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. (SD2)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2690
THE SENATE                              S.B. NO.           S.D. 2
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
________________________________________________________________
________________________________________________________________


                   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
 

 
Page 2                                                     2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


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

 
Page 3                                                     2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


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

 
Page 4                                                     2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1     (10)  Domestic violence prevention special fund under section
 
 2           321-1.3;
 
 3     (11)  Spouse and child abuse special account under section
 
 4           346-7.5;
 
 5     (12)  Spouse and child abuse special account under section
 
 6           601-3.6;
 
 7     (13)  Funds of the employees' retirement system created by
 
 8           section 88-109;
 
 9     (14)  Unemployment compensation fund established under
 
10           section 383-121;
 
11     (15)  Hawaii hurricane relief fund established under chapter
 
12           431P;
 
13     (16)  Hawaii health systems corporation special funds;
 
14     (17)  Boiler and elevator safety revolving fund established
 
15           under section 397-5.5;
 
16     (18)  Tourism special fund established under section 201B-11;
 
17     (19)  Department of commerce and consumer affairs' special
 
18           funds;
 
19     (20)  Compliance resolution fund established under section
 
20           26-9;
 
21     (21)  Universal service fund established under chapter 269;
 
22     (22)  Integrated tax information management systems special
 
23           fund under section 231-3.2;
 

 
Page 5                                                     2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1     (23)  Insurance regulation fund under section 431:2-215;
 
 2     (24)  Hawaii tobacco settlement special fund under section
 
 3           328L-2; [and]
 
 4     (25)  Emergency budget and reserve fund under section 328L-3;
 
 5           and
 
 6     (26)  Probation services special fund under section 706-B;
 
 7 shall deduct five per cent of all receipts of all other special
 
 8 funds, which deduction shall be transferred to the general fund
 
 9 of the State and become general realizations of the State.  All
 
10 officers of the State and other persons having power to allocate
 
11 or disburse any special funds shall cooperate with the director
 
12 in effecting these transfers.  To determine the proper revenue
 
13 base upon which the central service assessment is to be
 
14 calculated, the director shall adopt rules pursuant to chapter 91
 
15 for the purpose of suspending or limiting the application of the
 
16 central service assessment of any fund.  No later than twenty
 
17 days prior to the convening of each regular session of the
 
18 legislature, the director shall report all central service
 
19 assessments made during the preceding fiscal year."
 
20      SECTION 5.  Section 36-30, Hawaii Revised Statutes, is
 
21 amended by amending subsection (a) to read as follows:
 
22      "(a)  Each special fund, except the:
 
23      (1)  Transportation use special fund established by section
 

 
Page 6                                                     2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1           261D-1;
 
 2      (2)  Special summer school and intersession fund under
 
 3           section 302A-1310;
 
 4      (3)  School cafeteria special funds of the department of
 
 5           education;
 
 6      (4)  Special funds of the University of Hawaii;
 
 7      (5)  State educational facilities improvement special fund;
 
 8      (6)  Special funds established by section 206E-6;
 
 9      (7)  Aloha Tower fund created by section 206J-17;
 
10      (8)  Domestic violence prevention special fund under section
 
11           321-1.3;
 
12      (9)  Spouse and child abuse special account under section
 
13           346-7.5;
 
14     (10)  Spouse and child abuse special account under section
 
15           601-3.6;
 
16     (11)  Funds of the employees' retirement system created by
 
17           section 88-109;
 
18     (12)  Unemployment compensation fund established under
 
19           section 383-121;
 
20     (13)  Hawaii hurricane relief fund established under chapter
 
21           431P;
 
22     (14)  Convention center capital and operations special fund
 
23           established under section 206X-10.5;
 

 
Page 7                                                     2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1     (15)  Hawaii health systems corporation special funds;
 
 2     (16)  Tourism special fund established under section 201B-11;
 
 3     (17)  Compliance resolution fund established under section
 
 4           26-9;
 
 5     (18)  Universal service fund established under chapter 269;
 
 6     (19)  Integrated tax information management systems special
 
 7           fund;
 
 8     (20)  Insurance regulation fund under section 431:2-215;
 
 9     (21)  Hawaii tobacco settlement special fund under section
 
10           328L-2; [and]
 
11     (22)  Emergency and budget reserve fund under section 328L-3;
 
12           and
 
13     (23)  Probation services special fund under section 706-B;
 
14 shall be responsible for its pro rata share of the administrative
 
15 expenses incurred by the department responsible for the
 
16 operations supported by the special fund concerned."
 
17      SECTION 6.  Chapter 706, Hawaii Revised Statutes, is amended
 
18 by amending the title of part III to read as follows:
 
19             "PART III.  FEES, FINES, AND RESTITUTION"
 
20      SECTION 7.  Section 706-624, Hawaii Revised Statutes, is
 
21 amended by amending subsection (2) to read as follows:
 
22      "(2)  Discretionary conditions.  The court may provide, as
 
23 further conditions of a sentence of probation, to the extent that
 

 
Page 8                                                     2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1 the conditions are reasonably related to the factors set forth in
 
 2 section 706-606 and to the extent that the conditions involve
 
 3 only deprivations of liberty or property as are reasonably
 
 4 necessary for the purposes indicated in section 706-606(2), that
 
 5 the defendant:
 
 6      (a)  Serve a term of imprisonment not exceeding one year in
 
 7           felony cases, and not exceeding six months in
 
 8           misdemeanor cases; provided that notwithstanding any
 
 9           other provision of law, any order of imprisonment under
 
10           this subsection that provides for prison work release
 
11           shall require the defendant to pay thirty per cent of
 
12           the defendant's gross pay earned during the prison work
 
13           release period to satisfy any restitution order.  The
 
14           payment shall be handled by the adult probation
 
15           division and shall be paid to the victim on a monthly
 
16           basis;
 
17      (b)  Perform a specified number of hours of services to the
 
18           community as described in section 706-605(1)(e);
 
19      (c)  Support the defendant's dependents and meet other
 
20           family responsibilities;
 
21      (d)  Pay a fee as specified in section 706-A;
 
22     [(d)] (e)  Pay a fine imposed pursuant to section
 
23           706-605(1)(b);
 

 
Page 9                                                     2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1     [(e)] (f)  Make restitution as specified in section
 
 2           706-605(1)(d);
 
 3     [(f)] (g)  Work conscientiously at suitable employment or
 
 4           pursue conscientiously a course of study or vocational
 
 5           training that will equip the defendant for suitable
 
 6           employment;
 
 7     [(g)] (h)  Refrain from engaging in a specified occupation,
 
 8           business, or profession bearing a reasonably direct
 
 9           relationship to the conduct constituting the crime or
 
10           engage in the specified occupation, business, or
 
11           profession only to a stated degree or under stated
 
12           circumstances;
 
13     [(h)] (i)  Refrain from frequenting specified kinds of places
 
14           or from associating unnecessarily with specified
 
15           persons, including but not limited to the victim of the
 
16           crime, any witnesses, regardless of whether they
 
17           actually testified in the prosecution, law enforcement
 
18           officers, co-defendants, or other individuals with whom
 
19           contact may adversely affect the rehabilitation or
 
20           reformation of the person convicted;
 
21     [(i)] (j)  Refrain from use of alcohol or any use of narcotic
 
22           drugs or controlled substances without a prescription;
 
23     [(j)] (k)  Refrain from possessing a firearm, destructive
 

 
Page 10                                                    2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1           device, or other dangerous weapon;
 
 2     [(k)] (l)  Undergo available medical, psychiatric, or
 
 3           psychological treatment, including treatment for drug
 
 4           or alcohol dependency, and remain in a specified
 
 5           institution if required for that purpose;
 
 6     [(l)] (m)  Reside in a specified place or area or refrain
 
 7           from residing in a specified place or area;
 
 8     [(m)] (n)  Submit to periodic urinalysis or other similar
 
 9           testing procedure;
 
10     [(n)] (o)  Satisfy other reasonable conditions as the court
 
11           may impose;
 
12     [(o)] (p)  Refrain from entering specified geographical areas
 
13           without the court's permission; or
 
14     [(p)] (q)  Refrain from leaving the person's dwelling place
 
15           except to go to and from the person's place of
 
16           employment, the office of the person's physician or
 
17           dentist, the probation office or as may be granted by
 
18           the person's probation officer pursuant to court order.
 
19           As used in this paragraph, "dwelling place" includes
 
20           the person's yard or, in the case of condominiums, the
 
21           common elements."
 
22      SECTION 8.  Section 706-644, Hawaii Revised Statutes, is
 
23 amended to read as follows:
 

 
Page 11                                                    2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1      "706-644  Consequences of nonpayment; imprisonment for
 
 2 contumacious nonpayment; summary collection.(1)  When a
 
 3 defendant is sentenced pursuant to section 706-605, granted a
 
 4 conditional discharge pursuant to section 712-1255, or granted a
 
 5 deferred plea pursuant to chapter 853, and the defendant is
 
 6 ordered to pay a fee, fine, or restitution, whether as an
 
 7 independent order, as part of a judgment and sentence, or as a
 
 8 condition of probation or deferred plea, and the defendant
 
 9 defaults in the payment thereof or of any installment, the court,
 
10 upon the motion of the prosecuting attorney or upon its own
 
11 motion, may require the defendant to show cause why the
 
12 defendant's default should not be treated as contumacious and may
 
13 issue a summons or a warrant of arrest for the defendant's
 
14 appearance.  Unless the defendant shows that the defendant's
 
15 default was not attributable to an intentional refusal to obey
 
16 the order of the court[,] or to a failure on the defendant's part
 
17 to make a good faith effort to obtain the funds required for the
 
18 payment, the court shall find that the defendant's default was
 
19 contumacious and may order the defendant committed until the fee,
 
20 fine, restitution, or a specified part thereof is paid.
 
21      (2)  When a fee, fine, or restitution is imposed on a
 
22 corporation or unincorporated association, it is the duty of the
 
23 person or persons authorized to make disbursement from the assets
 

 
Page 12                                                    2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


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

 
Page 13                                                    2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1 order to pay a fee, fine, or restitution, whether as an
 
 2 independent order, as a part of a judgment and sentence, or as a
 
 3 condition of probation or deferred plea pursuant to chapter 853,
 
 4 may be collected in the same manner as a judgment in a civil
 
 5 action.  The State or the victim named in the order may collect
 
 6 the restitution, including costs, interest, and attorney's fees,
 
 7 pursuant to section 706-646.  The State may collect the fee or
 
 8 fine, including costs, interest, and attorney's fees pursuant to
 
 9 section 706-647.
 
10      (6)  Attorney's fees, costs, and interest shall not be
 
11 deemed part of the penalty, and no person shall be imprisoned
 
12 under this section in default of payment of attorney's fees,
 
13 costs, and interest."
 
14      SECTION 9.  There is appropriated from the probation
 
15 services special fund, the sum of $          , or so much thereof
 
16 as may be necessary for fiscal year 2000-2001, to carry out the
 
17 purposes of the probation services special fund.  The sum
 
18 appropriated shall be expended by the judiciary.
 
19      SECTION 10.  In codifying the new sections added to chapter
 
20 706, Hawaii Revised Statutes, by section 2 of this Act, the
 
21 revisor of statutes shall substitute appropriate section numbers
 
22 for the letters used in designating the new sections in this Act.
 
23      SECTION 11.  This Act shall not affect rights and duties
 

 
Page 14                                                    2690
                                     S.B. NO.           S.D. 2
                                                        
                                                        


 1 that matured, penalties that were incurred, and proceedings that
 
 2 were begun, before its effective date.
 
 3      SECTION 12.  Statutory material to be repealed is bracketed.
 
 4 New statutory material is underscored.
 
 5      SECTION 13.  This Act shall take effect on July 1, 2000;
 
 6 provided that amendments made to section 36-27 by this Act shall
 
 7 not be repealed when that section is reenacted on July 31, 2003,
 
 8 pursuant to section 9 of Act 142, Session Laws of Hawaii 1998.