PART III. FINES AND RESTITUTION

 

Note

 

Part heading amended by L 1998, c 269, 3; L 2000, c 205, 5.

 

706-640 Authorized fines. (1) A person who has been convicted of an offense may be sentenced to pay a fine not exceeding:

(a) $50,000, when the conviction is of a class A felony, murder in the first or second degree, or attempted murder in the first or second degree;

(b) $25,000, when the conviction is of a class B felony;

(c) $10,000, when the conviction is of a class C felony;

(d) $2,000, when the conviction is of a misdemeanor;

(e) $1,000, when the conviction is of a petty misdemeanor or a violation;

(f) Any higher amount equal to double the pecuniary gain derived from the offense by the defendant;

(g) Any higher or lower amount specifically authorized by statute.

(2) Notwithstanding section 706-641, the court shall impose a mandatory fine upon any defendant convicted of theft in the first or second degree committed by receiving stolen property as set forth in section 708-830(7). The fine imposed shall be the greater of double the value of the stolen property received or $25,000 in the case of a conviction for theft in the first degree; or the greater of double the value of the stolen property received or $10,000 in the case of a conviction for theft in the second degree. The mandatory fines imposed by this subsection shall not be reduced except and only to the extent that payment of the fine prevents the defendant from making restitution to the victim of the offense, or that the defendant's property, real or otherwise, has been forfeited under chapter 712A as a result of the same conviction for which the defendant is being fined under this subsection. Consequences for nonpayment shall be governed by section 706-644; provided that the court shall not reduce the fine under section 706-644(4) or 706-645. [L 1972, c 9, pt of 1; am L 1986, c 314, 33; am L 1987, c 181, 5; am L 1997, c 149, 4]

 

COMMENTARY ON 706-640

 

This section sets forth the maximum fine authorized for any offense according to grade and class. The maximum amount provided should be sufficient for both deterrent and correctional purposes; discretion in imposing a fine within the set maximum should be guided by the criteria set forth in 706-641.

The most significant use of the fine as a means of penalizing the offender is in offenses involving pecuniary gain. When the amount of pecuniary gain is proven, subsection (5) subordinates the stated amounts and authorizes a greater fine in an amount equal to double the pecuniary gain.

Subsection (6) acknowledges that other higher or lower fines may be authorized with respect to specific offenses when deemed necessary or appropriate to the situation. Subsection (6) also preserves and recognizes higher and lower limits for offenses which are set by provisions of law not within the Penal Code.

Because of the questionable wisdom and constitutionality of authorizing the disposition of assessing costs against convicted defendants in criminal cases, the Code departs from prior Hawaii law and does not authorize such a sentence. As a practical matter, costs are almost never imposed in criminal cases. The departure is from previous statutory language rather than practice.

 

SUPPLEMENTAL COMMENTARY ON 706-640

 

Act 314, Session Laws 1986, increased the maximum amounts of fines to allow a sentencing court discretion to impose severe fines, especially when the offender derives great financial gain from the criminal activity. Conference Committee Report No. 51-86.

Act 181, Session Laws 1987, added language to this section to reflect the recently created statutory murder and attempted murder crimes. These crimes are murder in the first and second degree and attempted murder in the first and second degree. Senate Standing Committee Report No. 1130.

Act 149, Session Laws 1997, amended this section to impose mandatory fines upon persons convicted of receiving stolen property. With the property crime rate continuing to escalate at a dramatic rate, the legislature supported the imposition of severe penalties for those who are in receipt of stolen property, in an effort to deter the criminal activity. Senate Standing Committee Report No. 1600.

 

 

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