2023 Hawaii Revised Statutes › Title 37. Hawaii Penal Code › 701. Preliminary Provisions › 701-101 Applicability to offenses committed before the effective date of amendments.

§701-101 Applicability to offenses committed before the effective date of amendments.
(1) Except as provided in subsection (2), amendments made by Act 314, Session Laws of Hawaii 1986, to this Code do not apply to offenses committed before the effective date of Act 314, Session Laws of Hawaii 1986. Prosecutions for offenses committed before the effective date of Act 314, Session Laws of Hawaii 1986, are governed by the prior law, which is continued in effect for that purpose, as if amendments made by Act 314, Session Laws of Hawaii 1986, to this Code were not in force. For purposes of this section, an offense is committed before the effective date of Act 314, Session Laws of Hawaii 1986, if any of the elements of the offense occurred before that date.
(2) In any case pending on or commenced after the effective date of amendments made by Act 314, Session Laws of Hawaii 1986, to this Code, involving an offense committed before that date upon the request of the defendant, and subject to the approval of the court, the provisions of chapter 706 amended by Act 314, Session Laws of Hawaii 1986, may be applied in particular cases. [L 1972, c 9, pt of §1; am L 1986, c 314, pt of §1]
Revision Note
Reference to subsection (3) in subsection (1) deleted.
Cross References
Application of the Penal Code to persons sentenced prior to its effective date, see L 1975, c 188.
COMMENTARY ON §701-101
In general this Code does not apply to offenses committed before its effective date. Subsection (1) contains a saving clause which keeps the prior law in effect to cover offenses committed prior to the effective date.
Subsection (2) permits, in trials after the effective date of the Code, limited exceptions to the foregoing general rule. Subsection (2)(a) provides, upon request of the defendant, that defenses and mitigations under the new Code shall apply in trials of offenses committed prior to its effective date. The policy behind this provision is humanitarian. In enacting a defense, or in omitting from the Code an offense defined in previous law, the legislature will have determined that certain conduct is not criminal, or is justifiable or excusable. That conduct should not be penalized after such a decision is made even though technically it occurred before the effective date of the decision. This is, of course, quite a different matter from enacting retroactive offenses, which would be unconstitutional. Subsection (2)(b) covers two points. First it provides that, upon the request of the defendant and the approval of the court, the procedural provisions of the Code shall apply to prior offenses. These would include provisions on burden of proof and the procedures provided in chapter 704 relating to a determination of fitness to proceed and penal responsibility. Finally, the subsection permits use of the new sentencing provisions of this Code for offenses committed before the effective date. Again, the rationale is that defendants ought to be allowed the advantage of the new Code's more enlightened sentencing provisions in light of a legislative determination that they are preferable to the old.
Subsection (3) applies the provisions of this Code to release and discharge of prisoners and to probation of persons sentenced for crimes committed before its effective date. Any other rule would create great administrative difficulties. The subsection specifies, however, that minimum and maximum periods shall not be increased. It also makes clear that the Code may not be used to attack the procedural or substantive validity of any judgment of conviction entered prior to the effective date of the Code, regardless of the fact that appeal time has not run or that an appeal is pending. If prior convictions were to be opened to attack on the basis of the Code, an intolerable burden would be placed on the prosecution and the courts.
SUPPLEMENTAL COMMENTARY ON §701-101
Act 314, Session Laws 1986, provided that that Act's amendments to the Code take effect on January 1, 1987. By delaying the effective date of the amendments, the legislature intended to give criminal justice agencies time to determine how the amendments will affect them and to make provisions for the changes. Conference Committee Report No. 51-86.
Case Notes
"Applicable offense" in subsection 2(a) construed. 56 H. 129, 531 P.2d 855 (1975).
Subparagraph (2)(b)(ii) does not grant authority to alter sentences imposed under pre-Hawaii Penal Code. 60 H. 309, 588 P.2d 927 (1979).
Language of subsection (1) means that all elements necessary to prove a crime charged under Penal Code must be shown to have occurred after its effective date. 62 H. 364, 616 P.2d 193 (1980).
State may prosecute welfare fraud defendant under an indictment which covers only part of the duration of a continuing offense. 62 H. 364, 616 P.2d 193 (1980).
Section 701-108(6)(a) does not apply as a "defense" for purposes of subsection (2). 62 H. 474, 617 P.2d 84 (1980).