No. 27919 (May 29, 2008)
Opinion [pdf]
Opinion [pdf]
OPINION OF THE COURT BY ACOBA, J.Dissenting opinion by Nakayama, J. [pdf]
Petitioner/Plaintiff-Appellee State of Hawai'i (Petitioner) seeks review of the October 17, 2007 Judgment of the Intermediate Court of Appeals (ICA), entered pursuant to its published opinion filed on September 28, 2007, see State v. Shannon, 116 Hawai'i 38, 69 P.3d 990 (App. 2007), vacating the April 6, 2006 Judgment of the District Court of the First Circuit, Kaneohe Division (the court) revoking the Deferred Acceptance of Guilty Plea (DAGP) granted to Respondent/Defendant-Appellant Eric K. Shannon (Respondent) and convicting him of criminal trespass in the second degree, in violation of HRS § 706-815(a)(1) (1993).
We hold that (1) under HRS § 853-1 (1993 & Supp. 2007), referring to a DAGP, and incorporating HRS § 706-624 (1993 & Supp. 2007), pertaining to probation, the defendant must be given a written copy of the conditions imposed pursuant to his or her DAGP, (2) an "actual notice" rule such as that applied by federal courts cannot be validly substituted for the written notice required by our statutes, (3) Respondent was not given a written copy of his conditions, and, therefore, under State v. Lee, 10 Haw. App. 192, 862 P.2d 295 (1993), his DAGP could not be revoked by the court, (4) further, consistent with the written conditions requirement of HRS § 853-3 (1993) as it is construed with HRS § 706-627(1) (1993), a motion to revoke DAGP for failure to comply with its conditions must be in writing, (5) Petitioner did not file a written motion to revoke Respondent's DAGP, therefore, (a) Respondent's period of deferral was not tolled, and (b) the deferral period expired before the court ruled on the motion to revoke. Accordingly, Respondent's DAGP could not be revoked and Petitioner's motion to revoke must be dismissed with prejudice. Ultimately, then, the ICA did not gravely err in vacating the court's judgment. See Shannon, 116 Hawai'i at 39, 69 P.3d at 991. [footnotes omitted]
