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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

SCOTT DAVID DEANGELO, Petitioner, 

vs. 

THE HONORABLE KEVIN A. SOUZA, 

Judge of the Circuit Court of the First Circuit, 

State of Hawaiʻi, Respondent Judge. 

and 

STATE OF HAWAIʻI, Respondent. 

SCPW-22-0000607 

ORIGINAL PROCEEDING 

(CASE NO. 1CPC-22-0000231) 

NOVEMBER 17, 2022 

RECKTENWALD, C.J., NAKAYAMA, MCKENNA, WILSON, AND EDDINS, JJ. 

OPINION OF THE COURT BY EDDINS, J. 

 This petition for an extraordinary writ challenges the 

constitutionality of Hawaiʻi Rules of Penal Procedure (HRPP) Rule 

12(g). 

Electronically Filed

Supreme Court

SCPW-22-0000607

17-NOV-2022

09:19 AM

Dkt. 17 OP
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Rule 12(g) allows a judge who dismisses a case based on a 

“defect in the institution of the prosecution or in the charge” 

to order the defendant held for a “specified time” while the 

State re-files charges. Up until recently, courts have rarely 

invoked Rule 12(g). But the present wave of dismissals in cases 

where the State did not obtain an indictment from a grand jury 

has prompted a surge in the rule’s use.

Scott Deangelo is the defendant in one such case. After 

the court dismissed charges against him, it ordered under Rule 

12(g) that Deangelo remain in custody for 90 days, while the 

State sought a grand jury indictment. Deangelo argues that Rule 

12(g) violates the Fourth Amendment of the United States 

Constitution, which protects against unreasonable seizures, and 

Hawaiʻi Revised Statutes (HRS) § 803-9(5) (Supp. 2021), which

requires an “arrested person” to be taken “before a qualified 

magistrate for examination” within 48 hours of arrest. While 

Deangelo’s case has been mooted by his indictment eleven days 

later, his challenge to Rule 12(g) presents an issue of public 

importance. 

We hold that, when probable cause has been found after a 

preliminary hearing but the case is dismissed without prejudice 

due to a defect in the institution of the prosecution, Rule 

12(g) permits a court to hold a defendant in custody or continue 
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bail for a specified time that is reasonable under the 

circumstances. 

I. 

The police arrested Defendant-Petitioner Scott Deangelo 

without a warrant on February 8, 2022 for second-degree murder. 

The next day, the district court made a judicial determination 

of probable cause for the extended restraint of liberty and set 

bail at $500,000. On February 17, the court confirmed its 

probable cause and bail findings. After a two-day preliminary 

hearing on February 25, a different district court judge found 

probable cause to believe that Deangelo committed the charged 

felonies and sent the case to circuit court. 

On March 10, Deangelo was arraigned without a grand jury 

indictment. The circuit court confirmed bail at $500,000. In 

response to the State’s motion to either hold Deangelo without 

bail or increase bail, the circuit court ordered on June 6 that 

Deangelo be held without bail. The court based its order on the 

seriousness of Deangelo’s charged crimes and its finding that 

Deangelo posed a danger to the community and was a flight risk. 

On August 25, Deangelo moved to dismiss the case because he 

had not been indicted in accordance with HRS § 801-1 (2014). 

See State v. Obrero, 151 Hawaiʻi 472, 517 P.3d 755 (2022). The 

State conceded the motion, but requested that the court dismiss 
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the case without prejudice. Citing Rule 12(g), the State also 

asked the court to hold Deangelo in custody without bail.

On October 10, the circuit court dismissed Deangelo’s case 

without prejudice and denied all pending motions as moot. But 

under HRPP Rule 12(g), the court ordered that Deangelo remain in 

custody without bail for 90 days. In the order, the circuit 

court made detailed factual findings. These findings reviewed 

the impact of Covid-19 on grand jury proceedings over the past 

two and a half years. The court observed that for fourteen of 

the last thirty months, grand juries were unavailable in the 

First Circuit. The court pointed out that when the State 

charged Deangelo via complaint, grand jury proceedings were not 

taking place in the First Circuit. In light of this, the 

court’s previous no-bail finding, and based on “the offenses 

alleged, the possible punishment upon conviction, Defendant’s 

financial ability to afford bail, the serious risk that 

Defendant will flee, and the serious risk that Defendant poses a 

danger to any person or the community,” the court decided to 

hold Deangelo in custody. 

By October 16, Deangelo had not yet been indicted. He 

filed a petition for an extraordinary writ to this court. His 

continued custody under 12(g) violated the Hawaiʻi and United 

States Constitutions, as well as HRS § 803-9(5), he argued.

Deangelo wanted to be released.
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Five days later, on October 21, a grand jury indicted 

Deangelo on three counts — murder in the second degree, place to 

keep a pistol or revolver, and place to keep ammunition. Eleven 

days had elapsed since the case’s dismissal. 

The parties disagree on whether Deangelo’s indictment has 

mooted the court’s 12(g) order holding him in custody for up to 

90 days. But both urge us to review the broader issue of Rule 

12(g)’s validity, since it is an issue of public interest that 

may repeat while evading meaningful judicial review. See Moana 

v. Wong, 141 Hawaiʻi 100, 115, 405 P.3d 536, 551 (2017). Because 

we agree that the 12(g) issue should be resolved promptly, we 

assume the mootness of the order holding Deangelo but go on to 

the merits of Deangelo’s statutory and constitutional challenges 

to Rule 12(g) itself. 

HRPP Rule 12(g)1 reads: 

If the court grants a motion based on a defect in the 

institution of the prosecution or in the charge, it may 

also order that the defendant be held in custody or that 

the defendant’s bail be continued for a specified time 

pending the filing of a new charge. Nothing in this rule 

shall be deemed to affect provisions of any statute 

relating to periods of limitations.

1 The rule, formerly known as Rule 12(b)(5), is a slightly modified 

version of Federal R. Crim. P. 12(g). The federal rule provides: 

If the court grants a motion to dismiss based on a defect 

in instituting the prosecution, in the indictment, or in 

the information, it may order the defendant to be released 

or detained under 18 U.S.C. § 3142 for a specified time 

until a new indictment or information is filed. This rule 

does not affect any federal statutory period of 

limitations.
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Deangelo contends that Rule 12(g), on its face and as 

applied to him, violates HRS § 803-9(5) and the Fourth Amendment 

of the United States Constitution.2

Deangelo argues that when the court dismissed his case, all 

proceedings against him terminated, including the prior judicial 

determination of probable cause to hold him. So he was like a 

person arrested without a warrant. And this person has rights. 

First, they have a statutory right under HRS § 803-9(5) to be 

charged or brought before a district court judge for a probable 

cause determination within 48 hours. Second, they have a Fourth 

Amendment and Hawaiʻi constitutional right to a probable cause 

finding made before arrest or promptly after it, where promptly 

means within 48 hours. Gerstein v. Pugh, 420 U.S. 103, 126 

(1975); County of Riverside v. McLaughlin, 500 U.S. 44, 56 

(1991); Constitution of the State of Hawaiʻi article I, section 

7. By empowering judges to hold people in custody after 

dismissal for a specified period of time, Deangelo argues that 

Rule 12(g) on its face violates both HRS § 803-9(5) and his 

constitutional rights against unreasonable seizure. Since a 

court rule cannot abridge substantive rights, Rule 12(g) “must 

be stricken,” or if upheld, must be capped at 48 hours. 

2 Deangelo mentions article I, section 7 of the Hawaiʻi Constitution, 

saying if there’s a Fourth Amendment violation, then there’s an article I, 

section 7 violation. But Deangelo presents no arguments specific to our 

constitution’s Fourth Amendment analogue.
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Not so, says the State. It argues that a person against 

whom a judicial determination of probable cause has already been 

made is not in the same position as a person who has just been 

arrested without that finding. The plain language of HRS § 803-

9(5) governs only a person’s “initial appearance” in court after 

an arrest and has no relevance whatsoever to Rule 12(g). As to 

Deangelo’s constitutional claims, the State maintains that all 

required constitutional procedures were followed — probable 

cause to hold Deangelo was found within 48 hours and confirmed 

after a preliminary hearing. 

II. 

The equivalent of Rule 12(g) has existed in federal law 

since 1944 and as of today has been adopted by at least 26 

states. The rule also has roots in the common law. See Latson 

v. State, 146 A.2d 597, 600 (Del. 1958) (observing that the rule 

“embod[ies] the practice theretofore existing that on the 

dismissal of an indictment the defendant is not automatically 

entitled to discharge, and the court may hold him in custody.”) 

Yet, courts seldom invoke 12(g). See U.S. v. Powers, 168 F.3d 

943, 949 (7th Cir. 1999) (commenting on the “dearth of reported 

cases”). 

In Dawson v. Lanham, we suggested in passing that the trial 

court should have used this rule to hold the defendants in 

custody after the court dismissed their indictment. 53 Haw. 76, 
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83, 488 P.2d 329, 334 (1971). In his dissent, Justice Abe 

pointed out that Rule 12(g) is valid only to the extent that it 

does not abridge substantive rights, a question that the Dawson 

Court did not consider. Id. at 87 n.4, 488 P.2d at 336 n.4. 

 Fifty years later, we take up this question. 

The Fourth Amendment protects against “unreasonable . . . 

seizures.” U.S. Const. Am. IV. It “requires a judicial 

determination of probable cause as a prerequisite to extended 

restraint of liberty following arrest.” Gerstein, 420 U.S. at 

114. That judicial determination, if made after arrest, must be 

made promptly. Id. at 125-26. The Supreme Court has held that 

determinations made within 48 hours of arrest will generally 

satisfy this requirement. McLaughlin, 500 U.S. at 56. HRS 

§ 803-9(5) codifies this rule in Hawaiʻi law. Failure to 

promptly determine probable cause or a defect in the probable 

cause determination itself may render any subsequent custody 

unreasonable. See Manuel v. City of Joliet, Ill., 137 S. Ct. 

911, 918-19 (2017) (holding that probable cause obtained based 

on false police statements renders a seizure unreasonable.) 

Here, no one disputes that sufficient probable cause to 

arrest and hold Deangelo was found. Also, through a preliminary 

hearing a judge determined that probable cause existed to 

believe Deangelo had committed the dismissed charges. The 

constitutional question turns, then, on whether there was still
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probable cause to hold Deangelo after the court dismissed his 

case. 

Typically, a dismissal ends the court proceedings, leaving 

“nothing further to be accomplished.” State v. Kalani, 87 

Hawaiʻi 260, 261, 953 P.2d 1358, 1359 (1998). And we have said 

that after dismissal “even if the prosecution is allowed to 

recharge the defendant, recharging [them] does not revive the 

original case.” Id. at 262, 953 P.2d at 1360. In Kalani, 

however, we considered whether a dismissal without prejudice 

constituted a final order for the purpose of appeal. Kalani did 

not involve a Rule 12(g) order. 

Rule 12(g) creates a limited exception to the procedure 

that a dismissal completely terminates the original case. If 

the court grants a dismissal based on “a defect in the 

institution of the prosecution or in the charge,” the rule 

allows the judge to hold the defendant in custody (or continue 

bail) while the State re-charges. In effect, dismissal paired 

with a 12(g) grant resets the proceedings to where they were 

before the defective charge or indictment was made. In 

Deangelo’s case, that means after a preliminary hearing at which 

the court found probable cause. 

A “[p]reliminary hearing is for the purpose of determining 

whether there is probable cause to warrant holding the accused 

for action by the grand jury.” Engstrom v. Naauao, 51 Haw. 318, 
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320, 459 P.2d 376, 377 (1969); see also State v. Tominaga, 45 

Haw. 604, 609, 372 P.2d 356, 359 (1962) (“The only purpose of a 

preliminary hearing is to determine whether there is sufficient 

evidence against an accused to warrant his being held for action 

by a grand jury.” (citations omitted)). Because grand juries 

may take time to convene, the preliminary hearing helps ensure 

that a defendant is not unreasonably held before indictment. 

Within this framework, a rule like 12(g) does not offend 

the Fourth Amendment, article I, section 7, or HRS § 803-9(5), 

which duplicates the holding of McLaughlin. We stress that 

12(g) is a procedural rule, limited to defects in the charging 

process. The rule cannot abridge a substantive right. HRS 

§ 602-11 (2016). If, as in City of Joliet, it were discovered 

that police had sworn false statements in order to obtain a 

probable cause determination, the seizure would be unreasonable. 

In that case, custody could not continue without violating the 

Fourth Amendment and article I, section 7, and Rule 12(g) could 

not change that. 

No such defect in probable cause occurred here. The State 

charged Deangelo via complaint and a preliminary hearing was 

conducted before our clarification that prosecutions based on 

complaint and preliminary hearing alone are unlawful under HRS 

§ 801-1. See Obrero, 151 Hawaiʻi 472, 517 P.3d 755. By 

dismissing the case, the circuit court addressed this defect in 
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the institution of the prosecution; by invoking Rule 12(g) the 

court ensured that a defendant it believed to be a danger to the 

public and a flight risk would remain in custody while the State 

sought a grand jury indictment. Custody under these 

circumstances abridges no substantive right.3

From the question of whether Rule 12(g) is constitutional, 

we turn to the question of how long a court may hold a defendant 

under the Rule. 

The plain text of 12(g) does not specify how long a 

defendant can be held in custody, only that the time be 

“specified.” Several states that have adopted this rule have 

embedded specific time limits, ranging from one day to 60 days.4

Other states have made explicit that the specified time 

must be reasonable.5

Still others have decided that when a prosecution is 

dismissed, the defendant must be released.6

3 The length of custody authorized under 12(g) may not, for example, 

abridge a defendant’s right to a speedy trial.

4 See Kan. Stat. Ann. § 22-3208(6) (custody limited to one day after 

dismissal); Wyo. R. Prac. & P. 12(i) (48 hours); Wis. Stat. § 971.31(6) (72 

hours); Md. Crim. Causes. 4-252(h)(1) (ten days if the crime charged is a 

crime of violence, otherwise immediate discharge); Ohio Crim. R. 12(j) 

(fourteen days); Iowa R.2.11(7) (20 days); Ky. R. Crim. P. RCr 8.24(2) 

(within 60 days or until the discharge of the next grand jury assembled, 

whichever is sooner).

5 See Utah R. Crim. P. 12(h); Ala. R. Crim. P. 15.5(a); Fla. R. Crim. P. 

R. 3.190(e).

6 See Ariz. R. Crim. P. 16.4(e); Me. R. Crim. P. 12(5); Mont. Code Ann. 

§ 46-13-402.
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No court, federal or state, has interpreted the “specified 

time” language to mandate a fixed maximum time in all cases. 

See, e.g., Esguerra v. State, No. A-8395, 2005 WL 19220, at *3 

(Alaska Ct. App. Jan. 5, 2005) (“[T]he time which the State can 

hold the defendant before reindicting him must be specified, but 

is not limited to ten days.”); Powers, 168 F.3d at 948 

(declining to rule on what a “specified time” constitutes, but 

noting that such an extension potentially “cannot in itself 

affect the speedy trial clock”); U.S. v. Silverman, 129 F. Supp. 

496, 514 (D. Conn. 1955) (continuing bail for 21 days under the 

federal equivalent to 12(g) without discussion). 

The rule does not contemplate a universal time limit and 

setting one would undermine the trial court’s ability to tailor 

its order to the circumstances. We hold only that the time 

specified must be reasonable in light of all the circumstances. 

Relevant circumstances may include the status of the case (is 

the case at the discovery and pretrial motions stage or is trial 

imminent?), the unprecedented exigencies of the Covid-19 

pandemic, the inability of the State to convene grand juries 

during a particular time, the nature and seriousness of the 

defendant’s alleged crime(s), the extent to which the defendant 
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poses a flight risk and a danger to the community, and the 

defendant’s ability to afford bail.7

The circuit court properly looked to these factors. Since 

the State indicted Deangelo before the 12(g) order expired, we 

do not find it necessary to determine whether the circuit court 

abused its discretion in specifying 90 days.

However, we emphasize that no state that has specified a 

deadline to recharge under 12(g) has allowed custody to stretch 

beyond 60 days and that most have settled on a far lower number. 

We do not foresee any circumstances that will justify custody 

longer than 60 days under a 12(g) order. In Deangelo’s case, 

despite the grand jury postponements identified by the circuit 

court, the State was able to secure an indictment within eleven

days. We expect that this time will continue to decrease as 

defendants are lawfully charged. 

Jon N. Ikenaga

for petitioner

Anna Ishikawa

(Loren J. Thomas and

Steven S. Tsushima on the 

briefs)

for respondent

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Michael D. Wilson

/s/ Todd W. Eddins

7 While Rule 12(g) gives the court the option of holding the defendant in 

custody or continuing bail, the court must support either determination with 

findings of fact that comply with HRS Chapter 804.