APPEAL FROM THE DISTRICT COURT OF THE FIRST CIRCUIT. District Court Case No. TR123P of 10/30/92.
James S. Burns, Corinne K.a. Watanabe, Simeon R. Acoba, Jr.
OPINION OF THE COURT BY ACOBA, J.
The State of Hawaii (State) appeals from a district court order entered on October 30, 1992, dismissing two charges against Defendant-Appellant Romeo Fagauai Mageo (Defendant) for driving without no-fault insurance, in violation of Hawaii Revised Statutes (HRS) § 431:10C-104 (Special Pamphlet 1987 and Supp. 1992). The district court apparently held that Defendant had not been served with penal summonses in a timely manner, referring to Hawaii Rules of Penal Procedure (HRPP) Rule 9, or, in the alternative, that HRPP Rule 48 applied to Defendant, who had not been brought to trial within six months, as required under that rule.
We agree with the State that HRPP Rule 48 did not apply to Defendant because the offenses involved here are "traffic offenses" expressly excepted from the operation of HRPP Rule 48. However, we believe that the district court had inherent power to dismiss the traffic offenses for want of prosecution. The State having offered no explanation for the over two-year delay in serving Defendant with the penal summonses, we find the district court did not abuse its discretion in the exercise of its inherent power, and therefore, affirm the order granting the motion to dismiss.
We glean the following matters from the sparse record before us. Defendant was cited for driving without no-fault insurance on July 12, 1989, October 9, 1989, and March 8, 1991. Neither the citations nor their contents is in the record. Evidently, Defendant did not report to court in response to the citations because penal summonses were issued for him on August 1, 1989, November 1, 1989, and April 5, 1991, for the respective citations. There is no record of the penal summonses being served, or pursuant to HRPP Rule 9(c), of the summonses being returned unserved, cancelled, and reissued for service.*fn1
However, all of the penal summonses were "reinstated"*fn2 on February 5, 1992. Prior to reinstatement of the penal summonses, there was no case activity of record for two and one-half years on the first citation, and for two and one-fourth years on the second citation.
On February 21, 1992, Defendant entered a plea of not guilty to all three citations. On October 5, 1992, Defendant filed a written motion to dismiss the first two citations only.*fn3 The motion primarily maintained that (1) the State had failed to commence trial within six months of the penal summonses' issuance, in violation of HRPP Rule 48, and that (2) Defendant's right to a speedy trial under the United States and Hawaii Constitutions had been denied.
The hearing on the motion to dismiss took place on October 30, 1992. At the hearing, the court took no evidence but questioned Defendant from the bench. Defendant's unsworn response to the court indicated he had been in Hawaii since 1989 and had not left the State.*fn4 Neither party objected then, or on appeal, to this procedure.*fn5
The district court then granted the motion on essentially two grounds:*fn6 (1) the penal summonses had not been timely served, in violation of HRPP Rule 9(c)(3)(ii), which states that summonses must be served "without unnecessary delay," and alternatively, (2) the "traffic offenses" exception to the HRPP Rule 48 requirement that Defendant's trial be commenced within six months of being charged was inapplicable, because he was potentially subject to punishment for a petty misdemeanor as opposed to a "violation."*fn7
The court did not render a decision on Defendant's speedy trial claim.
We examine the district court's reliance on HRPP Rule 48 first.
In response to the State's contention that HRPP Rule 48 specifically excludes traffic offenses from its scope, the court indicated that the "possibility of the jail sentence . . . makes it . . . a petty misdemeanor . . . and . . . not a traffic offense." But it has already been established that the severity of the penalty is not determinative of whether an act is to be considered a traffic offense under HRPP Rule 48. State v. Leatiota, 69 Haw. 253, 254, 739 P.2d 930, 930 (1987). For, "the rule in question exempts . . . all traffic offenses . . . even though [the offense may be] a serious crime." Id. (Driving under the influence (DUI), HRS § 291-4(a)(1) (1985), is both a serious crime and a traffic offense.)
The question remains as to whether a violation of HRS § 431:10C-104 constitutes a "traffic offense." An "offense" generally refers to a felony or misdemeanor, or a "violation of law for which a penalty is prescribed." Black's Law Dictionary 1081 (6th ed. 1990). Under the Hawaii Penal Code (HPC), "offenses are classified into 'crimes' and 'violations' with 'crimes' further subdivided into felonies, misdemeanors and petty misdemeanors." Commentary to HRPP Rule 1, submitted 1975 at 2. As a result, any penalty applicable to Defendant would result in charging an "offense." For the first violation of HRS § 431:10C-104, Defendant would be subject to a fine of $1,000, HRS § 431:10C-117, (Supp. 1990) (amended 1990 and 1993), making the offense a "violation" under the HPC. HRS § 701-107(5) (1985). For multiple violations of the statute, Defendant would be subject to up to 30 days' imprisonment, HRS § 431:10C-117(3)(A), ...