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:

 

Tolling of probation. (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.