appellate Court of Connecticut held:
process does not require that the defendant, in a revocation of
probation proceeding based on criminal activity, be aware of the
probation. "In such a case, knowledge of the criminal law is imputed to
the probationer, as is an understanding that violation of the law will
the revocation of probation. On the other hand, where the proscribed
acts are not criminal, due process mandates that the defendant cannot
subject to a forfeiture of his [or her] liberty for those acts unless
he [or she] is given prior fair warning." United States v. Dane,
570 F.2d 840, 844
(9th Cir. 1977), cert. denied, 436 U.S. 959, 98 S. Ct. 3075, 57 L. Ed.
2d 1124 (1978). An inherent condition of any probation is that the
not commit further violations of the criminal law while on probation.
"It is universally held that the commission of a felony violates a
inherent in every probation order." State v. Roberson, 165 Conn. 73, 77, 327 A.2d 556 (1973). The general conditions of probation are presumed
as an integral part of probation. State v. Wright, [24 Conn. App. 575, 577, 590 A.2d 486 (1991)].
Had the sentencing court merely placed the defendant on probation without saying anything further, the commission of a felony nevertheless would constitute a violation sufficient to authorize revocation of probation. State v. Hoffler, 55 Conn. App. 210, 216-17, 738 A.2d 1145, cert. denied, 251 Conn. 923, 742 A.2d 360 (1999). The defendant was not entitled to "fair warning" that committing new crimes is a violation of probation. Id., at 217, 738 A.2d 1145. We conclude, therefore, that the defendant's due process rights were not violated and that the court did not abuse its discretion in finding the defendant in violation of his probation.Id. at 1146-47 (footnote and internal brackets omitted).
In Brooks v. State, 484 P.2d 1333 (Okla. Crim. App. 1971), the defendant's four-year suspended sentence for larceny of an automobile was revoked after the defendant was found guilty of assault with a deadly weapon with intent to kill, after former conviction of a felony. The defendant appealed, arguing that the revocation of suspended sentence was improper because the judgment and sentence for the larceny offense "did not state any court-imposed conditions of the suspension[.]" Disagreeing, the Oklahoma Court of Criminal Appeals held:
We are of the opinion that a condition of a suspended sentence that a person may not commit a felony, is so basic and fundamental that any reasonable person would be aware of such condition. To allow a defendant to escape revocation under such circumstances would be mockery of our whole system of criminal justice.484 P.2d at 1334.
In State v. Budgett, 769 A.2d 351 (N.H. 2001), the Supreme Court of New Hampshire summarized the relevant case law, as follows:
In Stapleford v. Perrin, 122 N.H. 1083, 1087, 453 A.2d 1304 (1982), we set forth the principle that:
In accordance with due process, "the sentencing order must clearly communicate to the defendant the exact nature of the sentence." State v. Burgess, 141 N.H. 51, 52, 677 A.2d 142 (1996) (quotation omitted). We have recognized "that termination of freedom by revocation of a suspended sentence involves constitutional liberty interests" protected by the Due Process Clause. Brennan v. Cunningham, 126 N.H. 600, 604, 493 A.2d 1213 (1985). Our inquiry therefore focuses on whether an implied condition of good behavior is constitutionally permissible under due process, and if so, whether the defendant violated that condition.
the deprivation of the defendant's conditional liberty rests upon the
commission of a non-criminal act, however, he [or she] must be given
some form of warning in order to ensure that he [or she] understands,
"in plain and certain terms," the conditions of his [or her] sentence. Stapleford, 122 N.H.
at 1087, 453 A.2d 1304. "Due process mandates that he [or she] be given
actual notice" that such conduct could result in the
revocation of his [or her] conditional liberty. Mace v. Amestoy, 765 F. Supp. 847, 849 (D. Vt. 1991) (citation omitted); see also United States v.
20 F.3d 7, 12 (1st Cir. 1994). To hold otherwise would effectively
modify the terms of the original sentencing order and result in
fundamental unfairness. See State v. Rau, 129 N.H. 126, 129, 523 A.2d 98 (1987).
We conclude, therefore, as do a majority of other jurisdictions, that the term "good behavior" is defined as conduct conforming to the law. It does not include non-criminal behavior for which the defendant must be given actual notice. See Horsey v. State, 56 Md. App. 667, 468 A.2d 684, 687 (1983); State v. Columbo, 366 A.2d 852, 854 (Me. 1976); State v. Miller, 28 N.C. App. 504, 221 S.E.2d 520, 521 (1976) 21A Am. Jur. 2d Criminal Law § 897 (1998); Annotation, What Constitutes "Good Behavior" Within Statute or Judicial Order Expressly Conditioning Suspension of Sentence Thereon, 58 A.L.R.3d 1156, 1162 (1974).769 A.2d at 353-54 (internal brackets omitted).
In Robinson v. Leapley, 515 N.W.2d 216 (S.D. 1994), the defendant petitioned for habeas corpus relief after the suspended portion of his prison sentence for escape was revoked by the Board of Pardons and Paroles for failure to comply with a condition of the defendant's parole agreement, namely failure to keep his parole agent advised of his whereabouts. The South Dakota Supreme Court reversed the revocation on due process grounds:
It is an essential component of due process that individuals be given fair warning of those acts which may lead to a loss of liberty. This is no less true whether the loss of liberty arises from a criminal conviction or the revocation of probation.
While a probationer's failure to keep his [or her] parole agent advised of his [or her] whereabouts might well be a necessary and fundamental condition of any suspended sentence, State cites no authority that such a failure constitutes criminal activity. Thus, unless the probationer receives prior fair warning that failure to keep his [or her] parole agent advised of his [or her] whereabouts can lead to revocation of his [or her] suspended sentence, the Board of Pardons and Paroles' decision to revoke violates the requirements of due process.Id. at 218-19 (citations omitted).
In State v. Stubblefield, 953 S.W.2d 223 (Tenn. Cr. App. 1997), the Tennessee Court of Criminal Appeals was confronted with a similar issue: Whether a trial court had authority to revoke a defendant's probation based on offenses that the defendant committed before he or she was convicted but which the trial court did not learn of until after the conviction. In concluding that probation could be revoked, the court stated:
We recognize that a defendant who is granted probation has a liberty interest that is protected by due process of law. Also, it is fundamental to our system of justice through due process that persons who are to suffer penal sanctions must have reasonable notice of the conduct that is prohibited. In this vein, a trial court would usually be unable to revoke a defendant's suspended sentence based on violations of probation conditions before those conditions are set.
953 S.W.2d at 225 (citations omitted).
In Eline, the Hawai`i Supreme Court held that although the suspended sentencing provisions of the Hawaii Penal Code did not specifically authorize a sentencing court to attach conditions to the suspension of a sentence, it was nevertheless "obligatory on the court choosing the dispositional alternative of a suspended sentence to impose a sentence and suspend its execution on condition that the defendant does not commit another offense during the term of suspension. Otherwise, the sentence would neither provide punishment nor afford deterrence." Eline, 70 Haw. at 602-03. The supreme court thus implied that a defendant whose sentence is suspended must be on notice that any criminal activity on his or her part may lead to revocation of his or her suspended sentence.
In this case, Brighter, having been previously convicted of driving without motor vehicle insurance, was clearly on notice that driving without motor vehicle insurance was a criminal offense. We conclude that revocation of Brighter's suspended sentence for commission of the same offense during the period of suspension would not implicate Brighter's due process rights.
Because the district court lacked authority to impose Brighter's suspended sentence once the suspension period expired,
we reverse the district court's July 15, 2002 Order Granting State's Motion to Impose Suspended Fine.
Traci Rei Morita, deputy
public defender, State of
Hawai`i (Cindy A. L.
Goodness, deputy public
defender, State of Hawai`i,
on the briefs) for
Janet R. Garcia, deputy
County of Hawai`i, for
1. The "Order Granting [Plaintiff-Appellee State of Hawaii's] Motion to Impose Suspended Fine" was entered by Judge Jeffrey Choi (Judge Choi).
2. Although Defendant-Appellant Carolyn Brighter (Brighter) was charged with the offense of "no no-fault insurance," such an offense no longer exists. In 1997, the state legislature overhauled Hawaii Revised Statutes (HRS) chapter 431:10C, the motor vehicle insurance law, and replaced statutory references to "no-fault policy" with "motor vehicle insurance policy." 1997 Haw. Sess. L. Act 251 at 514. Therefore, the offense is more properly referred to as "no motor vehicle insurance policy."
3. HRS § 431:10C-104 (Supp. 2003) provides, both now and as it did when Brighter was cited, as follows:
(b) Every owner of a motor vehicle used or operated at any time upon any public street, road, or highway of this State shall
obtain a motor vehicle insurance policy upon such vehicle which provides the coverage required by this article and shall
maintain the motor vehicle insurance policy at all times for the entire motor vehicle registration period.
(c) Any person who violates the provisions of this section shall be subject to the provisions of section 431:10C-117(a).
(d) The provisions of this article shall not apply to any vehicle owned by or registered in the name of any agency of the
federal government, or to any antique motor vehicle as defined in section 249-1.
HRS § 431:10C-104 (Supp. 2003).
4. Judge Choi presided.
5. Judge Sandra P. Schutte (Judge Schutte) presided.
6. Based on our review of the record, it appears that the District Court of the Third Circuit's (the district court or the court) sentence of Brighter did not comply with the mandatory requirements of HRS § 431:10C-117(a)(3) (Supp. 2003), since the district court did not suspend Brighter's driver's license or require Brighter "to keep a nonrefundable motor vehicle insurance policy in force for six months." It also appears that the district court's sentence of Brighter did not comply with HRS § 431:10C-117(a)(5) (Supp. 2003), since the court did not impose on Brighter at least one of the mandatory penalties set forth in that statutory provision.
7. Commencing from the day the suspended sentence was entered, the six-month period was scheduled to expire on or about March 11, 2002.
8. Judge Choi presided.
9. Judge Schutte presided.
10. As of May 8, 2002, Brighter still owed $132 of the original $152 in imposed fines and fees.
11. Judge Choi presided.
12. The procedural requirements governing the revocation of probation are set forth in HRS §§ 706-625 (Supp. 2003), 706-627 (1993), and 706-630 (Supp. 2003). HRS § 706-630 provides, in relevant part, that "[u]pon the termination of the period of probation . . . , the defendant shall be relieved of any obligations imposed by the order of the court and shall have satisfied the disposition of the court." HRS § 706-625 (Supp. 2003). Pursuant to HRS § 706-625(1), "[t]he court, on application of a probation officer, the prosecuting attorney, the defendant, or on its own motion, after a hearing, may revoke probation . . . , reduce or enlarge the conditions of a sentence of probation, pursuant to the provisions applicable to the initial setting of the conditions and the provisions of section 706-627." HRS § 706-625(1) (Supp. 2003). HRS § 706-627(1) states, in part, that "[u]pon the filing of a motion to revoke a probation or a motion to enlarge the conditions imposed thereby, the period of probation shall be tolled pending the hearing upon the motion and the decision of the court." HRS § 706-627(1) (1993).These procedural requirements at one time also governed the revocation of a suspended sentence. In 1985, the legislature amended HRS §§ 706-625 and 706-627 to specifically authorize the prosecuting attorney to apply for a revocation of the suspension of sentence or probation. 1985 Haw. Sess. L. Act 192, §§ 1, 2. Act 192 also added the following subsection (c) to HRS § 706-625:
The court shall revoke the suspension of sentence or probation if the defendant has inexcusably failed to comply with a
substantial requirement imposed as a condition of the order or has been convicted of a felony. The court may revoke the
suspension of sentence or probation if the defendant has been convicted of another crime other than a felony.
Haw. Sess. L. Act 192, §1 at 327. Interestingly, the very next
year, the legislature, as part of a major overhaul of the
Hawaii Penal Code, deleted suspended sentences from the applicability
of most of the Penal Code procedural requirements
governing the revocation of probation and suspended sentences or the
modification of conditions imposed as part of
probation or a suspended sentence. See, e.g., 1986 Haw. Sess. L. Act 314, §§ 20, 21, 24, 25, 26, 27, 28, 29, 30, 31, 32 at
603-09. There is no indication in the legislative history as to why suspended sentences were removed from these statutory