Showing posts from July, 2009

HSC Splinters on when to Guide Lower Courts or Tribunals.

Kapuwai v. City and County of Honolulu (HSC July 16, 2009) Background. Kapuwai was injured on the job and brought a worker's compensation claim against his employer, the City. The City accepted responsibility. Later a doctor determined that Kapuwai suffered permanent disfigurement. After a hearing, a hearings officer concluded that the City had to pay additional amounts for the permanent disfigurement. The City appealed to the Labor and Industrial Relations Board (LIRAB), which modified the decision. Kapuwai appealed to the ICA. The ICA held that Kapuwai was entitled to relief that was not provided by the LIRAB if he would be able to prevail in proving certain findings before the LIRAB. The ICA, therefore, vacated the LIRAB's decision and remanded. The ICA also addressed the issue of attorney's fees. Kapuwai argued that the LIRAB erred in concluding that he was not entitled to attorney's fees. The ICA recognized that it could not decide the issue because

Restitution is a Collateral Consequence; Insured Losses play no part in Ordering Restitution.

State v. Tuialii (ICA June 30, 2009) Background. Tuialii was charged with theft in the first degree (HRS § 708-839.5(1)(a)) based on an alleged transfer of about $76,000 from his employer's account to his personal account. Tuialii pleaded no contest. The no-contest plea form stated that various penalties, including restitution, could be imposed by the court. The circuit court, however, did not mention restitution during his change-of-plea colloquy. At his sentencing, the circuit court, upon the State's recommendation, ordered that Tuialii pay full restitution. The circuit court entered a free-standing order of restitution. Tuialii filed a motion pursuant to Hawai'i Rules of Penal Procedure (HRPP) Rule 35 on the grounds that he did not change his plea knowingly, voluntarily, and intelligently. The motion was denied and Tuialii appealed. No Rule 40 Petition, no Remand for Withdrawal. Tuialii argued that because the circuit court failed to mention restitution