Delay in Determining if Defendant is Indigent or not Excluded from Rule 48

By Benjamin Lowenthal -
State v. Foo (ICA December 29, 2016)
Background. Quincy Choy Foo was charged with misdemeanors. He appeared in court and had no counsel. The district court referred Foo to the Office of the Public Defender to determine if he qualified for its services and ordered him to return in twenty-one days. Choy Foo appeared again without a lawyer and told the court that he had an appointment set up with the Public Defender’s Office. The case was continued again. He appeared a third time and said that the Public Defender’s Office told him to ask for more time because its deputies were in training. The court continued it again. This time he had a Public Defender who entered a not-guilty plea and demanded a jury trial. The district court remanded the case to the circuit court and set another date. At the next date before the circuit court, Choy Foo again pleaded not guilty and set the matter for trial. The circuit court continued the matter twice over the State’s objection.

Choy Foo filed a motion to dismiss pursuant to Hawaii Rules of Penal Procedure (HRPP) Rule 48. Choy Foo’s calculation showed a total of 189 days from his arrest and setting of bail to the trial date. The prosecution filed a memorandum in opposition with its calculation of 168 days. The amount of time in dispute was the twenty-day-day delay from the initial arraignment in the district court to the hearing in which Choy Foo was ordered to meet with the Public Defender. The circuit court granted the motion and included the period of time. The circuit court also dismissed the case with prejudice. The prosecution appealed.

Lawyer Math: The Rule 48 Problem. If trial does not commence within six months “from the date of arrest if bail is set or from the filing of the charge, whichever is sooner,” the case must be dismissed. HRPP Rule 48(b). Six months is 180 days. There are periods that must be excluded from the 180-day calculation.

Delays caused “by collateral or other proceedings concerning the defendant, including but not  limited to penal irresponsibility examinations and periods during which the defendant is incompetent to stand trial, pretrial motions, interlocutory appeals and trials of other charges” are excluded from the 180 days. HRPP Rule 48(c)(1). The rule further explains that certain pretrial motions—from their filing to “prompt disposition” are per se excluded. HRPP Rule 48(d)(1). A motion for withdrawal as counsel and appointment of new counsel is one of those motions.

The ICA held that the 21-day-delay caused by Choy Foo’s initial referral to the Public Defender’s Office should have been excluded under HRPP Rule 48(c)(1). The ICA reasoned that the delay in getting the services of the Public Defender is akin to a motion to withdrawal and appointment of substitute counsel and that the general language of (c)(1) adequately covers this situation. Alternatively, the ICA held that this situation is part of the “good cause” catchall in HRPP Rule 48(c)(8).


To Dismiss With or Without Prejudice . . . that is not in Question. The ICA also took issue with the dismissal with prejudice. The trial court failed to consider and articulate on the record the factors laid out in State v. Estencion, 63 Haw. 264, 625 P.2d 1040 (1981). Choy Foo agreed.

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