State v. Viloria
| Decision Date | 01 September 1988 |
| Docket Number | No. 12331,12331 |
| Citation | 70 Haw. 58,759 P.2d 1376 |
| Parties | STATE of Hawaii, Plaintiff-Appellee, v. Herbert I. VILORIA, Defendant-Appellant. |
| Court | Hawaii Supreme Court |
Syllabus by the Court
1. When a sentencing court revokes probation and reimposes another probationary sentence, the law requires such a revocation in two situations. The probationer either must have inexcusably failed to comply with a substantial requirement of probation or have been convicted of a felony.
2. Given the legislative policy favoring the withholding of imprisonment when it is inappropriate, and the clear language of the statute, we hold that a sentencing court has the discretion to revoke a probationary sentence and reimpose another sentence of probation if the court determines that another term of probation is the better sentencing alternative.
Susan Barr (Derrick H.M. Chan, with her on the brief), Deputy Public Defenders, Honolulu, for defendant-appellant.
Vickie L. Silberstein, Deputy Pros. Atty., Honolulu, for plaintiff-appellee.
Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.
Defendant Herbert Viloria appeals from the lower court's June 30, 1987 revocation of probation and resentencing to imprisonment on the ground that the lower court lacked jurisdiction. Relying upon State v. Kala, 6 Haw.App. 253, 718 P.2d 1117 (1986), Defendant argues that once probation is revoked, a new term of probation may not be imposed. As discussed below, we disagree with the rationale of Kala and therefore we decline to adopt it. We find that the lower court had jurisdiction to impose a sentence of imprisonment on June 30, 1987, and therefore, affirm Defendant's sentence.
On June 5, 1980, Defendant was convicted of two counts of Robbery in the First Degree (Hawaii Revised Statutes ["HRS"] § 708-840 (1976)); two counts of Kidnapping (HRS § 707-720); and one count of Unauthorized Control of a Propelled Vehicle (HRS § 708-836) and was sentenced to five years probation. On August 11, 1980, Defendant was also convicted of one count of Possession of a Firearm by a Person Convicted of Certain Crimes (HRS § 134-7(b) (1976)) and two counts of Robbery in the Second Degree (HRS § 708-841 (1976)). Defendant was sentenced to five years probation for these offenses.
On April 13, 1982, the lower court granted Defendant's motion to modify probation under HRS § 706-625 (1976) and ordered probation to run anew from March 24, 1982, in all four cases. On July 17, 1984, the State moved to revoke Defendant's probation under HRS § 706-628 (Supp.1984). On January 3, 1985, the lower court found that Defendant inexcusably failed to comply with substantial requirements of probation, revoked his probation, and resentenced him to concurrent imprisonment.
On March 1, 1985, Defendant moved for reconsideration under Hawaii Rules of Penal Procedure ("HRPP") Rule 35. On April 3, 1985, the lower court granted his motion and reduced sentence to five years probation with identical terms in each of the four cases.
On June 30, 1987, upon the State's motion under HRS § 706-625 (Supp.1987), the lower court found that Defendant violated substantial terms of probation and revoked its April 3, 1985, probationary sentence. The court imposed a sentence of imprisonment with the terms being identical to those originally imposed on January 3, 1985.
The first issue on appeal is whether the lower court had jurisdiction to resentence Defendant on June 30, 1987. A sentencing court has jurisdiction to revoke a sentence of probation up until the termination of probation. State v. Palama, 62 Haw. 159, 612 P.2d 1168 (1980).
Defendant argues that the lower court did not have jurisdiction to resentence him on June 30, 1987, because the five year probationary sentence originally imposed in 1980 and extended in 1982 terminated in August of 1986. Resolution of the second issue answers the question of jurisdiction in the affirmative.
The second issue on appeal is whether a sentencing court has the discretion to revoke a sentence of probation and reimpose another sentence of probation resulting in a total length of probation greater than the statutory maximum. See HRS § 706-623.
Defendant argues that a sentencing court may not revoke a sentence of probation and reimpose another sentence of probation. State v. Kala, 6 Haw.App. 253, 718 P.2d 1117 (1986). He avers that the only alternatives the sentencing court has is to either modify probation by imposing further conditions under HRS § 706-625(a) (1976) or to revoke probation and sentence him to imprisonment under HRS § 706-628 (Supp.1984).
In State v. Kala, 6 Haw.App. 253, 718 P.2d 1117 (1986), the Intermediate Court of Appeals interpreted HRS § 706-625 (1976) 1 to require that Id. at ----, 718 P.2d at 1121. The ICA reasoned that a reimposition of probation after revocation of the same would allow "an indeterminate, possibly interminable, period of probation." Id. The court concluded that this result was not the intention of the legislature. We disagree.
If a statute is clear and unambiguous on its face, and does not lead to an absurd result, then the statute must be given the plain and obvious interpretation. State v. Palama, 62 Haw. 159, 612 P.2d 1168 (1980). HRS § 706-628(2) (Supp.1984) requires the sentencing court to impose "any sentence that might have been imposed originally for the crime of which he was convicted." (Emphasis added). 2 Probation was authorized as an appropriate sentencing option in 1980 when Defendant was originally sentenced. See HRS § 706-620 (1976). 3
In 1985, when the sentencing court revoked Defendant's probation and reimposed another five year probationary sentence, the law required such a revocation in two situations. The probationer either must have inexcusably failed to comply with a substantial requirement of probation or have been convicted of a felony. HRS § 706-628(1) (Supp.1984). See State v. Correia, 68 Haw. 139, 705 P.2d 1045 (1985); State v. Nakamura, 59 Haw. 378, 581 P.2d 759 (1978). Generally, such a violation of the terms of probation indicates that the probationer has not yet received the full rehabilitative benefit that probation is designed to induce. Therefore, in our view, the sentencing court has three alternatives. The court may (1) modify the terms of probation; (2) revoke probation and sentence him to imprisonment; or (3) revoke probation and resentence him to another term of probation.
If we were to accept the ICA's reasoning in Kala and the arguments of Defendant, the discretion of the sentencing court would be unduly restricted to options (1) and (2). Under this reasoning, where Defendant had only 16 months remaining on the original probationary term, the sentencing court would be faced with the alternative of either increasing the strictness of the probation for these remaining months or imprisoning him. If the court felt that the remainder of the probationary term was too short to obtain its rehabilitative objectives, the court would be forced to imprison the defendant. Given the legislative policy favoring the withholding of imprisonment when it is inappropriate, and the clear language of the statute, we hold that a sentencing court has the discretion to revoke a probationary sentence and reimpose another sentence of probation if the court determines that another term of probation is the better sentencing alternative.
The Ninth Circuit Court of Appeals interprets the federal probation statutes 4 to authorize a sentencing court to revoke a probationary sentence and reimpose another term of probation. Nicholas v. United States, 527 F.2d 1160 (9th Cir.1976). The Nicholas court reasoned that probation was within the definition of "sentence" in the applicable statute. 5 The court stated that they found "no merit to the argument that a federal court cannot reinstate probation as part of the punishment assigned, when probation is revoked and deferred sentencing takes place." Nicholas, 527 F.2d at 1162 ( quoting Smith v. United States, 505 F.2d 893, 895 (5th Cir.1974)). See United States v. Hill, 719 F.2d 1402, 1404 (9th Cir.1983). The Fifth and Eighth Circuits agree with this position. United States v. Olivares-Martinez, 767 F.2d 1135, 1137 (5th Cir.1985); Smith v. United States, 505 F.2d 893, 894-95 (5th Cir.1974); United States v. Colvin, 644 F.2d 703, 705 (8th Cir.1981); United States v. Rodgers, 588 F.2d 651, 654 (8th Cir.1978). Cf. United States v. Martin, 786 F.2d 974, 975 (10th Cir.1986); Fox v. United States, 354 F.2d 752, 753-54 (10th Cir.1965). Several states that have considered this issue have resolved the question in favor of the reimposition of probation after revocation of the original probationary term. In re Hamm, 133 Cal.App.3d 60, 183 Cal.Rptr. 626 (Cal.Ct.App.1982); Commonwealth v. Burrell, 497 Pa. 367, 441 A.2d 744 (1982); cf. Christian v. State, 62 Md.App. 296, 489 A.2d 64 (1985).
Therefore, in April of 1985, the sentencing court properly exercised its discretion under HRS § 706-628 (Supp.1984) when it revoked Defendant's probation and reimposed another sentence of probation. It follows that the sentencing court had jurisdiction to revoke Defendant's probation and impose a sentence of imprisonment on June 30, 1987. HRS § 706-625(e) (1985 and Supp.1987).
The sentencing court's June 30, 1987 order of revocation of probation and resentencing is affirmed.
1 HRS § 706-625 (1976) reads as follows: ...
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