REPORT TITLE:
Probation Service Fee


DESCRIPTION:
Requires a court, upon sentencing a defendant to probation, to
order the defendant to pay a probation service fee of $150 for a
term of more than one year, or $75 for a term of one year or
less.  Establishes the probation services special fund. (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        
HOUSE OF REPRESENTATIVES                H.B. NO.           2648
TWENTIETH LEGISLATURE, 2000                                H.D. 2
STATE OF HAWAII                                            S.D. 1
                                                             
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                   A  BILL  FOR  AN  ACT
RELATING TO PROBATION.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Chapter 353, Hawaii Revised Statutes, is amended
 
 2 by adding a new section to be appropriately designated and to
 
 3 read as follows:
 
 4      "353-     Probation services fee; assessment.  Any
 
 5 defendant received for supervision pursuant to section 353-81
 
 6 shall be assessed a probation services fee pursuant to section
 
 7 706-A."
 
 8      SECTION 2.  Chapter 706, Hawaii Revised Statutes, is amended
 
 9 by adding two new sections to part III to be appropriately
 
10 designated and to read as follows:
 
11      "706-A  Probation services fee.  (1)  The court, when
 
12 sentencing a defendant to probation, shall order the defendant to
 
13 pay a probation services fee.  The amount of the fee shall be as
 
14 follows:
 
15      (a)  $150, when the term of probation is for more than one
 
16           year; or
 
17      (b)  $75, when the term of probation is for one year or
 
18           less;
 
19 provided that no fee shall be ordered when the court determines
 
20 that the defendant is unable to pay the fee.
 

 
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 1      (2)  The entire fee ordered or assessed shall be payable
 
 2 forthwith by cash, check, or by a credit card approved by the
 
 3 court.  When a defendant is also ordered to pay a fine the
 
 4 payment of the fee shall have priority over the payment of the
 
 5 fine.
 
 6      (3)  Any defendant received for supervision pursuant to
 
 7 section 353-81 shall be assessed a probation services fee
 
 8 pursuant to this section.
 
 9      (4)  The defendant shall pay the fee to the clerk of the
 
10 court.  The fee shall be deposited with the director of finance
 
11 who shall transmit the fee to the probation services special fund
 
12 pursuant to section 706-B.
 
13      706-B  Probation services special fund.  (1)  There is
 
14 established in the state treasury a special fund to be known as
 
15 the probation services special fund.  All probation services fees
 
16 collected under section 706-A shall be deposited into this fund.
 
17      (2)  Moneys in the probation services special fund shall be
 
18 used by the judiciary to monitor, enforce, and collect fees,
 
19 fines, restitution, other monetary obligations owed by
 
20 defendants, and other terms and conditions of probation.
 
21      (3)  The probation services special fund shall be exempt
 
22 from transfers for central service expenses pursuant to section
 

 
 
 
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 1 36-27, and reimbursements for departmental administration
 
 2 expenses pursuant to section 36-30."
 
 3      SECTION 3.  Section 36-27, Hawaii Revised Statutes, is
 
 4 amended to read as follows:
 
 5      "36-27  Transfers from special funds for central service
 
 6 expenses.  Except as provided in this section, and
 
 7 notwithstanding any other law to the contrary, from time to time,
 
 8 the director of finance, for the purpose of defraying the
 
 9 prorated estimate of central service expenses of government in
 
10 relation to all special funds, except the:
 
11      (1)  Special summer school and intersession fund under
 
12           section 302A-1310;
 
13      (2)  School cafeteria special funds of the department of
 
14           education;
 
15      (3)  Special funds of the University of Hawaii;
 
16      (4)  State educational facilities improvement special fund;
 
17      (5)  Convention center capital and operations special fund
 
18           under section 206X-10.5;
 
19      (6)  Special funds established by section 206E-6;
 
20      (7)  Housing loan program revenue bond special fund;
 
21      (8)  Housing project bond special fund;
 
22      (9)  Aloha Tower fund created by section 206J-17;
 
23     (10)  Domestic violence prevention special fund under section
 
24           321-1.3;
 

 
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 1     (11)  Spouse and child abuse special account under section
 
 2           346-7.5;
 
 3     (12)  Spouse and child abuse special account under section
 
 4           601-3.6;
 
 5     (13)  Funds of the employees' retirement system created by
 
 6           section 88-109;
 
 7     (14)  Unemployment compensation fund established under
 
 8           section 383-121;
 
 9     (15)  Hawaii hurricane relief fund established under chapter
 
10           431P;
 
11     (16)  Hawaii health systems corporation special funds;
 
12     (17)  Boiler and elevator safety revolving fund established
 
13           under section 397-5.5;
 
14     (18)  Tourism special fund established under section 201B-11;
 
15     (19)  Department of commerce and consumer affairs' special
 
16           funds;
 
17     (20)  Compliance resolution fund established under section
 
18           26-9;
 
19     (21)  Universal service fund established under chapter 269;
 
20     (22)  Integrated tax information management systems special
 
21           fund under section 231-3.2;
 
22     (23)  Insurance regulation fund under section 431:2-215;
 

 
 
 
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 1     (24)  Hawaii tobacco settlement special fund under section
 
 2           328L-2; [and]
 
 3     (25)  Emergency budget and reserve fund under section 328L-3;
 
 4           and
 
 5     (26)  Probation services special fund under section 706-B;
 
 6 shall deduct five per cent of all receipts of all other special
 
 7 funds, which deduction shall be transferred to the general fund
 
 8 of the State and become general realizations of the State.  All
 
 9 officers of the State and other persons having power to allocate
 
10 or disburse any special funds shall cooperate with the director
 
11 in effecting these transfers.  To determine the proper revenue
 
12 base upon which the central service assessment is to be
 
13 calculated, the director shall adopt rules pursuant to chapter 91
 
14 for the purpose of suspending or limiting the application of the
 
15 central service assessment of any fund.  No later than twenty
 
16 days prior to the convening of each regular session of the
 
17 legislature, the director shall report all central service
 
18 assessments made during the preceding fiscal year."
 
19      SECTION 5.  Section 36-30, Hawaii Revised Statutes, is
 
20 amended by amending subsection (a) to read as follows:
 
21      "(a)  Each special fund, except the:
 
22      (1)  Transportation use special fund established by section
 
23           261D-1;
 

 
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 1      (2)  Special summer school and intersession fund under
 
 2           section 302A-1310;
 
 3      (3)  School cafeteria special funds of the department of
 
 4           education;
 
 5      (4)  Special funds of the University of Hawaii;
 
 6      (5)  State educational facilities improvement special fund;
 
 7      (6)  Special funds established by section 206E-6;
 
 8      (7)  Aloha Tower fund created by section 206J-17;
 
 9      (8)  Domestic violence prevention special fund under section
 
10           321-1.3;
 
11      (9)  Spouse and child abuse special account under section
 
12           346-7.5;
 
13     (10)  Spouse and child abuse special account under section
 
14           601-3.6;
 
15     (11)  Funds of the employees' retirement system created by
 
16           section 88-109;
 
17     (12)  Unemployment compensation fund established under
 
18           section 383-121;
 
19     (13)  Hawaii hurricane relief fund established under chapter
 
20           431P;
 
21     (14)  Convention center capital and operations special fund
 
22           established under section 206X-10.5;
 
23     (15)  Hawaii health systems corporation special funds;
 

 
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 1     (16)  Tourism special fund established under section 201B-11;
 
 2     (17)  Compliance resolution fund established under section
 
 3           26-9;
 
 4     (18)  Universal service fund established under chapter 269;
 
 5     (19)  Integrated tax information management systems special
 
 6           fund;
 
 7     (20)  Insurance regulation fund under section 431:2-215;
 
 8     (21)  Hawaii tobacco settlement special fund under section
 
 9           328L-2; [and]
 
10     (22)  Emergency and budget reserve fund under section 328L-3;
 
11           and
 
12     (23)  Probation services special fund under section 706-B;
 
13 shall be responsible for its pro rata share of the administrative
 
14 expenses incurred by the department responsible for the
 
15 operations supported by the special fund concerned."
 
16      SECTION 6.  Chapter 706, Hawaii Revised Statutes, is amended
 
17 by amending the title of part III to read as follows:
 
18             "PART III.  FEES, FINES, AND RESTITUTION"
 
19      SECTION 7.  Section 706-644, Hawaii Revised Statutes, is
 
20 amended to read as follows:
 
21      "706-644  Consequences of nonpayment; imprisonment for
 
22 contumacious nonpayment; summary collection.(1)  When a
 
23 defendant is sentenced pursuant to section 706-605, granted a
 

 
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 1 conditional discharge pursuant to section 712-1255, or granted a
 
 2 deferred plea pursuant to chapter 853, and the defendant is
 
 3 ordered to pay a fee, fine, or restitution, whether as an
 
 4 independent order, as part of a judgment and sentence, or as a
 
 5 condition of probation or deferred plea, and the defendant
 
 6 defaults in the payment thereof or of any installment, the court,
 
 7 upon the motion of the prosecuting attorney or upon its own
 
 8 motion, may require the defendant to show cause why the
 
 9 defendant's default should not be treated as contumacious and may
 
10 issue a summons or a warrant of arrest for the defendant's
 
11 appearance.  Unless the defendant shows that the defendant's
 
12 default was not attributable to an intentional refusal to obey
 
13 the order of the court, or to a failure on the defendant's part
 
14 to make a good faith effort to obtain the funds required for the
 
15 payment, the court shall find that the defendant's default was
 
16 contumacious and may order the defendant committed until the fee,
 
17 fine, restitution, or a specified part thereof is paid.
 
18      (2)  When a fee, fine, or restitution is imposed on a
 
19 corporation or unincorporated association, it is the duty of the
 
20 person or persons authorized to make disbursement from the assets
 
21 of the corporation or association to pay it from those assets,
 
22 and their failure to do so may be held contumacious unless they
 
23 make the showing required in subsection (1).
 

 
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 1      (3)  The term of imprisonment for nonpayment of fee, fine,
 
 2 or restitution shall be specified in the order of commitment, and
 
 3 shall not exceed one day for each $25 of the fee or fine, thirty
 
 4 days if the fee or fine was imposed upon conviction of a
 
 5 violation or a petty misdemeanor, or one year in any other case,
 
 6 whichever is the shorter period.  A person committed for
 
 7 nonpayment of a fee or fine shall be given credit toward payment
 
 8 of the fee or fine for each day of imprisonment, at the rate of
 
 9 $25 per day.
 
10      (4)  If it appears that the defendant's default in the
 
11 payment of a fee, fine, or restitution is not contumacious, the
 
12 court may make an order allowing the defendant additional time
 
13 for payment, reducing the amount of each installment, or revoking
 
14 the fee, fine, or the unpaid portion thereof in whole or in part,
 
15 or converting the unpaid portion of the fee or fine to community
 
16 service.  A defendant shall not be discharged from an order to
 
17 pay restitution until the full amount of the restitution has
 
18 actually been collected or accounted for.
 
19      (5)  Unless discharged by payment or, in the case of a fee
 
20 or fine, service of imprisonment pursuant to subsection (3), an
 
21 order to pay a fee, fine, or restitution, whether as an
 
22 independent order, as a part of a judgment and sentence, or as a
 
23 condition of probation or deferred plea pursuant to chapter 853,
 
24 may be collected in the same manner as a judgment in a civil
 

 
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 1 action.  The State or the victim named in the order may collect
 
 2 the restitution, including costs, interest, and attorney's fees,
 
 3 pursuant to section 706-646.  The State may collect the fee or
 
 4 fine, including costs, interest, and attorney's fees pursuant to
 
 5 section 706-647.
 
 6      (6)  Attorney's fees, costs, and interest shall not be
 
 7 deemed part of the penalty, and no person shall be imprisoned
 
 8 under this section in default of payment of attorney's fees,
 
 9 costs, and interest."
 
10      SECTION 8.  There is appropriated from the probation
 
11 services special fund, the sum of $          , or so much thereof
 
12 as may be necessary for fiscal year 2000-2001, to carry out the
 
13 purposes of this Act.  The sum appropriated shall be expended by
 
14 the judiciary.
 
15      SECTION 9.  In codifying the new sections added to chapter
 
16 706, Hawaii Revised Statutes, by section 2 of this Act, the
 
17 revisor of statutes shall substitute appropriate section numbers
 
18 for the letters used in designating the new sections in this Act.
 
19      SECTION 10.  This Act shall not affect rights and duties
 
20 that matured, penalties that were incurred, and proceedings that
 
21 were begun, before its effective date.
 

 
 
 
 
 
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 1      SECTION 11.  Statutory material to be repealed is bracketed.
 
 2 New statutory material is underscored.
 
 3      SECTION 12.  This Act shall take effect on July 1, 2000;
 
 4 provided that amendments made to section 36-27 by this Act shall
 
 5 not be repealed when that section is reenacted on July 31, 2003,
 
 6 pursuant to section 9 of Act 142, Session Laws of Hawaii 1998.