Probation doesn't toll when the motion to revoke probation is never heard on the merits and is dismissed
State v. Banares (ICA October 16, 2023)
Background. Joven Joseph Banares was charged with promoting a
dangerous drug in the third degree, pleaded no contest, and was sentenced to
four years of probation. Probation started in May 2016. A little more than a
year into his probationary term, the prosecution filed a motion to revoke
probation and to resentence him to imprisonment based on alleged violations of
the terms and conditions of probation. To bring Banares into court, the court
issued a warrant for his arrest on February 7, 2017. The warrant was not served
until January 17, 2022.
Banares moved to dismiss on the grounds that the delay
in serving the warrant violated Hawai'i Rules of Penal Procedure Rule 9.
Banares also argued that upon dismissal, his time on probation would have run because
it has not been tolled. The prosecution agreed that there was no effort to
serve the warrant and agreed that there was a Rule 9 violation. It did object
to tolling the time. The circuit court—the Hon. Judge Kevin Morikone—granted the
motion in part. The circuit court concluded there was a Rule 9 violation, but
tolled the probationary period pursuant to HRS § 706-627. Banares appealed.
Violations of HRPP Rule 9 and the remedy. Warrants “shall be
executed without unnecessary delay by the arrest of the defendant.” HRPP Rule 9(c)(3)(i).
See also State v. Owens, 116 Hawai'i 172, 174-75, 127 P.3d 484, 486-87
(2007). The delay here was nearly five years old and the prosecution conceded
that it should have been served sooner. The fact that there was a violation of HRPP
Rule 9 is not in dispute. The motion to revoke probation must be “dismissed.” Id.
Now what? That leaves the issue of whether Banares was still
on probation under HRS § 706-627:
(1) Upon 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. The period of
tolling shall be computed from the filing date of the motion through and including
the filing date of the written decision concerning the motion for purposes of
computation of the remaining period of probation, if any. In the event the court
fails to file a written decision upon the motion, the period shall be computed by
reference to the date the court makes a decision upon the motion in open court.
During the period of tolling of the probation, the defendant shall remain
subject to all terms and conditions of the probation except as otherwise
provided by this chapter.
(2) In the event the court, following hearing, refuses to
revoke the probation or grant the requested enlargement of conditions thereof
because the defendant’s failure to comply therewith was excusable, the defendant
may be granted the period of tolling of the probation for purposes of
computation of the remaining probation, if any.
The power to toll probation is limited to cases
when there has been a ruling on the merits of the prosecution’s motion to
revoke probation. “[I]mplicit
in the task of statutory construction is our foremost obligation to ascertain
and give effect to the intention of the legislature, which is to be obtained
primarily from the language contained in the statute itself.” State v. Borge,
152 Hawai'i 458, 464, 526 P.3d 435, 441 (2023). The ICA noted that probation is
tolled pending “the hearing upon the motion [to revoke probation] and the
decision of the court.” HRS § 706-627(1). The ICA held that the plain language
of the statute allows tolling only when there has been a “decision” “concerning
the motion” or, when there is no written decision upon the announcement of the “decision
upon the motion” in open court. Id. There was “decision” in this case because
before the hearing on the prosecution’s motion to revoke was heard, Banares
moved to dismiss the proceedings based on the HRPP Rule 9 violation.
The ICA held that “[b]ecause the circuit court did not . . . hear or issue a decision concerning or upon the motion to revoke, the tolling provision set forth in HRS § 706-627 cannot apply to toll the period of Banares’s probation.” The ICA vacated the circuit court’s ruling that tolled the probation.