426 P.3d 367 (Hawai‘i 2018), SCWC-14-0000391, State v. Visintin

Docket Nº:SCWC-14-0000391
Citation:426 P.3d 367, 143 Hawai‘i 143
Opinion Judge:POLLACK, J.
Party Name:STATE of Hawai‘i, Petitioner and Respondent/Plaintiff-Appellee, v. Shawn D. VISINTIN, Respondent and Petitioner/Defendant-Appellant.
Attorney:Tracy Murakami for petitioner/respondent. Daniel G. Hempey, Lihue, for respondent/petitioner.
Case Date:August 31, 2018
Court:Supreme Court of Hawai'i

Page 367

426 P.3d 367 (Hawai‘i 2018)

143 Hawai‘i 143

STATE of Hawai‘i, Petitioner and Respondent/Plaintiff-Appellee,


Shawn D. VISINTIN, Respondent and Petitioner/Defendant-Appellant.

No. SCWC-14-0000391

Supreme Court of Hawai‘i

August 31, 2018

Page 368

[Copyrighted Material Omitted]

Page 369


Tracy Murakami for petitioner/respondent.

Daniel G. Hempey, Lihue, for respondent/petitioner.




Page 370

[143 Hawai‘i 146] A protracted pretrial period can hinder the accurate determination of a case as evidence dissipates, as well as cause anxiety and hardship to a defendant awaiting the disposition of criminal charges. Thus, the Hawai‘i and U.S. Constitutions and our court rules grant an accused the right to a prompt adjudication, and a case generally must be dismissed if a defendant is held to answer for a period exceeding a prescribed time limit or an unreasonable amount of time without a trial ensuing.

In this case, the State was not prepared to proceed with a prosecution on the date of the defendant’s initial court appearance. In a process referred to as a calendar call, the court read aloud a list of defendants against whom no charges had been filed before stating orally that the defendants were free to go and that any bail or bond they posted would be discharged. Seven months later, the defendant was indicted for the same crime for which he had been arrested, and he moved to dismiss the case based on the State’s delay in bringing the prosecution.

We now hold that, because no written order or notice of the ruling was filed effectively discharging the defendant’s bail, he remained held to answer for the alleged crime underlying his arrest and the case must be dismissed under our court rules for this reason. We further hold that the Intermediate Court of Appeals erred by considering the legal merits of the defendant’s constitutional speedy trial challenge when the trial court failed to make the factual findings necessary for review. Accordingly, we remand the case for dismissal with or without prejudice as the trial court determines appropriate under our court rules. We also set forth applicable legal principles for the trial court’s evaluation of the defendant’s constitutional speedy trial challenge if the dismissal under our court rules is determined to be without prejudice.


A. Events on August 7, 2012 and Visintin’s Arrest

On August 7, 2012, around 2:40 a.m., Officer Brian Silva of the Kauai Police Department was on uniform patrol when he saw a person running across the street to a facility that appeared to be closed. Upon turning on his cruise lights, Officer Silva saw the figure of a person in the bushes of the facility’s driveway. Officer Silva exited his vehicle, ordered the person to come out of the bushes, and asked the person for identification. Officer Silva observed that the person was breathing heavily and sweating profusely and that there was an odor of alcohol emitting from the person. The person, who was identified as Shawn Visintin, provided Officer Silva with his driver’s license from the State of Montana.

While Visintin was removing his license from his wallet, Officer Silva saw a concealed weapons permit in the wallet. Suspecting that Visintin may be armed, Officer Silva asked him if he was carrying any weapons. After Visintin responded that he had a handgun, Officer Silva conducted a pat-down search of Visintin and discovered a semi-automatic .45 caliber handgun in the back part of the waistband of Visintin’s pants. Officer Silva then recovered the handgun, which was unloaded, and placed Visintin under arrest for place to keep pistol or revolver in violation of Hawaii Revised Statutes (HRS) § 134-25.1

B. Events Following Visintin’s Arrest

Visintin’s bail was set at $10,000. Upon posting bail on August 7, 2012, Visintin was given a "Bail/Bond Receipt, Acknowledgment, and Notice to Appear" form, indicating that he was to appear in district court on September 5, 2012.2

Page 371

[143 Hawai‘i 147] In an email to the prosecutor dated August 31, 2012, counsel for Visintin inquired whether Visintin’s matter would proceed as scheduled on September 5 or if the State of Hawai‘i intended to dismiss the charge without prejudice. Counsel provided Visintin’s full name and the "BBRA NO."3 associated with the case. The prosecutor responded that her office had not received the police reports and thus no complaint had been filed.

A "calendar call" was conducted in the District Court of the Fifth Circuit (district court) on September 5, 2012.4 During this proceeding, the district court called the names of those persons against whom no complaint had been filed, including Visintin, who was not present.5 The court announced that these persons were free to go and that any cash bail they posted would be refunded or their bonds would be discharged. However, the record does not contain a filed document or calendar notation indicating that Visintin’s bond was discharged, that the case was dismissed, or that the case was addressed by some other disposition. Nor does the record show that Visintin received notice of the outcome of the September 5, 2012 proceeding.

More than seven months later, on April 25, 2013, a grand jury indicted Visintin on one count of place to keep pistol or revolver in violation of HRS § 134-25 and one count of unregistered firearm in violation of HRS § § 134-3(a)6 and 134-17(b).7 The indictment was based on the same conduct for which Visintin had been arrested almost nine months earlier. On April 29, 2013, the Circuit Court of the Fifth Circuit (circuit court) issued a warrant for Visintin’s arrest and set bail at $10,000.8

In an email dated April 30, 2013, the prosecutor informed Visintin’s counsel of the indictment and the outstanding bench warrant for the arrest of Visintin, who had returned to Montana following his release from custody. The prosecutor suggested that Visintin fly back to Kaua‘i rather than be arrested and extradited. Defense counsel replied by email and inquired whether Visintin’s case could be resolved at arraignment. In a response dated May 1, 2013, the prosecutor stated that she would provide an answer at a later time as she was getting ready for a trial scheduled the following week. Three weeks later, in an email dated May 24, 2013, the prosecutor asked defense counsel whether Visintin was planning on returning to Kaua‘i to turn himself in, adding that she would not discuss a plea offer until Visintin was arrested on the warrant.

On May 31, 2013, the State of Montana filed a "Fugitive from Justice Complaint" (fugitive complaint) in response to the warrant issued by the circuit court. In the fugitive complaint, a Montana County Attorney stated that Visintin was wanted in Hawai‘i, Fifth Circuit, for the two indicted offenses; that a warrant had been issued for Visintin’s arrest; that Visintin "ha[d] fled from justice or ha[d] been convicted of crimes in that state and ha[d] escaped from confinement or ha[d] broken the terms of his bail, probation or parole"; and that a request had been made by the authorities in Hawai‘i for his arrest. (Capitalization omitted.) The fugitive complaint requested the issuance of a warrant from the Montana court commanding law enforcement officers "to apprehend the said fugitive" and bring him to court.

Page 372

[143 Hawai‘i 148] The next day, on June 1, 2013, Visintin was arrested on the fugitive complaint, and he proceeded to post bail in Montana. Three days later, the Montana County Attorney filed a motion to dismiss the fugitive complaint on the basis that "it [was] not in the interest of justice to pursue." The following day, the Montana court granted the motion, dismissed the case, and exonerated any bond posted by Visintin.

Visintin subsequently returned to Kaua‘i voluntarily and on August 1, 2013, filed a motion in the circuit court to recall the bench warrant issued after his indictment. The court denied Visintin’s request to be released on recognizance but reduced the bail amount from $10,000 to $100.[9] Visintin posted bail on August 6, 2013, and he was arraigned the same day.

C. Motion to Dismiss

1. Visintin’s Motion and the State’s Opposition

On August 20, 2013, Visintin filed a "Motion to Dismiss Based on Rule 48, Speedy Trial, Right to Bail and Due Process" (motion to dismiss) in the circuit court. In his motion, Visintin argued that the time limit set forth in Rule 48 of the Hawai‘i Rules of Penal Procedure (HRPP)10 was exceeded based on the plain language of the rule because more than nine months had passed...

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