69 Haw. 424

STATE OF HAWAII, Plaintiff-Appellee, v. SIDNEY NORIO GAMULO, Defendant-Appellant, and ALVIN HARUO OKIMOTO, Defendant

NO. 11935

(CRIMINAL NO. 59087)

NOVEMBER 9, 1987

LUM, C.J., NAKAMURA, PADGETT, HAYASHI AND WAKATSUKI, JJ.

OPINION OF THE COURT BY

WAKATSUKI, J.

Defendant-Appellant Sidney N. Gamulo (defendant) was convicted of promoting a dangerous drug in the third degree. For that offense, he was sentenced to 5 years of probation, commencing on February 17, 1984.

On September 10, 1986, defendant, while on probation, was convicted of theft in the first degree, a class C felony. Pursuant to Hawaii Revised Statutes (HRS) § 706-625(c) (1985),1 the sentencing court revoked defendant’s probation.

After the revocation of probation, defendant was resentenced to a five-year term of probation, nunc pro tunc as of February 17, *4251984, with a special condition that he be incarcerated for a period of one year.

Defendant appeals the terms of his resentencing. We affirm.

I.

Defendant contends that the sentencing court abused its discretion when, upon revocation of probation, it resentenced defendant to the same term of probation, nunc pro tunc, with a special term of one-year imprisonment. We disagree.

The prescription of penalties is a legislative prerogative, but a sentencing court is nonetheless afforded wide latitude in the selection of penalties from those prescribed and in the determination of their severity. This authority is normally undisturbed on review in the absence of an apparent abuse of discretion, or unless applicable statutory and constitutional commands have not been observed. (Citations omitted.)

State v. Johnson, 68 Haw__,_, 711 P.2d 1295, 1298, (1985).

There has been “an inclination on the part of the legislature to vest in the sentencing court the discretionary authority to apply the Hawaii Penal Code’s more enlightened sentencing provisions where such application would further the penological objectives of the statute.” State v. Von Geldern, 64 Haw. 210, 214, 638 P.2d 319, 322 (1981). This inclination to vest the sentencing court with discretion is clearly reflected in the language of HRS § 706-625 (1985). In pertinent part, the statute reads as follows:

(a) During a period of probation ..., the court, . . . after a hearing, may revoke the ... probation, modify the requirements imposed on the defendant, or impose further requirements authorized by section 706-624.
(d) The court may modify the requirements imposed on the defendant or impose further requirements, if it finds that such action will assist the defendant in leading a law-abiding life.

The only limitation placed on the sentencing court’s discretion is found in subsection (e) of § 706-625:

(e) When the court revokes .. . probation, it may impose on the defendant any sentence that might have been imposed originally for the crime of which he was convicted.

*426Defendant originally could have been sentenced to imprisonment for a maximum term of five years, HRS § 706-660 (1985),2 for the offense of promoting a dangerous drug in the third degree, a class C felony, HRS § 712-1243 (1985). Alternatively, statutes permit a five-year sentence of probation, HRS § 706-623 (1985),3 which may be conditioned with a one-year term of imprisonment, HRS § 706-624(3) (1985).4 .

One may argue that the legislative mandate revoking defendant’s original probation becomes meaningless if the sentencing court could reimpose the same sentence of probation. In reading HRS § 706-625 in its entirety, we conclude that the legislature mandated revocation of probation under certain circumstances as a means of compelling the court to review the defendant’s original sentence in light of new facts. Upon such review, the court is free to reimpose probation if such sentence “would further the penological objectives of the statute.” State v. Von Geldern, supra.

After revoking defendant’s original probation, the sentencing court chose to reimpose a five-year probation sentence conditioned with a one-year prison term. The same sentence could have been *427originally imposed for the conviction of promoting a dangerous drug in the third degree. We find that the applicable statutes have been complied with by the sentencing court. There was no abuse of discretion by the court.

Melvin Wong for defendant-appellant.

Alexa D. M. Fujise (Arthur E. Ross on the brief), Deputy Prosecuting Attorney, for plaintiff-appellee.

Defendant’s other contentions are without merit.

Affirmed.

State v. Gamulo
69 Haw. 424

Case Details

Name
State v. Gamulo
Decision Date
Nov 9, 1987
Citations

69 Haw. 424

Jurisdiction
Hawaii

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