§853-1 Deferred acceptance of guilty plea or nolo contendere plea; discharge and dismissal, expungement of records. (a) Upon proper motion as provided by this chapter:

(1) When a defendant voluntarily pleads guilty or nolo contendere, prior to commencement of trial, to a felony, misdemeanor, or petty misdemeanor;

(2) It appears to the court that the defendant is not likely again to engage in a criminal course of conduct; and

(3) The ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law,

the court, without accepting the plea of nolo contendere or entering a judgment of guilt and with the consent of the defendant and after considering the recommendations, if any, of the prosecutor, may defer further proceedings.

(b) The proceedings may be deferred upon any of the conditions specified by section 706-624. As a further condition, the court shall impose a compensation fee pursuant to section 351-62.6 and a probation services fee pursuant to section 706-648 upon every defendant who has entered a plea of guilty or nolo contendere to a petty misdemeanor, misdemeanor, or felony; provided that the court shall waive the imposition of a compensation or probation services fee, if it finds that the defendant is unable to pay the compensation or probation services fee. The court may defer the proceedings for a period of time as the court shall direct but in no case to exceed the maximum sentence allowable; provided that, if the defendant has entered a plea of guilty or nolo contendere to a petty misdemeanor, the court may defer the proceedings for a period not to exceed one year. The defendant may be subject to bail or recognizance at the court's discretion during the period during which the proceedings are deferred.

(c) Upon the defendant's completion of the period designated by the court and in compliance with the terms and conditions established, the court shall discharge the defendant and dismiss the charge against the defendant.

(d) Discharge of the defendant and dismissal of the charge against the defendant under this section shall be without adjudication of guilt, shall eliminate any civil admission of guilt, and is not a conviction.

(e) Upon discharge of the defendant and dismissal of the charge against the defendant under this section, the defendant may apply for expungement not less than one year following discharge, pursuant to section 831-3.2. [L 1976, c 154, pt of §2; am L 1979, c 147, §1 and c 155, §1; am L 1980, c 232, §42; am L 1983, c 290, §2(1), (2); gen ch 1985; am L 1988, c 184, §1; am L 2000, c 115, §3; am L 2012, c 295, §2]

Note

The 2012 amendment shall not apply to any defendant granted a deferred acceptance of guilty or no contest plea before July 9, 2012. L 2012, c 295, §3.

Case Notes

Deferred acceptance of guilty plea constitutes a form of punishment under the Assimilated Crimes Act. 866 F.2d 315 (1989).

Procedure (under earlier program) does not impose an impermissible burden on exercise of right of trial by jury. 58 H. 304, 568 P.2d 1194 (1977).

Under procedures established before enactment of this section, it was held that a motion for DAG plea was not seasonably made after a plea of not guilty and a trial resulting in a finding of guilt. 58 H. 412, 570 P.2d 1323 (1977).

Denial of motion for deferred acceptance of guilty plea is within discretion of trial court. 59 H. 562, 584 P.2d 126 (1978).

Deferred acceptance of guilty plea is not a conviction and may not be used for impeachment purposes. 62 H. 259, 614 P.2d 386 (1980).

Did not limit trial court's power to accept nolo contendere plea to cases where plea is entered before trial begins. 66 H. 364, 662 P.2d 212 (1983).

Deferred acceptance of guilty and no contest pleas are not appealable. 69 H. 438, 746 P.2d 568 (1987).

The tolling provisions under §706-627 apply to deferral periods pursuant to a deferred acceptance of guilty plea. 92 H. 322, 991 P.2d 832 (2000).

A conditional plea under HRPP rule 11(a)(2) is inconsistent with the granting of a deferred acceptance of guilty plea pursuant to this chapter; defendant's appeal from trial court's order granting motion for deferred plea did not provide a jurisdictional basis for review of an adverse pretrial suppression order purportedly preserved by the trial court's allowance of defendant's conditional plea. 95 H. 309, 22 P.3d 588 (2001).

Where defendant entered no contest plea after trial commenced, pursuant to subsection (a)(1), defendant was not eligible for plea deferral; only available remedy to defendant was to permit defendant to withdraw plea. 95 H. 398, 23 P.3d 733 (2001).

In connection with the conditions from §706-624 that are incorporated by reference in this section, the "provision" in §706-624(3) that requires a defendant who is granted probation to be given a written copy of the conditions, must necessarily apply to a defendant granted a deferred acceptance of guilty plea, who must adhere to such similar conditions. 118 H. 15, 185 P.3d 200 (2008).

Where State did not file a written motion to revoke defendant's deferred acceptance of guilty plea, the probationary period was not tolled; thus, as the deferment period had expired two months earlier, trial court lacked jurisdiction to revoke defendant's deferred acceptance of guilty plea. 118 H. 15, 185 P.3d 200 (2008).

Where the State promised as a condition of the plea agreement to "take no position" on petitioner's deferred acceptance of no contest plea (DANCP) motion but prosecutor's comments directly addressed the issues pertinent to the motion, the terms of the agreement were not fulfilled and petitioner was denied petitioner's due process rights; because this contravention of petitioner's DANCP plea agreement violated petitioner's fundamental rights and resulted in manifest injustice, this was plain error under HRPP rule 52, the error was not harmless beyond a reasonable doubt and sentencing by another judge was the proper remedy. 122 H. 92, 223 P.3d 157 (2010).

Granting or denial of motion for deferred acceptance of guilty plea is within discretion of trial court and will not be disturbed unless there has been manifest abuse. 1 H. App. 157, 616 P.2d 226 (1980).

This chapter does not prohibit trial court's inherent power to grant or deny deferred acceptance of nolo contendere pleas. 1 H. App. 602, 623 P.2d 892 (1981).

Subsection (a)(1)'s requirement that defendant plead guilty "prior to commencement of trial" means that it be done prior to commencement of first trial; defendant's plea of guilty after first trial and before new trial did not satisfy that requirement. 10 H. App. 31, 859 P.2d 1380 (1993).

In light of §706-624(n), family court was authorized to require defendant to undergo polygraph testing as a reasonable condition of the granting of defendant's deferred acceptance of nolo contendere plea under this section. 92 H. 289 (App.), 990 P.2d 1171 (1999).

Mentioned: 74 H. 75, 837 P.2d 776 (1992); 10 H. App. 148, 861 P.2d 759 (1993).