§804-4 When a matter of right. (a) If the charge is for an offense for which bail is allowable under section 804-3, the defendant may be admitted to bail before conviction as a matter of right and under the least restrictive conditions required to ensure the defendant's appearance and to protect the public. Except for section 712-1207(7), bail shall be allowed for any person charged under section 712-1207 only subject to the mandatory condition that the person observe geographic restrictions that prohibit the defendant from entering or remaining on public property, in Waikiki and other areas in the State designated by county ordinance during the hours from 6 p.m. to 6 a.m.; and provided further that nothing contained in this subsection shall be construed as prohibiting the imposition of stricter geographic restrictions under section 804-7.1. The right to bail shall continue after conviction of a misdemeanor, petty misdemeanor, or violation, and release on bail may continue, in the discretion of the court, after conviction of a felony until the final determination of any motion for a new trial, appeal, habeas corpus, or other proceedings that are made, taken, issued, or allowed for the purpose of securing a review of the rulings, verdict, judgment, sentence, or other proceedings of any court or jury in or by which the defendant has been arraigned, tried, convicted, or sentenced; provided that:

(1) No bail shall be allowed after conviction and prior to sentencing in cases where bail was not available under section 804-3, or where bail was denied or revoked before conviction;

(2) No bail shall be allowed pending appeal of a felony conviction where a sentence of imprisonment has been imposed; and

(3) No bail shall be allowed pending appeal of a conviction for a violation of section 712-1207, unless the court finds, based on the defendant's record, that the defendant may be admitted to bail subject to the mandatory condition that the person observe geographic restrictions that prohibit the defendant from entering or walking along the public streets or sidewalks of Waikiki or other areas in the State designated by county ordinance pursuant to section 712-1207 during the hours from 6 p.m. to 6 a.m.

Notwithstanding any other provision of law to the contrary, any person who violates these bail restrictions shall have the person's bail revoked after hearing and shall be imprisoned forthwith.

(b) The court shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the court finds:

(1) By clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released; and

(2) That the appeal is not for purpose of delay and raises a substantial question of law or fact likely to result in reversal or an order for a new trial.

If the court makes these findings, the court shall order the release of the person in accordance with section 804-7.1 under the least restrictive conditions required to ensure the defendant's appearance and to protect the public. No defendant entitled to bail, whether bailed or not, shall be subject, without the defendant's written consent, to the operation of any sentence passed upon the defendant, while any proceedings to procure a review of any action of the trial court or jury in the premises are pending and undetermined, except as provided in section 641-14(a) or section 712-1207. [L 1892, c 32, §2; RL 1925, §3979; am L 1925, c 228, §1; RL 1935, §5433; RL 1945, §10734; RL 1955, §256-4; am L 1957, c 282, §8; HRS §709-4; ren L 1972, c 9, pt of §1; am L 1972, c 109, §1(a); am L 1980, c 242, §3; gen ch 1985; am L 1987, c 139, §8; am L 1988, c 141, §61; am L 1989, c 261, §23; am L 1990, c 34, §39; am L 1998, c 149, §3; am L 2000, c 143, §2; am L 2019, c 179, §16]

Cross References

See Const. art. I, §12.

Minors, see §571-32(f).

Rules of Court

Proceedings following arrest, see HRPP rule 5(a).

Bail; bond, see HRPP rule 46.

Release pending appeal, see HRAP rule 9.

Law Journals and Reviews

The Protection of Individual Rights Under Hawai‘i's Constitution. 14 UH L. Rev. 311 (1992).

Case Notes

Not applicable to habeas corpus after conviction. 18 H. 473 (1907).

Where justified by facts and circumstances, delay in releasing person on bail is permissible. 61 H. 291, 602 P.2d 933 (1979).

One arrested for a petty misdemeanor or misdemeanor has not an absolute right to immediate release but a right to release without unnecessary delay upon payment of bail. 62 H. 79, 611 P.2d 130 (1980).

Provision denying bail pending appeal to convicted felon sentenced to imprisonment was constitutional. 66 H. 82, 657 P.2d 464 (1983).

Defendant did not satisfy requirements for release on bail. 69 H. 509, 750 P.2d 78 (1988).

Accused misdemeanant, petty misdemeanant, or law violator on bail is entitled to bail as a matter of right after conviction and pending appellate review; requirements of paragraphs (1) and (2) apply only to convicted felons. 74 H. 343, 845 P.2d 547 (1993).

Circuit court did not have jurisdiction to issue a bench warrant based upon the purported violation of a condition of probation, nor could the court revoke defendant's probation on that basis; when a convicted defendant is released on bail pending appeal, the circuit court is temporarily without jurisdiction under the probationary sentence that is the subject of the defendant's appeal. 79 H. 194, 900 P.2d 770 (1995).

Four conditions must be met for person convicted of criminal offense to qualify for release on bail pending appeal. 86 H. 1, 946 P.2d 955 (1997).

Defendant, as a petty misdemeanant on bail after conviction, was entitled to a continuance of bail as a matter of right pending appellate review pursuant to this section, and during this time, the trial court was without jurisdiction to execute defendant’s probationary sentence; thus, the family court erred by denying defendant a stay of defendant’s petty misdemeanor sentence pending appeal. 126 H. 494, 273 P.3d 1180 (2012).