State v. Diaz.Â

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

Electronically Filed
Supreme Court
SCWC-30324
18-OCT-2012
09:06 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

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

vs.

ATMARAMA D. DIAZ, Petitioner/Defendant-Appellant.

NO. SCWC-30324

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(ICA NO. 30324; CR. CASE NOS. 1P104-11530 and 1P105-18336)

October 18, 2012
RECKTENWALD, C.J., NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.

OPINION OF THE COURT BY ACOBA, J.

We hold that the District Court of the First Circuit

(the court)1 erred in denying the November 27, 2009 Second Motion

to Set Aside Bail Forfeiture and For Return of Bail (Second

Motion) filed by Petitioner/Defendant-Appellee Atmarama D. Diaz

(Petitioner) because under the circumstances Petitioner’s

incarceration in California established good cause under Hawai#i

1
The Honorable Gerald H. Kibe presided.
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Revised Statutes (HRS) § 804-51 (Supp. 2009) for his failure to

appear at his August 9, 2004 arraignment, and thus for why the

January 15, 2010 bail forfeiture judgment herein should not be

executed.2 We therefore vacate the May 30, 2012 judgment of the

Intermediate Court of Appeals (ICA) filed pursuant to its April

30, 2012 Summary Disposition Order (SDO), affirming the Order

Denying In Part and Granting in Part Petitioner’s November 27,

2009 Second Motion (Second Order) entered by the court on January

15, 2010. This case is remanded to the court for proceedings

consistent with this opinion.

2
HRS § 804-51 (Supp. 2009) provides as follows:

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
against the principal or principals and surety or sureties
on the bond, jointly and severally, for the full amount of
the penalty thereof, and shall cause execution to issue
thereon immediately after the expiration of thirty days from
the date that notice is given via personal service or
certified mail, return receipt requested, 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 of the principal or
principals, surety or sureties, or any of them, showing good
cause why execution should not issue upon the judgment, is
filed with the court. If the motion or application, after a
hearing held thereon, 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
804–41, return the bond or recognizance to the principal or
surety, whoever shall have given it, less the amount of any
cost, as established at the hearing, incurred by the State
as a result of the nonappearance of the principal or other
event on the basis of which the court forfeited the bond or
recognizance. 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.

(Emphases added.)

2
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

I.

A.

In 2004, Petitioner was on release in an unrelated

criminal proceeding in the circuit court, State v. Diaz, Cr. No.

04-1-0711.3 On June 15, 2004, the circuit court4 amended the

terms and conditions of Petitioner’s pretrial release to allow

him to travel to California in order to meet his obligations in a

pending matter in that state’s courts.5

On July 25, 2004, while traveling to California,

Petitioner was arrested at Honolulu International Airport, for

Promoting a Detrimental Drug in the Third Degree.6 Petitioner’s

arrest led to the drug charge in the instant court proceedings,

Cr. No. 1P104-11530. On the same day he was arrested, Petitioner

posted $1,000 cash bail in the court and was released from

custody. Later that day, Petitioner proceeded to California,

where he was held in custody by California authorities.

3
In response to Petitioner’s request, we take judicial notice of
State v. Diaz, Cr. No. 04-1-0711 pursuant to HRAP Rule 10(e). HRAP Rule
10(e)(2) allows, in part, a party to correct of modify the record on appeal
“[i]f anything material to any party is omitted from the record by error or
accident[.]” In that case, Petitioner was charged with two counts of Promoting
a Dangerous Drug in the First Degree; one count of Promoting a Dangerous Drug
in the Second Degree; one count of Unlawful Use of Drug Paraphernalia; and one
count of Promoting a Dangerous Drug in the Third Degree.

4
The Honorable Richard K. Perkins presided.

5
In oral argument, Respondent/Plaintiff-Appellant State of Hawai#i
(Respondent) indicated it did not object to this court taking judicial notice
of the circuit court’s Order Amending Terms of Defendant Diaz’s Pre-Trial
Release filed on June 15, 2004.

6
In Cr. No. 1P104-11530, Petitioner was charged with one count of
Promoting a Detrimental Drug in the Third Degree in violation of HRS § 712-
1249.

3
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Petitioner was scheduled to be arraigned in this case

on August 9, 2004. However, Petitioner was not present on that

date. The court7 thus filed a notice of entry of bail forfeiture

judgment and order (First Judgment),8 forfeiting the $1,000 bail.

Additionally, it issued a bench warrant for Petitioner’s arrest.

Petitioner was charged with Criminal Contempt of Court, HRS §

710-1077,9 for his failure to appear at the August 9, 2004

arraignment, Cr. No. 1P105-18336. Bail on this charge was set at

$150, which Petitioner subsequently posted.

On December 20, 2005, Petitioner’s counsel (counsel)

appeared in the court, waived Petitioner’s presence, and entered

pleas of not guilty on both charges. At the December 20, 2005

hearing and in Petitioner’s Application, counsel maintained that

Petitioner did not appear at the arraignment because Petitioner

was in custody in California on August 9, 2004.10 Counsel

explained that Petitioner could not be present on December 20,

2005 because, although he was on parole in California, he was

unable to make travel arrangements to return to Hawai#i.

7
The Honorable Clarence Pacarro presided.

8
The First Bail Forfeiture Judgment was a form “Notice of Entry and
Judgment and/or Order.” As noted by the ICA in the instant appeal, see State
v. Diaz, No. 30324, 2012 WL 1525032, at *1 (App. Apr. 30, 2012) (SDO)
(hereinafter, “Diaz II”), the First Judgment was not included in the record of
Petitioner’s first appeal. However, it was included in the record in the
instant appeal.

9
HRS § 710-1077 (1993) states in relevant part that “[a] person
commits the offense of criminal contempt if . . . [t]he person knowingly
disobeys or resists the process, injunction or other mandate of a court[.]

10
Petitioner states in his Application that upon his release from
custody in California, he returned “immediately” to Hawai#i, but Petitioner
did not provide dates of his release or return.

4
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Counsel then raised the issue of Petitioner’s forfeited

$1,000 bail. The court directed Counsel to “submit some kind of

proof of that or do a motion[.]” Counsel then asked, “Just

reinstate the bail?” and the court responded, “Yeah.” Counsel

stated, “We can do that” and the court answered, “Okay.” Counsel

filed the motion requested by the court on October 25, 2006,

following the scheduled trial date of October 24, 2006.

B.

On October 24, 2006, Petitioner appeared before the

court for trial.11 Respondent asked that Petitioner’s trial be

continued because three of Respondent’s witnesses were absent.

The court denied Respondent’s request. Petitioner then orally

moved to dismiss the charges and the court granted Petitioner’s

motion dismissing both charges with prejudice.

Costs of $50 associated with the contempt warrant was

deducted from the $150 bail posted by Petitioner on October 6,

2005 for the contempt charge, and $100 was refunded to

Petitioner. However, Petitioner was informed that the $1000 cash

bail on the drug charge in Cr. No. 1P104-11530 had not been

reinstated by the court and therefore could not be returned to

Petitioner.

11
Trial had been set for January 23, 2006 but was subsequently
continued to April 10, 2006. On April 27, 2006, Petitioner moved to dismiss
the charge as a de minimis infraction. The hearing on Petitioner’s motion to
dismiss was continued several times until October 24, 2006. Petitioner’s
motion to dismiss as a de minimis infraction was heard and denied by the court
on October 24, 2006.

5
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

On October 25, 2006, Petitioner filed a Motion to Set

Aside Bail Forfeiture and Refund Bail as to the $1,000 cash bail.

(First Motion). Attached to the First Motion was the affidavit

of Petitioner’s counsel, declaring, inter alia, that Petitioner

did not appear at the arraignment because Petitioner was

incarcerated in California, he and Petitioner believed the $1,000

bail had been reinstated in the instant case, and there was no

dispute as to why Petitioner failed to appear.12

12
In his declaration, Counsel declared in relevant part as follows:

(2) This case arises from [Petitioner’s] arrest at
the Honolulu International Airport on July 25, 2004, when a
single leaf of marijuana weighing .08 gram was discovered in
his backpack as he passed through an inspection station.
(3) Following [Petitioner’s] arrest herein he posted
cash bail in the amount of $1,000.00 and was allowed to
return to his home in California.
(4) I am informed that on or about January 13, 2005,
a warrant was issued for [Petitioner’s] arrest due to his
failure to appear and for a hearing in case No. 1P104-11520,
and the bail posted by [Petitioner was declared forfeited.
. . .
(5) I am informed that [Petitioner] failed to appear
because at the time he was incarcerated in California in an
unrelated matter.
(6) Subsequently upon providing an explanation for
his failure to appear and posting additional bail in the
amount of $150.00 on a resulting contempt charge,
[Petitioner] was able to have the aforementioned arrest
warrant set aside, and the matter was reinstated to the
Court’s calendar along with the new contempt charge.
(7) At that time both [Petitioner] and I understood
and believed that once it had it had been established that
his failure to appear was not deliberate, and the case was
reinstated, that the bail also was reinstated pending a
resolution of the underlying charges.
. . .
(10) Following the hearing on October 24, 2006, when
I accompanied [Petitioner] to [the court] cashier’s window
to retrieve his bail, we learned, for the first time, that
the original bail had not been reinstated and therefore
could not be returned to him, and we were advised to file a
motion to address that problem.
(11) I am informed and believe that there is no
dispute or controversy as to why [Petitioner] failed to
appear for his earlier court date, that he was not in
contempt of court, and that there is not and never has been
(continued...)

6
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

The court held a hearing on Petitioner’s First Motion

on November 21, 2006. At the end of the hearing, the court

denied this motion. On March 16, 2007, the court filed its

Findings of Fact and Conclusions of Law and Order Denying

Petitioner’s Motion to Set Aside Bail Forfeiture and Refund Bail

(First Order). The court found, inter alia, that Petitioner was

in custody in California at the time of the August 9, 2004

arraignment; subsequent to Petitioner’s release, he appeared for

trial and the court dismissed the drug charge because Respondent

was not prepared to proceed; following his trial, Petitioner

learned that the $1,000 bail he posted had been forfeited; a day

after the scheduled trial, Petitioner filed his First Motion; a

hearing set on the motion for November 15, 2006 was continued so

that the court could obtain clarification regarding the bail

forfeiture policies and procedures of the “fiscal division” of

the judiciary; at the rescheduled hearing on November 22, 2006,

Respondent took “no position” on Petitioner’s motion; and the

court denied the motion at the end of the hearing.13

12
(...continued)
any factual or legal basis for the forfeiture of his bail.
(12) I therefore request in the interests of justice
that the bail forfeiture be set aside and vacated and that
the bail in the amount of $1,000.00 be returned to
[Petitioner].

(Emphases added.)

13
The court entered the following relevant findings:

1. On or about July 25, 2004, [Petitioner was
arrested on a charge of Promoting a Detrimental Drug in the
Third Degree (HRS §712-1249).
2. Upon his arrest, [Petitioner] posted cash bail
(continued...)

7
***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

13
(...continued)
of $1,000.00 and was released from custody on July 25, 2004.
3. [Petitioner’s] initial arraignment was set for
August 9, 2004 in [the court].
4. [Petitioner] failed to appear at his August 9,
2004 arraignment whereupon [the court] ordered (a)
forfeiture of [Petitioner’s] bail of $1,000, and (b)
issuance of a bench warrant for [Petitioner’s] arrest with
new bail set at $150.00.
5. A judgment of bail forfeiture . . . was filed on
August 9, 2004.
6. At the time of his August 9, 2004 arraignment,
[Petitioner] was in custody in California on an unrelated
criminal matter, but [Petitioner] was subsequently released
from custody in California and eventually returned to
Hawai#i.
7. Within thirty (30) days of [the court’s] order
of forfeiture of [Petitioner’s] bail of $1,000.00, said
funds were transferred from the Judiciary’s fiscal account
to the State of Hawaii general fund account.
. . .
9. Upon execution of the bench warrant,
[Petitioner] posted $150.00 bail and was released pending
arraignment in [the court] on December 20, 2005.
. . .
11. At the December 20, 2005 arraignment,
[Petitioner’s counsel] raised with [the court] the issue of
[Petitioner’s] bail of $1,000 forfeited on August 9, 2004.
12. [The court] directed [Petitioner’s counsel] to
file a written motion concerning any request by [Petitioner]
to reinstate said forfeited bail.
. . .
14. On October 24, 2006[,] [Petitioner] and
[Petitioner’s counsel] appeared for trial[.] . . .
. . .
16. [Respondent] then orally moved to continue
[Petitioner’s] trial as certain prosecution witnesses were
not present. [The court] denied [Respondent’s] motion to
continue and granted [Petitioner’s] oral motion to dismiss.
The charge against [Petitioner] was accordingly dismissed
with prejudice on October 24, 2006.
. . .
18. The $50 bench warrant cost was deducted from the
$150.00 in bail posted by [Petitioner] on October 6, 2005,
and the $100.00 balance of [Petitioner’s] bail was refunded
to [Petitioner] on October 24, 2006.
19. On October 25, 2006, [Petitioner] filed the
instant “Motion to Set Aside Bail Forfeiture and Refund
Bail” (“Motion”).
. . .
21. [Petitioner’s] Motion originally came on [sic]
for hearing . . . on November 15, 2006[.] . . .
22. Following a brief discussion, the court
continued the hearing on [Petitioner’s] Motion to November
22, 2006 to obtain clarification regarding the policies and
procedures of the fiscal division of the State Judiciary
regarding bail forfeitures.
. . .
(continued...)

8
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

The court concluded, inter alia, that Petitioner

violated the general conditions of his release by failing to

obtain permission to leave the jurisdiction, as required by HRS §

804-7.4;14 Petitioner’s First Motion filed on October 25, 2006

was untimely because Petitioner knew on December 20, 2005 that

his bail was forfeited; and Petitioner’s “mere claims” that he

was incarcerated on August 9, 2004, without further explanation

of the circumstances did not amount to “good cause” to set aside

the First Judgment.15

13
(...continued)
24. [Petitioner’s counsel] argued the Motion on
[Petitioner’s] behalf, and [Respondent] took no position
thereon. Following argument, the court denied
[Petitioner’s] Motion.

(Emphases added.)

14
HRS § 804-7.4 states as follows:

Any person released on bail . . . shall be released subject
to the following conditions:

(1) The person shall not commit a federal, state or local
offense during the period of release;

(2) The person shall appear for all court hearings unless
notified by the person’s attorney that the person’s
appearance is not required; and

(3) The person shall remain in the State of Hawai#i unless
approval is obtained by a court of competent jurisdiction to
leave the jurisdiction of the court.

(Emphasis added.)

15
The court entered the following relevant conclusions:

2. Bail is “conditioned for the appearance of the
defendant at the session of a court.” HRS § 804-1.
3. A defendant who has given bail must “appear promptly
and respond thereto” and, upon failure to do so, default
shall enter and be evidence of the breach of the defendant’s
appearance bond. HRS § 804-17.
4. The court was mandated on August 9, 2004 to enter
default based on [Petitioner’s] failure to appear.
(continued...)

9
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

C.

On May 3, 2007, Petitioner filed a Motion for Extension

of Time to File Notice of Appeal (Motion to Extend). In his

Motion to Extend, Petitioner claimed that he did not receive a

copy of the First Order until April 23, 2007. On May 10, 2007,

the court granted Petitioner’s Motion to Extend from April 15,

2007 to June 8, 2007. On May 11, 2007, Petitioner filed a Notice

of Appeal from the First Order.

The record in Petitioner’s appeal of the First Order

did not contain any documents dated before April 27, 2006. On

15
(...continued)
5. The general conditions of release on bail are that the
defendant: (1) shall not commit a federal, state, or local
offense during his or her period of release; (2) shall
appeal for all court hearing unless notified by the person’s
attorney that the person’s appearance is not required; and
(3) shall remain in the State of Hawaii unless approval is
obtained from a court of competent jurisdiction to leave the
jurisdiction of the court. See HRS § 804-7.4.
6. On August 9, 2004, [Petitioner] violated a general
condition of bail by not appearing for his scheduled court
proceeding (there is no showing that the court at any time
gave [Petitioner] permission to leave the jurisdiction of
the court).
7. Under HRS § 804-51, execution upon forfeited bail may
be forestalled by written motion submitted to the court
within thirty (30) days notice of a judgment of forfeiture.
See State v. Camara, 81 Hawai#i 324, 916 P2d 1225 (1996).
8. [Petitioner] having been aware as of at least December
20, 2005 of the forfeiture of [Petitioner’s] $1,000 bail on
August 9, 2004, the Motion is untimely.
9. The court has further considered the merits of
[Petitioner’s] motion and concluded that [Petitioner] has
not met his burden of establishing good cause as to why the
execution upon the judgment of bail forfeiture should not be
allowed to stand.
10. Defendant’s mere claims that (1) he was incarcerated
in the State of California on August 9, 2004, without
further explanation of the circumstances pertaining thereto,
and (2) the instant charge has now been dismissed do not,
ipso facto, constitute sufficient good cause for granting
[Petitioner’s] motion.

(Emphases added.)

10
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

October 13, 2009, the ICA dismissed Petitioner’s appeal of the

First Order for lack of appellate jurisdiction because, the

record on appeal did not contain the First Judgment. In its

order of dismissal, the ICA stated in part, that a bail

forfeiture judgment was a prerequisite to a motion to set aside a

bail forfeiture:

[U]nder HRS Section 804-51, a motion to set aside a bail-
forfeiture judgment is authorized only in situations where
the trial court has entered a bail-forfeiture judgment.
Absent a bail-forfeiture judgment, HRS Section 804-51 (Supp.
2008) does not authorize a motion to set aside a bail-
forfeiture judgment. Although the district court, in its
FOF/COL/Order, refers to an August 9, 2004 district court
judgment in the form of a “disposition slip” requiring the
forfeiture of his bail, the record on appeal does not
contain any such judgment.

State v. Diaz, 2009 WL 3290249, No. 28539, at *1 (App. Oct. 13,

2009) (Diaz I) (emphases added).

II.

A.

On November 27, 2009, Petitioner filed his Second

Motion. Attached to the Second Motion was the affidavit of

Petitioner’s counsel, referring to the findings and conclusions

in the First Order.16

16
In his declaration, Counsel declared in relevant part as follows:

(1) I am the principal attorney for [Petitioner] in
the above-entitled matter.
(2) In its Findings of Fact and Conclusions of law
filed herein on March 16, 2007 denying [Petitioner’s] Motion
to Set Aside Bail Forfeiture and Refund Bail filed on
October 25, 2006, . . . the Court, in relevant part,
determined:
(a) A judgment of bail forfeiture in the form
of a District Court disposition slip was filed on
August 9, 2004 [Findings of Fact, at ¶5];
(b) At the time of his August 9, 2004
arraignment, [Petitioner] was in custody in California
(continued...)

11
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Respondent filed a memorandum in opposition to

Petitioner’s Second Motion, arguing (1) Petitioner had already

filed a motion to set aside, (2) the First Motion was

“exceptionally untimely,” (3) the ICA had already ruled it lacked

jurisdiction over the First Motion in the absence of a written

bail forfeiture judgment; and (4) assuming further hearings were

necessary, such hearings should be set before the court.

16
(...continued)
on an unrelated criminal matter, but [Petitioner] was
subsequently released from custody in California and
eventually returned to Hawaii [Findings of Fact, at
¶6];
(c) Within thirty (30) days of [the court’s]
order of forfeiture of [Petitioner’s] bail of
$1,000.00, said funds were transferred from the
Judiciary’s fiscal account to the State of Hawaii
general fund account [Findings of Fact, at ¶7]
(d) After entering a plea of not guilty on
December 20, 2005 [Petitioner] and [Petitioner’s
counsel] appeared for trial before the court] on
October 24, 2006 at which time the charge against him
was dismissed [Findings of Fact, at ¶¶10, 14, and 16];
(e) Pursuant to the instruction of [the court]
on October 25, 2006[,] [Petitioner] moved to set aside
the bail forfeiture and refund his bail [Findings of
Fact, at ¶11 and 19]
(f) [Petitioner’s counsel] argued the motion
to set aside the bail forfeiture and refund of bail on
[Petitioner’s] behalf, and [Respondent] took no
position thereon [Findings of Fact, at ¶24]
(3) On [Petitioner’s] appeal from the denial of
[First Motion] . . . the [ICA] determined, in relevant part,
that a “bail forfeiture judgment,” which the court is
required to enter before the forfeiture can be executed
pursuant to [HRS] §804-51, was never entered in this matter,
and accordingly[,] [Petitioner’s] appeal was dismissed for
lack of an appealable order or judgment.
(4) Without entry of a bail-forfeiture judgment, the
execution of [the court’s] order of forfeiture, i.e., “the
transfer of said funds from the Judiciary’s fiscal account
to the State of Hawaii’s general fund,” was not authorized
by law.
(5) I am informed and believe that there is no
dispute or controversy as to why [Petitioner] failed to
appear for his earlier court date, that he was not in
contempt of court, and that there is not and never has been
any factual or legal basis for the forfeiture of his bail.

(Emphases added.)

12
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

On January 4, 2010, the court17 denied Petitioner’s

Second Motion, and granted Petitioner’s request for entry of a

bail forfeiture judgment. On January 15, 2010, the court filed

(1) a Second Order and (2) a Bail Forfeiture Judgment (Second

Judgment). On February 1, 2010, Petitioner filed a Notice of

Appeal from the First Order, the Second Order, and the Second

Judgment.

B.

On April 30, 2012, the ICA issued a SDO in which it

determined that (1) it lacked jurisdiction over Petitioner’s

appeal from the First Order because Petitioner did not file the

second appeal within thirty days of the entry of the First Order

on March 16, 2007, Diaz II, 2012 WL 1525032, at *1;18 (2) it had

jurisdiction over Petitioner’s appeal from the court’s Second

Order and Second Judgment, id. at 1-2; (3) the Second Motion was

timely because, although Respondent contended Petitioner had

general knowledge that the $1,000 bail had been forfeited in

August 2004, nothing in the record established that he was served

with a forfeiture judgment, and Petitioner timely appealed from

the Second Judgment, id. at 2-3.

Additionally, the ICA held that the court did not abuse

its discretion in holding Petitioner had not shown “good cause”

for setting aside the Second Judgment because Petitioner “did not

17
The Honorable Gerald H. Kibe presided.

18
The ICA thus dismissed Petitioner’s appeal from the First Order
for lack of appellate jurisdiction.

13
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

demonstrate how his absence from the State of Hawai#i was not a

violation of the general conditions for release” which required

Petitioner to “‘remain in the State of Hawaii unless approval is

obtained from a court of competent jurisdiction to leave the

jurisdiction of the court[,]’” id. at *4 (quoting HRS §

804–7.4(3)), and Petitioner “failed to provide any explanation

for the circumstances of his incarceration in California that

would support a good cause determination[,]” id. In light of the

foregoing, the ICA affirmed the Second Order. Id.

III.

In his application for writ of certiorari

(Application), Petitioner presents the following questions:
(1) Did the ICA gravely err in finding that the record did not
demonstrate good cause to set aside [the second] bail forfeiture
judgment?

(2) Did the ICA gravely err in finding that [Petitioner] failed to
provide “any” explanation as to the circumstances of his
incarceration in California supporting a good cause determination?

(3) Did the ICA gravely err in finding that [Petitioner] violated
the general conditions of his release by being absent from the
State of Hawai#i?

Respondent did not file a Response to Petitioner’s

Application.

IV.

We note that “[a]lthough neither party raises a

jurisdictional issue in this appeal, ‘[a]n appellate court has .

. . an independent obligation to ensure jurisdiction over each

case and to dismiss the appeal sua sponte if a jurisdictional

defect exists.” In re Robert’s Tours & Transp., Inc., 104

Hawai#i 98, 101, 85 P.3d 623, 626 (2004) (quoting State v.

14
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Graybeard, 93 Hawai#i 513, 516, 6 P.3d 385, 388 (App. 2000))

(brackets and ellipsis in original). As the ICA stated, “with

respect to the timeliness of [Petitioner’s] appeal, ‘HRAP Rule

4(a), as opposed to HRAP Rule 4(b), applies because forfeiture of

a bail bond is a civil proceeding.’” Diaz II, 2012 WL 1525032,

at *1 (quoting Camara, 81 Hawai#i at 329 n.7, 916 P.2d at 1230

n.7) (brackets omitted). HRAP Rule 4(a) provides that, “[w]hen a

civil appeal is permitted by law, the notice of appeal shall be

filed within 30 days after entry of the judgment or appealable

order.’”

Petitioner’s notice of appeal in the instant appeal was

filed on February 1, 2010. That notice of appeal was not filed

within 30 days after the entry of the First Order filed on March

16, 2007. Thus, the ICA correctly determined that

it did not have jurisdiction to consider Petitioner’s appeal from

the First Order. Diaz II, 2012 WL 1525032, at *1. The ICA was

also correct that it did have jurisdiction over the Second Order

because Petitioner’s February 1, 2010 notice of appeal was filed

within 30 days of the filing of the Second Order and Second

Judgment on January 15, 2010.

V.

Although not an issue on certiorari, it should be noted

that Respondent argued to the ICA that Petitioner’s First Motion

was untimely, and thus, the Second Motion was untimely as well

15
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

under HRS § 804-5119 The court concluded that Petitioner’s First

Motion was untimely because Petitioner’s counsel had notice at

least as of December 20, 2005, that Petitioner’s bail had been

forfeited.

However, on certiorari, the timeliness of the First

Motion is not at issue because the ICA concluded that the motion

was not untimely and no party challenges that determination. The

ICA stated that, because Petitioner was not a “surety[,]” it was

not clear whether the specified methods of notice (personal

service or certified mail, return receipt requested required) in

HRS § 804–51 would apply to a defendant that posts his or her own

bail. Diaz II, 2012 WL 1525032, at *3. However, the ICA

concluded that, “at a minimum . . . some type of notice of []

judgment was required, and that the defendant would then have

thirty days to file a motion or application showing good cause

why execution should not issue upon the judgment.” Id. Because

there is nothing in the record indicating that Petitioner was

ever served with the First Judgment, we believe the ICA correctly

19
As previously set forth, HRS § 804-51 provides in relevant part as
follows:

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 enter 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
of the principal or principals, surety or sureties, or any
of them, showing good cause why execution should not issue
upon the judgment, is filed with the court.

(Emphasis added.)

16
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

concluded that the First Motion was not untimely. Diaz II, 2012

WL 1525032, at *2.

As set forth, supra, HRS § 804-51 states that, whenever

bail is forfeited in a criminal case, “the court shall

immediately enter judgment in favor of the State and against the

principal or principals and surety or surety of the bond[.]” The

court “shall cause execution to issue thereon immediately after

the expiration of thirty days from the date that notice is given

via personal service or certified mail, return receipt requested,

to the surety or sureties on the bond, of the entry of the

judgment in favor of the State[.]” HRS § 804-51. However, the

judgment shall not be executed if, “before the expiration of

thirty days from the date that notice is given to the surety or

sureties[,]” “the principal or principals, surety or sureties, or

any of them,” files “a motion or application . . . showing good

cause why execution should not issue upon the judgment, is filed

with the court.” (Emphases added.)

HRS § 804-51, by its express language, provides that a

principal, assumably including a defendant who posts his or her

own cash bail, may file a motion or application to set aside a

bail forfeiture judgment. Inasmuch as both a principal and a

surety may apply to set aside a judgment for good cause, it would

appear consistent with the intent of the statute that conditions

similar to those imposed on sureties should apply to principals,

who are afforded the same right to set aside the judgment. Given

this premise for construing HRS § 804-51, a defendant would have

17
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

“thirty days after notice has been given to the [defendant] that

judgment has been entered in favor of the State[,]” to move or to

apply to set aside a bail forfeiture judgment, as the ICA held.

In the instant case, it is not evident that the type of

notice for entry of judgment prescribed for sureties under HRS §

804-51 was given to Petitioner. However, unlike a surety, a

defendant is a party to the underlying criminal case and would

ordinarily have knowledge of the ongoing status of that case.

Accordingly, notice of the entry of judgment for a principal need

not meet the precise requirements set forth in HRS § 804-51 for

sureties.

We believe this is a reasonable construction of HRS §

804-51. “[T]he legislature is presumed not to intend an absurd

result, and legislation will be construed to avoid, if possible,

inconsistency, contradiction, and illogicality.” State v.

Haugen, 104 Hawai#i 71, 85 P.3d 178 (2004) (emphasis, quotation

marks, and citation omitted); see also State v. Bayly, 118

Hawai#i 1, 7-8, 185 P.3d 186, 192-93 (2008) (“It is a basic rule

of statutory interpretation that ‘provisions of a penal statute

will be accorded a limited and reasonable interpretation ... in

order to preserve its overall purpose and to avoid absurd

results” (quoting State v. Bates, 84 Hawai#i 211, 220, 933 P.2d

48, 57 (1997)) (brackets omitted).

Also, the timeliness of the Second Motion is not at

issue on the ground that it was filed before the expiration of

thirty days from the date that notice was given of the entry of

18
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

judgment of forfeiture, HRS 804-51. The Second Judgment was

filed after Petitioner filed his Second Motion. The ICA

concluded that the filing of the Second Motion before the entry

of the Second Judgment did not render it untimely. Id. at *3.

The thirty-day limit in HRS § 804-51 imposes an outer limit on

the filing of a motion and does not require filing within 30 days

after the judgment of forfeiture is filed. See Diaz II, 2012 WL

1525032, at *3 (citing Saranillio v. Silva, 78 Hawai#i 1, 7, 889

P.2d 685, 691 (1995) (“HRCP [Rule] 59(e) does not require that a

motion be served after the entry of judgment; it imposes only an

outer [ten day] time limit on the service of a motion to alter or

amend the judgment[.]”)). Therefore, Petitioner’s Second Motion

was timely filed under HRS § 804-51.

VI.

This court has declared 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.” Camara, 81 Haw. at 330, 916 P.2d at 1231

(1996) (quoting State v. Seybert, 753 P.2d 325, 326 (Mont.

1988)). Accordingly, “forfeitures of bail bonds will generally

be vacated . . . where it appears to the satisfaction of the

court that uncontrollable circumstances prevented appearance

pursuant to the stipulations in the bond, or that the default of

19
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

the principal was excusable.” Camara, 81 Haw. at 330, 916 P.2d

at 1231.

Also, “[g]enerally, sufficient cause to set aside a

forfeiture is a showing that the party did not break his or her

recognizance intentionally, with the design of evading justice,

or without a sufficient cause or reasonable excuse, such as

unavoidable accident or inevitable necessity preventing his or

her appearance.” Id. at 330, 916 P.2d at 1231 (internal citation

and brackets omitted). Under HRS § 804-51 “good cause why

execution should not issue upon the judgment” of forfeiture “may

be satisfied by the defendant, prior to the expiration of the

thirty-day search period [by]: (1) providing a satisfactory

reason for his or her failure to appear when required; or (2)

surrendering or being surrendered.” Id. at 330, 916 P.2d at

1231. See also State v. Ranger Ins. Co., 83 Hawai#i 118, 123,

925 P.2d 288, 293 (1996).

VII.

A.

Petitioner maintains that his incarceration in

California constituted an uncontrollable circumstance or was

excusable, preventing him from appearing at the August 9, 2004

arraignment, and hence, that he has shown good cause to set aside

the Second Judgment. In its Answering Brief to the ICA,

Respondent asserted that Petitioner failed to provide the ICA

with an adequate record of the proceedings held before the lower

court. (Citing HRAP Rule 10(b)(1) (2010) (requiring an appellant

20
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

who “desires to raise any point on appeal” to “file with the

clerk of the court . . . a request to prepare a reporter’s

transcript of such parts of the proceedings as the appellant

deems necessary that are not already on file”).)20 Respondent

urged that, in light of these omissions, Petitioner failed to

provide a sufficient showing that he was in fact incarcerated at

the time of the arraignment. However, Respondent took no

position at the hearing on the First Motion and raised only

procedural objections to the Second Motion. Respondent therefore

did not dispute at any time Petitioner’s “good cause” position

that he was incarcerated in California on August 9, 2004. Having

failed to challenge Petitioner’s “good cause,” Respondent waived

that objection for appeal.

B.

In addition, on appeal to the ICA, Respondent argued

that a satisfactory reason for nonappearance exists where

compliance with bail conditions are “rendered impossible by the

act of God, the act of the obligee, or the act of law[,]” (citing

State v. Flores, 88 Hawai#i 126, 131, 962 P.2d 1008, 1013 (App.

1998)), and that the United States Supreme Court has held that a

violation of law is “not the act of law” that causes a defendant

20
Respondent stated that Petitioner had failed to order the November
15, 2006 transcript of the hearing at which the court continued the hearing on
Petitioner’s First Motion to obtain clarification on fiscal procedures
regarding bail forfeitures, the November 21, 2006 hearing on Petitioner’s
First Motion, the December 21, 2009 hearing, in which the court permitted
Respondent to file an opposition to Petitioner’s Second Motion, and the
January 4, 2010 hearing on Petitioner’s Second Motion, in which the court
denied Petitioner’s Second Motion.

21
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

to miss a court date but rather an “act of [the] defendant[,]”

(quoting Taylor v. Taintor, 83 U.S. 366, 369-71 (1872)).

However, there is nothing in the record to indicate

that Petitioner was incarcerated in California as the result of a

law violation that occurred while he was on bail in the instant

case. Respondent did not argue in opposition to Petitioner’s

First or Second Motion that Petitioner’s incarceration resulted

from a law violation occurring during Petitioner’s release. Nor

did the court make any finding to that effect. Thus,

Respondent’s suggestion is not borne out by the record.

C.

Based on the record, Petitioner did establish good

cause for setting aside the Second Judgment. As recounted,

Petitioner did not appear at the August 9, 2004, arraignment.

The court therefore forfeited Petitioner’s $1,000 bail. In

addition, criminal contempt charges were instituted against

Petitioner for failing to appear and additional bail was set at

$150. On December 20, 2005, Petitioner’s counsel appeared for

arraignment and plea. At that hearing, Petitioner’s counsel

raised the issue of the bail forfeiture, stating that Petitioner

“didn’t show up in this case because he was in jail in California

at the time.” The court directed counsel to “submit some kind of

proof of [Petitioner’s incarceration] or do a motion” but did not

indicate when such a motion should be filed.

22
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Trial was set for October 24, 2006.21 At trial, the

court dismissed the drug charge and criminal contempt charge with

prejudice. After the charges against Petitioner were dismissed,

Petitioner attempted to retrieve his bail money on October 24,

2006 and discovered that the $1,000 bail had not been reinstated.

A day later, on October 25, 2006, Petitioner filed his First

Motion.

Attached to Petitioner’s First Motion was an affidavit

of Petitioner’s counsel declaring that he was “informed that

[Petitioner] failed to appear [at the August 9, 2004] arraignment

because at the time he was incarcerated in California in an

unrelated matter.” Although the court denied Petitioner’s First

Motion, the court found that “[a]t the time of his August 9, 2004

arraignment, [Petitioner] was in custody in California on an

unrelated criminal matter[.]” Finding 6.22 The court found that

Respondent “took no position” on the motion. Finding 24.

21
Prior to trial, on April 27, 2006, Petitioner filed a Motion to
Dismiss Complaint. The hearing on this motion was also ultimately continued
to October 24, 2006. The minutes do not reflect any objections by Respondent
to these continuances.

22
Although the ICA correctly determined that it did not have
jurisdiction over Petitioner’s appeal from the First Order, this court may
consider the findings and conclusions that evidently support the court’s
conclusion in the Second Order inasmuch as the findings and conclusions are in
the record on appeal. See State v. Young, 93 Hawai#i 224, 238, 999 P.2d 230,
244 (2000) (“review[ing] [] the entire record on appeal” to determine whether
“the trial court's findings . . . were clearly erroneous”). Moreover, several
of the court’s findings were incorporated by reference into the affidavit of
Petitioner’s counsel, attached to Petitioner’s Second Motion. To reiterate,
the Second Order and Second Judgment were signed by the same judge who filed
the First Order and signed the findings and conclusions of the First Order.

23
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

Additionally, in the affidavit of Petitioner’s counsel

attached to Petitioner’s Second Motion, Petitioner’s counsel

again declared that, “[a]t the time of [Petitioner’s] August 9,

2004 arraignment, [Petitioner] was in custody in California on an

unrelated criminal matter[,]” referring to the aforesaid finding

6. Hence, the uncontroverted evidence in this case is that

Petitioner was incarcerated in California at the time of the

August 9, 2004 arraignment (finding 6).

VIII.

A.

Because Petitioner was incarcerated, he could not be

present at the arraignment. Under the circumstances, this

constituted “good cause” for his failure to appear. See Camara,

81 Hawai#i at 330, 916 P.2d at 1231 (“[G]ood cause . . .

encompasses a showing of a satisfactory reason for a defendant’s

failure to appear when required” because the primary purpose of

bond is “to ensure the defendant’s presence[.]”) As stated, the

court made a finding consistent with this premise. There is no

indication in the record that Petitioner “[broke] his . . .

recognizance intentionally, with the design of evading justice,

or without a sufficient cause or reasonable excuse[.]” Id. In

light of the foregoing, the ICA erred in concluding that the

“court did not abuse its discretion in holding that [Petitioner]

did not show ‘good cause’ for setting aside the bail forfeiture

24
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

judgment.” Diaz II, 2012 WL 1525032, at *4.23

B.

Finally, Petitioner maintains that the ICA erred in

determining that the court did not abuse its discretion in

holding that Petitioner violated the general conditions for

release on bail under HRS § 804-7.4. In its First Order, the

court concluded that “[o]n August 9 2004, Defendant violated a

general condition of bail [under HRS § 804-7.4] by not appearing

for his scheduled court” arraignment because there was “no

showing that the court at any time gave Defendant permission to

leave the jurisdiction of the court[].” In its Answering Brief,

Respondent pointed out that “it was [Petitioner’s] burden to

provide the [ICA] with sufficient information in order to

overcome the assumption that the court’s actions were correct.”

However, Respondent did not raise this issue before the court and

consequently waived it for appeal. See Moses, 102 Hawai#i at

456, 77 P.3d at 947.

With respect to HRS § 804-7.4(3), Petitioner cites the

order of the circuit court allowing him to travel to California,

and argues that he “clearly had permission to leave Hawai#i from

a court of competent jurisdiction, which complied with the

23
Prior to ruling on the First Motion, the court continued the
hearing on Petitioner’s First Motion “to obtain clarification regarding the
policies and procedures of the fiscal division of the State Judiciary
regarding bail forfeitures.” Conclusion 22 of the First Order). In finding
7, the court stated the $1,000 bail money had already been “transferred to the
State of Hawaii general fund account.” Finding 7. Of course the foregoing
matter should have no bearing on the issue of whether a bail forfeiture
judgment should be set aside. The purpose of bail is not “to increase the
revenue of the State[.]” Camara, 81 Hawai#i at 331, 916 P.2d at 1232.

25
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

general conditions of release.” Petitioner did obtain “approval”

“to leave the jurisdiction of the court,” HRS § 804-7.4(3), but

from the circuit court. The language of HRS § 804-7.4(3) is

somewhat ambiguous insofar as it requires approval “from a court

of competent jurisdiction.” Logic would dictate that a person on

release should obtain permission from the court in which he

posted bail.

However, in light of the purposes of bail set forth in

Camara and the circumstances of this case good cause was

established for setting aside the forfeiture judgment. The court

found Petitioner was incarcerated on August 9, 2004. The court

found that Petitioner was not in contempt of court for failing to

appear at the August 9, 2004 arraignment. Although not present

at the scheduled arraignment on August 9, 2004, Petitioner was

present for trial. Ultimately, bail served its primary purposes

of “honor[ing] the presumption of innocence,” and “ensur[ing

Petitioner’s] presence in the pending proceeding.” Id.

The court’s refusal to set aside the forfeiture

judgment for failing to appear at the arraignment, then, operated

as a sanction against Petitioner. However, this court has said

that “the purpose of bail in a criminal case is not to punish the

defendant[.]” Camara, 81 Hawai#i at 331, 916 P.2d at 1232.

Under the circumstances, respectfully, the court abused its

discretion in denying Petitioner’s Second Motion.

IX.

For the foregoing reasons, the ICA’s May 30, 2012

26
 ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***

judgment, and the court’s January 15, 2010 order denying in part

and granting in part Petitioner’s Second Motion, are vacated.

This case is remanded to the court for disposition consistent

with this opinion.

Eric A. Seitz, /s/ Mark E. Recktenwald
Ronald N.W. Kim,
Della A. Bellati, /s/ Paula A. Nakayama
and Sarah R. Devine
for petitioner /s/ Simeon R. Acoba, Jr.

Stephen K. Tsushima, /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack

27