NOT FOR PUBLICATION I'N WEST’S HAWAI‘I REPOR'I`S ANI) I’ACIFIC REP()RTER
No. 292i1
in THE 1NTsRMsD:ATE coURT oz APPEALs §§
~"~R>
`"“*'1
oF THE sTATs oF HAwAr: §§
éi`;:~?
sTATE oF HAwAr1; Piainciff~Appeiiee, v. ag
ALiKA PARKs, Defendant-Appe11ant §§
z ,r~
,q co
APPEAL FROM THE FAMlLY COURT OF THE FIFTH CIRCUIT
(FC~CR. NO. 07-1-OO70)
SUMMARY DlSPOSITION ORDER
Nakamura, C.J., Fujise and Leonard, JJ.)
(Parks) appeals from
(By:
Defendant-Appellant Alika Parks
the Order of Resentencing and Revocation of Deferred Acceptance
of No Contest Plea entered June l2, 2008, by the Family Court of
the Fifth Circuit (family court).1
On May 2l, 2007, Parks was charged by petition with one
count of Abuse of a Family and Household Member,
Hawaii Revised Statutes (HRS) § 709~906 (Supp. 2009),
a petty misdemeanor, in violation of HRS
in violation of
and one
count of Harassment,
(Supp. 2007).
The abuse charge was dismissed,
Upon a motion by Parks,
§ 7ll~llO6
and Parks pleaded no
contest to the harassment charge. the
family court2 granted a deferred acceptance of a no contest plea
The family court deferred proceedings until April 30,
that Parks submit to a
(DANCP).
2008, upon the condition, among others,
substance abuse evaluation.
On April l6, 2008,
Revocation or Modification of Probation and for Issuance of a
Attached to the motion
the State filed a "Motion for
Bench Warrant" (motion for revocation).
was the affidavit of Parks's probation officer, who stated that
1 Per diem District Court Judge Joseph N. Kobayashi presided.
2 The Honorable Calvin K. Murashige ordered the abuse charge dismissed
and granted Parks‘s motion for a DANCP.
;` *'*§~'=§§ 5
i.é,..:§
N()T FOR PUBLICATION IN WEST'S H.AWAI‘I REPORTS ANI) PACIFIC REPORTER
she had been notified by a substance abuse treatment facility
that Parks did not appear for a scheduled evaluation.
The State began the May 20, 2008 hearing on the motion
for revocation by noting that the motion for revocation "should
have been a motion to set aside deferred acceptance of no contest
plea.“ The State then, without objection, withdrew the motion
for revocation and filed in open court its "Motion to Set Aside
Deferred Acceptance of No Contest Plea and For Issuance of a
Bench Warrant" (motion to set aside). The family court set aside
the DANCP and sentenced Parks to a one-year term of probation and
a suspended jail sentence.
Parks's sole argument on appeal is that the family
court lacked jurisdiction to grant the State‘s motion to set
aside because it was filed after the deferral period ended.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, as
well as the relevant statutory and case law, we conclude that the
family court had jurisdiction to rule on the State‘s motion.
where the defendant has entered a plea of nolo
contendere to a petty misdemeanor, the court may defer
proceedings for no more than one year. §§e HRS § 853-l(b) (l993r
and Supp. 2009) The trial court retains jurisdiction over a
motion to set aside the deferred acceptance of a plea so long as
the motion is filed before the deferral period ends. §ee §tate
v. Kaufman, 92 Hawafi 322, 328, 991 P.2d 832, 838 (2000) (citing
HRS § 853-l(c) (1976 and Supp. 1984)). A motion to set aside the
deferral will toll the deferral period until the motion is heard
and aecided. see id. at 323-30, 991 P.2d at 333-40.
Here, during the deferral period, the State filed a
motion to set aside a DANCP mistakenly labeled as a motion for
revocation. The issue is whether the mis-titled motion could
serve to toll the deferral period,
Admittedly, there is a notable difference between
probation and deferred acceptance of guilty plea (DAGP)/DANCPs.
2
N()T FOR PUBLICATION lN WEST'S HAWAI‘I REPOR'I`S AND PACIFIC REPORTER
State v. Putnam, 93 HawaFi 362, 367-68, 3 P.3d 1239, i244»45
(2000) ("There is no ‘conviction' when the acceptance of a guilty
plea is deferred. . . . On the other hand, probation is a
disposition that follows only after a conviction.")
Nevertheless, a motion to revoke probation and a motion to set
aside a DAGP/DANCP have the same basis: that the defendant
violated the court-ordered terms of his sentence. Compare HRS
§ 706~625(3) (Supp. 2009) with HRS § 853~3 (1993).
it is clear from the transcript that the prosecution
intended that the motion to set aside substitute for the motion
for revocation. The essence of the two motions -- that Parks
failed to comply with the terms of his sentence ~- was identical,
as were the documents filed in support of the motions. To view
the motion to revoke probation as something other than a motion
to set aside the DANCP would be "raising form over substance."
State v. POOhina, 97 HawaiT_505, 509, 40 P.3d 907, 911 (2002).
Indeed, the affidavit attached to both motions was entitled
"Affidavit for Motion [to] Set Aside Deferred Acceptance of
Guilty or Nolo Contendere Plea."
As a matter of due process, the defendant must be
notified of a motion to revoke probation or to set aside a DAGP
or DANCP so that he may contest it. 'State v. Shannon, 118
Hawai‘i 15, 31, 135 P.3d 200, 216 <2003>. Air;h@ugh d
inappropriately titled, the April 16 motion sufficiently apprised
Parks that the basis for setting aside his DANCP was his absence
at a scheduled substance abuse evaluation. The mislabeling of
the motion did not infringe on Parks's ability to contest this
allegation.
Parks relies on Shannon for the proposition that a
motion to set aside, which is defective because it is made
orally, will not toll the deferral period. Shannon is
inapplicable here. 1n contrast to Shannon, the record indicates
Parks had ample notice in writing of the terms of his plea
agreement and his alleged violation. §ee Shannon, 118 Hawafi at
l8, 185 P.3d at 203.
NOT F()‘R PU'BLICATI()N IN WEST'S HAWAl‘l REI’ORTS AND PACIFIC REPOR'I`ER
The motion for revocation was entered before the
deferral period expired and tolled the deferral period until the
date the court heard the motion to set aside. As such, the
family court retained jurisdiction over the motion to set aside,
Therefore,
lT IS HEREBY ORDERED that June 12, 2008 Order of
Resentencing and Revocation of Deferred Acceptance of No Contest
Plea entered by the Family Court of the Fifth Circuit is
affirmed.
DATED: Honolulu, HawaFi, February 23, 20lO.
On the briefs:
Donovan O. Odo
Deputy Public Defender, 63 (