§706-664 Procedure for imposing extended terms of imprisonment. (1) Hearings to determine the grounds for imposing extended terms of imprisonment may be initiated by the prosecutor or by the court on its own motion. The court shall not impose an extended term unless the ground therefor has been established at a hearing after the conviction of the defendant and written notice of the ground proposed was given to the defendant pursuant to subsection (2). Subject to the provisions of section 706-604, the defendant shall have the right to hear and controvert the evidence against the defendant and to offer evidence upon the issue before a jury; provided that the defendant may waive the right to a jury determination under this subsection, in which case the determination shall be made by the court.

(2) Notice of intention to seek an extended term of imprisonment under section 706-662 shall be given to the defendant within thirty days of the defendant's arraignment. However, the thirty-day period may be waived by the defendant, modified by stipulation of the parties, or extended upon a showing of good cause by the prosecutor. A defendant previously sentenced to an extended term under a prior version of this chapter shall be deemed to have received notice of an intention to seek an extended term of imprisonment.

(3) If the jury, or the court if the defendant has waived the right to a jury determination, finds that the facts necessary for the imposition of an extended term of imprisonment under section 706-662 have been proven beyond a reasonable doubt, the court may impose an indeterminate term of imprisonment as provided in section 706-661. [L 1972, c 9, pt of §1; am L 1986, c 314, §42; gen ch 1992; am L Sp 2007 2d, c 1, §4]

Applicability of Act 1, Second Special Session of 2007

L Sp 2007 2d, c 1, §5 provides:

"SECTION 5. This Act shall apply to all sentencing or resentencing proceedings pending on or commenced after the effective date of this Act [October 31, 2007], whether the offense was committed prior to, on, or after the effective date of this Act [October 31, 2007]. A defendant whose extended term of imprisonment is set aside or invalidated shall be resentenced pursuant to this Act upon request of the prosecutor. This Act shall not entitle a defendant who has previously been sentenced to an extended term to be resentenced pursuant to the procedures set forth in this Act unless the defendant is otherwise legally entitled to be resentenced."

COMMENTARY ON §706-664

This section sets forth the procedure when the court has before it a motion in favor of sentencing the defendant to imprisonment for an extended term. Fairness to the defendant demands that the defendant receive notice of the ground upon which an extended term is proposed and that the hearing focus on this issue. In other respects the hearing will be the same as that provided for in cases involving the possibility of imprisonment within the ordinary limits.

SUPPLEMENTAL COMMENTARY ON §706-664

Act 1, Second Special Session Laws 2007, amended this section and other extended sentencing statutes (§§706-661 and 706-662) to ensure that the procedures used to impose extended terms of imprisonment comply with the requirements of the United States Supreme Court and the Hawaii supreme court. Act 1 required that a jury determine the facts necessary to impose an extended term of imprisonment, unless the defendant waives the right to a jury determination, and that facts necessary to impose an extended term of imprisonment are proven beyond a reasonable doubt. The legislature found that Hawaii's current extended sentencing procedure had been deemed unconstitutional because a judge, rather than a jury, was required to find facts, other than those of prior or concurrent convictions, necessary to enhance a defendant's sentence beyond the ordinary or standard term authorized by the jury's verdict. Act 1's amendments conformed the State's enhanced sentencing law to the requirements of the United States Supreme Court and the Hawaii supreme court. Act 1 applied retroactively to sentencing or resentencing proceedings that were pending on or commenced after its effective date [October 31, 2007], whether the offense was committed prior to, on, or after that date. However, the Act did not entitle a defendant who was previously sentenced to an extended term of imprisonment to resentencing pursuant to the procedures set forth in the Act, unless the defendant was otherwise legally entitled to be resentenced. Senate Standing Committee Report No. 7, House Standing Committee Report No. 1.

Case Notes

Question as to proper procedure for making finding of multiple offender raised but not decided. 56 H. 32, 526 P.2d 1200 (1974).

Independent hearing with full procedural due process. 56 H. 628, 548 P.2d 632 (1976).

Notice of hearing may issue from court without help from prosecutor. 60 H. 93, 588 P.2d 412 (1978).

The court may properly initiate extended term hearings, notwithstanding inaction by prosecutor. 60 H. 100, 588 P.2d 409 (1978).

Notice adequate under circumstances. 63 H. 488, 630 P.2d 619 (1981).

The constitutional prohibition against ex post facto measures was not offended by the plain language of Act 1, L Sp 2007 2d, amending §§706-661, 706-662, and this section regarding sentencing or resentencing for extended terms of imprisonment, where it was clear that the new jury provisions did not (1) increase criminal liability for conduct previously innocent, (2) aggravate the degree of defendant's crimes, (3) increase the punishment available at the time defendant committed defendant's crimes, or (4) alter evidentiary standards to defendant's detriment. 117 H. 381, 184 P.3d 133 (2008).

The constitutional prohibition against ex post facto measures was not offended by the retrospective application to defendant of Act 1, L Sp 2007 2d, amending §§706-661, 706-662, and this section, where Act 1 did not punish as a crime an act previously committed which was innocent when done, make more burdensome the punishment for the crime after its commission, nor deprive one charged with the crime of any defense available according to the law when the act was committed. 118 H. 68 (App.), 185 P.3d 816 (2008).