State v. Vaimili.

***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Electronically Filed
Supreme Court
SCWC-12-0000034
30-OCT-2013
08:59 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

STATE OF HAWAI#I, Respondent/Plaintiff-Appellee,

vs.

JOSEPH VAIMILI, Respondent/Defendant-Appellee,

and

FREEDOM BAIL BONDS, Petitioner/Surety-Appellant.

SCWC-12-0000034

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000034; CR. NO. 09-1-0410)

October 30, 2013

RECKTENWALD, C.J., NAKAYAMA, ACOBA, McKENNA, AND POLLACK, JJ.

OPINION BY ACOBA, J.

We hold that the Circuit Court of the First Circuit

(the court)1 was right in denying the Motion for Relief from

Forfeiture of Bail Bond filed on November 2, 2011 (November 2

1
The Honorable Randal K.O. Lee presided.
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Motion for Relief) by Petitioner/Surety-Appellant Freedom Bail

Bonds (Petitioner). In doing so we conclude that (1) the

November 2 Motion for Relief could not be brought under Hawai#i

Rules of Civil Procedure (HRCP) Rule 60(b)2 because pursuant to

HRCP Rule 81(a)(8),3 the rules of civil procedure do not apply to

bond forfeiture proceedings, (2) the statement in Hawai#i Revised

Statutes (HRS) § 804-14,4 that a surety may recover its bond at

any time by surrendering the defendant is qualified by HRS § 804-

51,5 which provides that once the court enters a judgment of

forfeiture a surety is entitled to relief only by filing a motion

within thirty days demonstrating good cause for setting the

judgment of forfeiture aside, (3) the November 2 Motion for

Relief was not filed within the thirty-day time limit and thus

was untimely, and (4) under the terms of HRS § 804-51, once the

2
HRCP Rule 60(b) is reproduced infra.

3
HRCP Rule 81(a) states, in relevant part:

(a) To What Proceedings Not Applicable. Except as
expressly otherwise provided in this Rule 81 or another rule
of court, these rules shall not apply to the following
proceedings . . . in any circuit court:
. . . .
(8) Proceedings for the forfeiture of bonds under
[HRS] section 709-51, as the same may be renumbered;
. . . .

(Emphases added.) (Note: the State Legislature recodified HRS § 709-51 as HRS
§ 804-51 effective January 1, 1973. 1972 Haw. Sess. Laws 139.).

4
HRS § 804-14 states, “[t]hose who may have become bail for anyone,
may at any time discharge themselves, by surrendering him to the custody of
any sheriff or chief of police or his authorized subordinate.”

5
HRS § 804-51 is reproduced infra.

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court denies a motion to set aside the judgment, the court is not

required to file a separate judgment under HRCP Rule 58.6

Therefore, for the reasons stated herein, we affirm the

May 23, 2013 judgment of the Intermediate Court of Appeals (ICA)

filed pursuant to its April 26, 2013 Memorandum Opinion,7 that

affirmed the December 13, 2011 “Findings of Fact [(findings)],

Conclusions of Law [(conclusions)], And Order” that denied

Petitioner’s November 2 Motion For Relief of the court, entered

on December 13, 2011. (December 2011 Order).

I.

A.

On March 23, 2009, Defendant Joseph Vaimili (Vaimili)

was charged with Kidnapping, Terroristic Threatening in the First

Degree, Promoting Prostitution in the First Degree, and Carrying

or Use of a Firearm in the Commission of a Separate Felony. Bail

6
HRCP Rule 58 provides as follows:

Rule 58 Entry of Judgment
Unless the court otherwise directs and subject to the
provisions of Rule 54 of these rules and Rule 23 of the
Rules of the Circuit Courts, the prevailing party shall
prepare and submit a proposed judgment. The filing of the
judgment in the office of the clerk constitutes the entry of
the judgment; and the judgment is not effective before such
entry. The entry of the judgment shall not be delayed for
the taxing of costs. Every judgment shall be set forth on a
separate document.

(Emphasis added.)

7
The Memo. Op. was filed by Chief Judge Craig H. Nakamura and
Associate Judges Daniel R. Foley and Alexa D.M. Fujise.

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was set at $250,000. Petitioner posted bond for Vaimili on July

23, 2009, pursuant to HRS § 804-3 (2008).8 Vaimili was present

for jury selection on June 21, 2010, however, he failed to appear

in court on June 23, 2010. The trial was continued to June 28,

2010, to allow defense counsel the opportunity to locate Vaimili.

On June 28, 2010, a Judgment and Order of Forfeiture of

Bail Bond was filed. The court continued the trial to July 19,

2010 to allow defense counsel another opportunity to secure

Vaimili’s presence for trial. Vaimili again failed to appear for

trial on July 19, 2010, and Petitioner was unable to locate or

contact Vaimili.

B.

Petitioner filed its first motion, a Motion to Set

Aside Judgment and Order for Forfeiture of Bail Bond on July 27,

2010 (July 27 Motion to Set Aside). At the time of filing,

Vaimili’s whereabouts were still unknown. At the August 9, 2010

hearing to address the July 27 Motion to Set Aside, Petitioner

stated it was unable to locate and to surrender Vaimili within

the “thirty-day search period,” and had no reason for Vaimili’s

failure to appear at trial.9 The court denied Petitioner’s July

8
HRS § 804-3(b) states, in relevant part, “[a]ny person charged
with a criminal offense shall be bailable by sufficient sureties; provided
that bail may be denied where the charge is for a serious crime . . . .”

9
At the forfeiture hearing, Petitioner stated that: (1) it had no
contact with Vaimili and was unaware of Vaimili’s whereabouts; (2) it was
unable to locate and surrender Vaimili prior to the expiration of the thirty

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27 Motion to Set Aside and refused to enlarge10 the thirty-day

search period. (Citing State v. Camara, 81 Hawai#i 324, 330

(1996).) On August 16, 2010, the court filed its Findings of

Fact, Conclusions of Law, and Order Denying [Petitioner’s

(first)] Motion to set Aside Judgment and Order of Forfeiture of

Bail Bond (August 2010 Order).

Petitioner filed its Notice of Appeal to the ICA on

September 16, 2010, thirty-one days after the court filed its

August 2010 Order. The ICA dismissed the appeal for lack of

appellate jurisdiction because Petitioner’s Notice of Appeal was

not filed within the thirty-day time period required by Hawai#i

Rules of Appellate Procedure (HRAP) Rule 4(a)(1) (2010). State

v. Vaimili (Vaimili I), No. CAAP-10-0000017, 2010 WL 5497660, at

*1 (Haw. App. Dec. 30, 2010)(unpublished order).

C.

On June 27, 2011 Petitioner filed its second motion, a

Motion for Relief from Forfeiture of Bail Bond, pursuant to Rule

7 and 60(b) of the HRCP (June 27 Motion for Relief).11 HRCP Rule

60(b) states, in relevant part that:

day search period; (3) it had no satisfactory reason for Vaimili’s failure to
appear at trial when requested; and (4) it could not assure the court that
Vaimili would be located and surrendered prior to the expiration of the thirty
day search period.

10
See HRS § 804-51 quoted infra.

11
HRCP Rule 7, provides that a motion must be in writing.

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[T]he court may relieve a party . . . from a final judgment,
order, or proceeding for the following reasons: (1) mistake,
inadvertence, surprise, or excusable neglect; (2) newly discovered
evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud . . .,
misrepresentation, or other misconduct of an adverse party; (4)
the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is
based has been reversed or otherwise vacated, or it is no longer
equitable that the judgment should have prospective application;
or (6) any other reason justifying relief from the judgment. The
motion shall be made within a reasonable time, and for reasons
(1),(2), and (3) not more than one year after the judgment, order,
or proceeding.

(Emphases added.) Vaimili’s whereabouts were still unknown, and

at the July 5, 2011 hearing regarding Petitioner’s June 27 Motion

for Relief, Petitioner stated that it would continue its efforts

to apprehend Vaimili on the mainland, but could not assure the

court that Vaimili would be located.

The court did not address whether HRCP Rule 60(b) was

applicable to a bond forfeiture case. The court denied

Petitioner’s June 27 Motion for Relief based on Petitioner’s

failure to locate Vaimili within the thirty-day period, under HRS

§ 804-51.12 Petitioner did not appeal the denial of its June 27

Motion for Relief.

D.

Vaimili was arrested and returned to Hawai#i by federal

authorities on October 14, 2011. Petitioner filed its third

motion, a Motion for Relief from Forfeiture of Bail Bond pursuant

to HRCP Rules 7 and 60(b) on November 2, 2011 (November 2 Motion

12
HRS § 804-51 is reproduced infra.

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for Relief). In the November 2 Motion for Relief, Petitioner

asserted that Vaimili had been recaptured due to the efforts of

its agents.13

On December 13, 2013 the court entered the December

2011 Order. The court denied the November 2 Motion for Relief in

its December 2011 order, based on the expiration of the thirty

day period established by HRS § 804-51. See discussion infra.

E.

Petitioner filed its Notice of Appeal on January 10,

2012.

II.

On appeal to the ICA, Petitioner argued that the court

erred when it (1) concluded that HRCP Rule 60(b) did not apply to

bond forfeiture proceedings; and (2) denied its HRCP Rule 60(b)

motion, violating its right to due process. State v. Vaimili

(Vaimili II), No. CAAP-12-0000034, 2013 WL 1789405, *1 (Haw. App.

April 26, 2013). The ICA decided that HRCP Rule 81(a)(8)

expressly states that the HRCP do not apply in bond forfeiture

proceedings. Id. at *2. Further, the ICA ruled that HRS § 804-

51 establishes the exclusive means to seek relief from a judgment

13
Further, Vaimili previously had been ordered to report to the Oahu
Intake Service Center (OISC) to be outfitted with an ankle bracelet for
electronic monitoring, but did not appear. At the hearing on November 22,
2011, Petitioner argued that it was not notified about Vaimili’s failure to
appear at OISC, and if it had been, Petitioner could possibly have had time to
“surrender [Vaimili] to the custody of the Department of Public Safety before
he absconded to the mainland.”

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of forfeiture because the statute prescribes the means for the

challenging party to appeal the motion. Id.

III.

In its Application, Petitioner maintains

(1) “the ICA’s conclusion that HRS § 804-51 is the ‘exclusive

means’ for redress constitutes a grave error of law,” (2) HRS §

804-14 “allow[s] a bail forfeiture to be set aside where the

defendant is apprehended through efforts of the bail agent” and

(3) “a separate ‘judgment’ is required [to be filed] in all civil

proceedings[.]” Respondent did not file a Response to the

Application.

IV.

A.

In connection with the first issue, Petitioner argues

that the ICA’s decision that HRS § 804-51 is the only avenue to

challenge a bond forfeiture proceeding unnecessarily restricts

the court’s ability to grant post-judgment relief and is

inconsistent with the decisions of other state courts and of

federal courts. Those courts, Petitioner contends, recognize

that a bail forfeiture proceeding is a civil proceeding, and that

the judgment is subject to post-judgment review consistent with

any other civil judgment.

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Petitioner cites Camara, 81 Hawai#i at 329 n.7, 915

P.2d at 1230 n.7, in which this court held that bond forfeiture

proceedings are civil proceedings, and are therefore subject to

HRAP Rule 4(a), which governs when appeals are taken in civil

cases. It asserts that the ICA’s decision is inconsistent with

Camara because Camara employs the same rationale as cases that

“specifically recognize that a bail forfeiture proceeding is a

civil proceeding and is subject to the same type of post-judgment

review as any civil judgment.”

Petitioner claims that analogously, in federal court,

bond forfeiture proceedings are not subject to the Federal Rules

of Criminal Procedure (FRCP), but rather the Federal Rules of

Civil Procedure because the civil rules are more consistent with

the civil nature of the action. (Citing United States v.

Vaccaro, 51 F.3d 189 (9th Cir. 1995) and United States v.

Plechner, 577 F.2d 596 (9th Cir. 1978).) Additionally,

Petitioner declares that other jurisdictions recognize the

application of Rule 60(b) post-judgment motions in order to set

aside bail forfeiture judgments.14

14
Petitioner cites United States v. Scott, 2012 U.S. Dist. LEXIS
114470, at *10 (S.D.N.Y. July 13, 2012) (considering a civil procedure Rule
60(b) motion to set aside bail forfeiture judgment, and concluding that
justice did not require bail forfeiture), Swift v. Esdale, 306 So.2d 268 (Ala.
1975) (affirming decision to overturn a forfeiture judgment pursuant to an
Alabama Rules of Civil Procedure (ARCP) Rule 60(b) motion), People v. Caro,
753 P.2d 196 (Colo. 1988) (holding that a judgment of forfeiture could be
vacated pursuant to Colorado Rule of Civil Procedure Rule 60), State v.
Crosby, 2009 Ohio App. LEXIS 4176 (Ohio Ct. App. Sept. 21, 2009) (holding that
Ohio’s remission statute and Civil Rule 60 are cumulative remedies in bond

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B.

As to Petitioner’s first issue, the ICA correctly

concluded that the HRCP do not apply here. Bond forfeiture

proceedings are excluded from the ambit of civil procedure rules

pursuant to HRCP Rule 81(a)(8), which provides that “[e]xcept as

expressly otherwise provided in this Rule 81 or another rule of

court, these rules shall not apply to . . . [p]roceedings for the

forfeiture of bonds[.]” Consequently, HRCP Rule 81(a)(8)

expressly precludes the application of the HRCP in this case.15

Petitioner contends that because Camara applied HRAP

Rule 4(a) to bond forfeiture proceedings, this court recognized

that such proceedings were civil proceedings. However, HRCP Rule

81(f) provides that, “Rule 4(a) of the [HRAP] shall apply to

appeals [] from a circuit court in proceedings listed in

subdivision (a) of this Rule,” i.e., to bond forfeiture

forfeiture proceedings), State ex. Rel. Moore County Bd. Of Educ. v.
Pelletier, 606 S.E.2d 907 (N.C. App. 2005) (recognizing that the court had
“previously utilized our Rules of Civil procedure in reviewing a trial court’s
denial of remission of a bond forfeiture”), and State v. Cortez, 211 S.E.2d
876 (N.C. App. 2011)(unpublished disposition)(holding that North Carolina
Rules of Civil Procedure Rule 60 applies to bond forfeiture).

15
Pursuant to HRCP Rule 81(h), “[i]n any proceeding in the land
court or listed in subdivision (a) of Rule 81 the court may by order direct
that any one or more of these rules, not otherwise applicable to said
proceeding pursuant to this Rule 81, shall be applicable to said proceeding.”
(Emphases added.) Petitioner cited Rule 81(h) in its Reply Brief before the
ICA. However, Petitioner did not raise Rule 81(h) before the court in its
November 2, 2011 Motion for Relief or before this court. Hence, any argument
based on Rule 81(h) may be deemed waived. State v. Moses, 102 Hawai#i 449,
456, 77 P.3d 940, 947 (2003).

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proceedings. Thus, this court’s application of HRAP Rule 4(a) in

Camara is consistent with HRCP Rule 81. However, to reiterate,

HRCP Rule 81(a) provides that the rules of civil procedure do not

apply to bond forfeiture proceedings. Nothing in Camara is

contrary to this express command.

The cases from other jurisdictions cited by Petitioner

are also inapposite, inasmuch as none of those cases interpret an

analogous civil procedure rule. For example, Petitioner relies

on Swift, where a bond forfeiture judgment was reversed pursuant

to an ARCP Rule 60(b) motion. However, in contrast to HRCP Rule

81, relating to the applicability of the HRCP, ARCP Rule 81 does

not exclude bond forfeiture proceedings from civil procedure

rules. Similarly, Petitioner also cites cases from Colorado,

North Carolina, and Ohio, in addition to federal cases. However,

none of those jurisdictions’ rules contain a provision precluding

their application to bond forfeiture proceedings.16 Hence, the

cases cited by Petitioner are not analogous to the HRCP, inasmuch

as HRCP Rule 81(a) explicitly states that the rules of civil

procedure shall not apply in bond forfeiture proceedings.

16
See, e.g., FRCP Rule 81(a) (bond forfeiture proceedings not
included in list of exceptions where rules do not apply); Colorado Rules of
Civil Procedure Rule 81(a) (same); Ohio Rules of Civil Procedure Rule 1
(same); North Carolina Rules of Civil Procedure Rule 1 (stating that the rules
apply to “all actions and proceedings of a civil nature except when a
differing procedure is prescribed by statute”).

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V.

A.

In connection with the second issue, Petitioner

contends that the ICA failed to recognize that under HRS § 804-

14, a surety may “at any time” discharge itself by surrendering

the defendant. It maintains that the statute is clear and that

there is no temporal restriction on the phrase “at any time.”

Petitioner argues that, like HRS § 804-14, FRCP Rule

46(f)17 does not set forth a deadline to recover bail if the

defendant is ultimately apprehended through efforts of the bail

agent. It cites Babb v. United States, 414 F.2d 719, 722 (10th

Cir. 1968), which recognized that FRCP Rule 46(f) does not

contain a time limit for bringing an action to set aside a

forfeiture, but if the application for remission is “inexcusably

delayed” relief may be refused.

Petitioner also relies on Swift, 306 So.2d at 268, in

which the appeal deadline had expired on the original forfeiture,

17
FRCP 46(f) states, in relevant part:

(f) Bail forfeiture.

(1) Declaration. A court must declare the bail forfeited if a
condition of the bond is breached.
(2) Setting Aside. The court may set aside in whole or in part a
bail forfeiture upon any condition the court may impose if:
(A) the surety later surrenders into custody the person
released on the surety’s appearance bond; or
(B) it appears that justice does not require bail
forfeiture.
. . .

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but after the defendant was surrendered, that court set aside the

judgment on a Rule 60(b) motion in reliance on Alabama’s

remission statute,18 which allows that court to discharge bail

bonds at any time. Petitioner likens the Alabama statute to HRS

§ 804-14.

Petitioner explains that its extensive efforts to bring

Vaimili back to Hawai#i merit the discharge of judgment under HRS

§ 804-14. It further asserts that returning the bond once a

defendant is surrendered promotes the public policy of having a

defendant brought to justice, because without the possibility of

recovery, the surety would have no inducement to find and

surrender the defendant.

B.

As to Petitioner’s second issue, the ICA did not err in

18
Code of Alabama § 15-13-139 states:

Remission after final judgment of forfeiture. In forfeiture cases where
the sureties have paid the amount of the forfeiture into the court or in
cases where the forfeiture has been made final or absolute and there is
no further litigation pending on the forfeiture, and the surety locates
the defendant and causes the return of the defendant to the custody of
the court where the bond was forfeited, and if the defendant was
substantially procured by actions of the surety, and the administration
of justice has not been thwarted nor the successful prosecution of the
defendant has been affected, then the court which ordered the
forfeiture, shall have full power and jurisdiction in all proceedings
conducted pursuant to this article and within a period of six months
from the date of issuance of any final forfeiture judgment . . . may, in
the court's discretion, remit the whole of the penalty of the bail . . .
and render a new final judgment against the sureties appearing upon the
bail bond or undertaking. In forfeiture cases, if the judgment has been
paid into the State or Municipal Treasury, the court may issue an order
to the custodian of the treasury to make a refund to the sureties.

(Emphases added.)

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refusing to allow Petitioner to recover his bail bond pursuant to

HRS § 804-14. As an initial matter, Petitioner did not raise HRS

§ 804-14 as a ground for the recovery of its bond in any of its

motions before the court. In its November 2, 2011 Motion for

Relief, Petitioner stated that it sought to have the court “grant

relief from the judgment based on Rule 60(b) of the Hawai#i Rules

of Civil Procedure.” Hence, any argument based on HRS § 804-14

has been waived. Moses, 102 Hawai#i at 456, 77 P.3d at 947.

C.

In any event, pursuant to HRS § 804-51, once the court

forfeits a bail bond, HRS § 804-14 is limited by the “thirty-day

search period,” see Camara, 81 Hawai#i at 331, 916 P.2d at 1232,

contained within HRS § 804-51. To reiterate, once a bond is

forfeited pursuant to HRS § 804-51, a surety has thirty days from

the time it receives notice of forfeiture to set aside the

forfeiture judgment:
Whenever the court, in any criminal cause, forfeits any bond
or recognizance given in a criminal cause, the court shall
immediately enter up judgment in favor of the State . . .
and shall cause execution to issue thereon immediately after
the expiration of thirty days from the date that notice is
given . . . to the surety or sureties on the bond, of the
entry of the judgment in favor of the State, unless before
the expiration of thirty days from the date that notice is
given to the surety or sureties on the bond of the entry of
the judgment in favor of the State, a motion or application
. . . showing good cause why execution should not issue upon
the judgment, is filed with the court. If the motion or
application . . . is sustained, the court shall vacate the
judgment of forfeiture and, if the principal surrenders or
is surrendered pursuant to section 804-14 or section

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804-41,[ 19] return the bond or recognizance to the principal
or surety, whoever shall have given it . . . . If the motion
or application, after a hearing held thereon, is overruled,
execution shall forthwith issue and shall not be stayed
unless the order overruling the motion or application is
appealed from as in the case of a final judgment.

HRS § 804-51 (emphases added). Pursuant to HRS § 804-51, then,

when a bond is forfeited in a criminal case, (1) judgment shall

be entered in favor of the State, (2) the surety is given thirty

days to file a motion showing good cause as to why the judgment

should not be executed, (3) if the motion is sustained, the

judgment shall be vacated, and (4) if the principal surrenders or

is surrendered pursuant to HRS § 804-14, or HRS § 804-41 then the

bond shall be returned to the surety.

The legislative history of HRS § 804-51 indicates that

in 1989, the legislature amended HRS § 804-51 through Act 289.

The report of the Senate Committee on the Judiciary on S.B.

106120 stated that “the present statute allows for a [surety] to

have the bail forfeiture set aside, but only within ten days

after the defendant has failed to appear for court.” S. Stand.

19
HRS § 804-41 provides as follows:

§ 804-41 Discharge of surety

At any time before the breach of the condition of the bond,
the surety may discharge oneself by surrendering the
principal into the hands of any sheriff or the chief of
police or the sheriff's or chief's authorized subordinate.

20
Standing Committee Report No. 857 discussed S.B. 1061. The House
Judiciary Committee inserted the language of S.B. 1061 into S.B. 740, which
was adopted as Act 289. See H. Stand. Comm. Rep. No. 1285, in 1989 House
Journal at 1318.

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Comm. Rep. No. 857, in 1989 Senate Journal at 1127-28. Thus, the

legislature understood that the only means of setting aside a

forfeiture was through a timely motion. However, the ten day

time limit was inadequate because sureties were not informed

within ten days of the defendant’s failure to appear. Id.

Act 289 “change[d the] present law by requiring that

the courts give written notice to the surety,” and “allow[ed] a

[surety] thirty days, instead of the [then] present ten [days] to

object to the forfeiture of a bail bond.” Id. Hence, the

legislative history of Act 289 seemingly means that the

legislature understood that a motion brought within thirty days

was the exclusive means of recovering a forfeited bail bond.

In Camara, this court interpreted the legislative

history of Act 289 to HRS § 804-51 as “demonstrating the

legislature’s intent to allow the surety the opportunity to

locate the principal before execution of the judgment of

forfeiture actually occurs.” 81 Hawai#i at 331, 916 P.2d at

1232. Thus, “if the principal surrenders or is surrendered

within the thirty-day search period, the surety would be entitled

to return of the bond.” Id.

Also, execution of the judgment “shall issue forthwith

upon the expiration of thirty days unless the principal or surety

files a motion showing good cause why execution should not issue

within the thirty-day period.” Id. at 329, 916 P.2d at 1230

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(emphasis in original). This court further explained that a

defendant may show good cause as to why execution should not

issue by, inter alia, surrendering the defendant “prior to the

expiration of the thirty-day search period.”21 Id. at 330, 916

P.2d at 1231. Hence, as explained by Camara, absent good cause

for why execution of the bond should not issue22 a surety has a

thirty-day window under HRS § 804-51 to surrender the defendant

(i.e., the “thirty-day search period”). Id. at 331, 916 P.2d at

1232.

In State v. Ranger Ins. Co. ex rel James Lindblad,

Inc., 83 Hawai#i 118, 925 P.2d 288 (1996)23 this court held that

the failure to locate the defendant within the “thirty-day search

period” and to file a motion within the “thirty-day window”

resulted in the forfeiture of a bail bond. In Ranger, the trial

court filed a forfeiture judgment on March 5, 1991, and the

surety received notice of the judgment on March 7. 83 Hawai#i at

21
Camara also held that a surety could establish good cause by
showing that “uncontrollable circumstances prevented appearance” by the
defendant. Id. at 330, 916 P.2d at 1231. This is not applicable in this case
because Petitioner has not made this assertion.

22
In determining whether good cause existed, it should be noted that
“‘the primary purpose of bail in a criminal case is not to punish a defendant
or surety, nor to increase the revenue of the State, but rather to honor the
presumption of innocence,’ by allowing ‘a defendant to prepare his or her
case, and to ensure the defendant’s presence in the pending proceeding.’”
Diaz III, 128 Hawai#i at 224, 286 P.3d at 833 (quoting Camara, 81 Hawai#i at
330, 916 P.2d at 1231).

23
Ranger was not cited by either party. However, the court did cite
Ranger in the Conclusions of Law in its December 2011 Order.

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120, 925 P.2d at 290. On April 5, 1991, the surety filed a

timely HRS § 804-51 motion, and the trial court allowed the

surety an additional forty-two days to locate the defendant. Id.

Following the expiration of the forty-two days, on May 17, 1991

the court orally denied the HRS § 804-51 motion. Id.

Months later, in January 1992, the defendant was

apprehended by law enforcement authorities. Id. The surety then

filed a “bail bond surrender,” apparently pursuant to HRS § 804-

14, on February 20, 1992. Id. Nevertheless, the trial court

filed an order denying the HRS § 804-51 motion on February 20,

1992.24 Id. Subsequently, the surety brought a second motion to

vacate the forfeiture judgment on March 12, 1992. Id. The trial

court denied the motion without a hearing, because it “‘did not

provide a legal basis for the relief requested.’”

This court affirmed the court’s order denying the

surety’s first HRS § 804-51 motion. It was held that “the

[s]urety’s HRS § 804-51 motion failed to make the requisite

showing of “good cause why execution should not issue upon the

forfeiture judgment.” Id. Consequently, under Ranger, absent

good cause a surety’s failure to surrender the defendant within

24
Seemingly, in Ranger, the court’s Feburary 20, 1992 order was a
confirmation of its May 17, 1991 oral ruling. 83 Hawai#i at 121, 925 P.2d at
290. The trial court in Ranger apparently did not issue a separate ruling
discussing the bail bond surrender filed on Feburary 20, 1992. Id.

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the thirty-day search period provided by HRS § 804-51 mandates

forfeiture of the bond.

This court also affirmed the court’s denial of the

surety’s second motion. Ranger explained that, “HRS § 804-51

permits the filing neither of a second motion seeking to show

‘good cause why execution should not issue’ nor any motion after

the closing of the thirty-day window.” 83 Hawai#i at 124 n.5,

925 P.2d at 294 n.5 (emphases in original). Hence, “[t]he

[s]urety’s sole recourse from the [denial of the motion to set

aside] . . . [is] by way of appeal [to] this court.” Id.

Thus, in the instant case, Petitioner’s July 27 Motion,

its first motion to set aside, constituted its HRS § 804-51

motion. However, the court denied that motion. But,

Petitioner’s appeal from the court’s denial of its motion was

untimely. Consequently, Petitioner had no further recourse under

HRS § 804-51. Id.

D.

An in pari materia analysis also supports the foregoing

conclusion. “[L]aws in pari materia, or upon the same subject

matter, shall be construed with reference to each other. What is

clear in one statute may be called upon in aid to explain what is

doubtful in another.” State v. Kamana#o, 118 Hawai#i 210, 218,

188 P.3d 724, 732 (2008) (internal quotation marks omitted).

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Here, HRS § 804-14 and HRS § 804-51 both pertain to recovery of a

surety’s bail bond.

To reiterate, pursuant to HRS § 804-1425 sureties may

“discharge26 themselves,” i.e., extinguish the legal duty owed

regarding the defendant, by surrendering him or her to law

enforcement. On the other hand, HRS § 804-51 pertains to

recovery of a bail bond once the judgment of forfeiture has been

entered. As explained supra, pursuant to HRS § 804-51, after the

court forfeits a bail bond, sureties are allowed thirty days to

file a motion showing good cause as to why the forfeiture

judgment should be vacated. When the two statutes are “construed

with reference to each other,” Kamana#o, 118 Hawai#i at 218, 188

P.3d at 732, it is apparent that HRS § 804-14 applies generally

except when the bond has been forfeited. In that event, HRS §

804-51 is applicable.

HRS § 804-51 thus controls in situations where a

judgment of forfeiture has been entered. This resolves the

question of whether the general allowance for surrender of a

principle contained in HRS § 804-14 applies to Petitioner.

Because HRS § 804-51 governs situations in which a judgment of

25
As stated before, HRS § 804-14 provides that “[t]hose who may have
become bail for anyone [sic], may at any time discharge themselves, by
surrendering him to the custody of . . . [law enforcement].”

26
“Discharge” is defined as, inter alia, “any method by which a
legal duty is extinguished; especially the payment of a debt or satisfaction
of some other obligation.” Black’s Law Dictionary 530 (9th ed. 2009).

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forfeiture has been entered, and such a judgment was entered

against Petitioner, HRS §804-51 and not HRS § 804-14 applies to

recovery of the bail bond by the Petitioner. Therefore,

Petitioner cannot recover its bond under the provisions of HRS §

804-14, but only under the conditions set forth in HRS § 804-51.

E.

Petitioner asserts that HRS § 804-14 should apply

because allowing the surety an unlimited time period to recover

its bond provides the surety an incentive to recapture a fleeing

defendant. The accuracy of this contention aside, any argument

that the thirty-day time period should have been extended to give

Petitioner more time to recapture Vaimili should have been raised

on appeal from the court’s denial of Petitioner’s July 27 Motion

to Set Aside. See Ranger, 83 Hawai#i at 124 n.5, 925 P.2d at 294

n.5 (holding that a surety’s only recourse from a the denial of a

motion to set aside is an appeal). In failing to file a timely

appeal, see Vaimili I, 2010 WL 5497660, at *1, Petitioner waived

these arguments and it is not necessary to discuss them here.

VI.

A.

In connection with the third issue, Petitioner

maintains that a bail forfeiture judgment is a civil judgment

that must comply with the same level of formality as any other

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civil judgment. Specifically, it asserts that because the court

in Camara, 81 Hawai#i at 329, 916 P.2d at 1230, held that a

judgment in a bail forfeiture proceeding is a judgment in a civil

case, there must be a separate judgment that complies with the

requirements of Jenkins v. Cades Shutte, 76 Hawai#i 115, 119, 860

P.2d 1334, 1338 (1994). According to Petitioner, the court

failed to enter a separate judgment that specifically identified

the party or parties for and against whom the judgment was

entered and the claims for which judgment was entered, and

neglected to dismiss claims not specifically identified.

Further, Petitioner apparently asserts that once the

court filed a “final judgment,” it would then be allowed to file

a “renewed motion to set aside” pursuant to Diaz III. Petitioner

maintains that in Diaz III, this court held that a “renewed

motion to set aside” was timely “where it was filed over six

years after the original Notice of Entry of Judgment but within

30 days from the notice of the entry of a Final Judgment.”

B.

As previously noted, HRS § 804-51 plainly requires the

court to issue a judgment “immediately” once the court “forfeits

any bond.” The surety is then given thirty days to move to stay

the execution of that judgment. If the motion to stay is denied,

“execution shall forthwith issue.” Id. Hence, nothing in HRS §

804-51 permits the filing of a second judgment. Instead, the

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initial judgment becomes effective once the deadline to file a

motion to stay the execution of the judgment expires. In the

instant case, on June 28, 2010 the court filed a forfeiture

judgment as required by HRS § 804-51. That judgment was accorded

res judicata effect on December 30, 2010, when the ICA dismissed

Petitioner’s appeal for lack of appellate jurisdiction. See

Eastern Savings Bank, FSB v. Esteban, 129 Hawai#i 154, 159, 296

P.3d 1062, 1067 (2013) (“According to the doctrine of res

judicata, the judgment of a court of competent jurisdiction is a

bar to a new action in any court between the same parties or

their privies concerning the same subject matter[.]”). No

further motions were permitted under HRS § 804-51. Hence, the

court was not required to enter an additional judgment.

C.

Petitioner cites Jenkins for the proposition that there

must be a separate final judgment “[u]nder the rules applicable

for a civil judgment.” Jenkins interpreted the “separate

document requirement” set forth in HRCP Rule 58. 76 Hawai#i at

119, 869 P.2d at 1339. However, as explained supra, the rules of

civil procedure are inapplicable to bond forfeiture proceedings

such as in the instant case. Hence, Jenkins is inapposite. The

requirements of HRS § 804-51, and not the rules of civil

procedure, are controlling here.

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Diaz III also does not compel a contrary conclusion.

In that case, the defendant initially appealed from the court’s

order denying his first HRS § 804-51 motion to set aside the

forfeiture judgment. See Diaz III, 128 Hawai#i at 221, 286 P.3d

at 830. In State v. Diaz (Diaz), No. 28539, 2009 WL 3290249, at

*1 (App. Oct. 13, 2009), the ICA held that it did not have

jurisdiction over Petitioner’s appeal because the record on

appeal did not contain the original forfeiture judgment filed

under HRS § 804-51.27 On remand, the defendant filed a second

motion to set aside, and in light of the ICA’s holding, “also

asked the district court to enter a [second] judgment of

forfeiture.”28 See State v. Diaz (Diaz II), No. 30324, 2012 WL

1525032, at *3. The district court denied the second HRS § 804-

51 motion, but “granted [the defendant’s] request for entry of

bail forfeiture judgment.” Diaz III, 128 Hawai#i at 221, 286

P.3d 830.

The defendant then appealed the denial of the second

HRS § 804-51 motion. The ICA held that “under the peculiar

27
The first forfeiture judgment apparently did exist and was a part
of the record on appeal in the second appeal. Diaz III, 128 Hawai#i at 221,
286 P.3d at 830.

28
Thus, contrary to Petitioner’s assertion, the second judgment in
Diaz III was not characterized as a “final judgment.” Instead, both judgments
were “bail forfeiture judgments.” See Diaz III, 128 Hawai#i at 218, 222, 286
P.3d at 827, 831.

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circumstances of this case” the second motion was timely because

it was filed before the second entry of judgment. Diaz II, 2012

WL 1525032, at *3. This court affirmed the ICA in this regard.

Diaz III, 128 Hawai#i at 224, 286 P.3d 833.

Nothing in Diaz III provides that a defendant or

surety is entitled to a second final judgment that renders a

second motion to set aside timely. Such a requirement would

allow defendants and sureties to circumvent the thirty-day time

limit in HRS § 804-51. The filing of a second final judgment in

Diaz III was the result of “the peculiar circumstances” of the

case, i.e., the rejection of the defendant’s first appeal because

the first judgment was not included in the record. See Diaz II,

2012 WL 1525032, at *3. In the instant case, Petitioner’s first

appeal was rejected not because of the absence of a forfeiture

judgment, but because it was untimely. See Vaimili I, 2010 WL

5497660, at *1. Hence, there was no reason for the court to

enter a “second judgment” here.

In sum, pursuant to HRS § 804-51, a court is only

required to enter a judgment of forfeiture once -- at the time

the court forfeits a bond. It is undisputed that this

requirement was followed here. Hence, Petitioner’s argument that

the court “failed to enter a separate judgment that complied with

the requirements of Jenkins” is incorrect.

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VII.

Based on the foregoing, the December 13, 2011 Order of

the court and the May 23, 2013 judgment of the ICA are affirmed.

Matthew N. Padgett, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Brian R. Vincent,
for respondent /s/ Simeon R. Acoba, Jr.

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

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