State v. Johnson

711 P.2d 1295, 68 Haw. 292, 1985 Haw. LEXIS 138
CourtHawaii Supreme Court
DecidedDecember 27, 1985
DocketNO. 9924; CRIMINAL NO. 58258
StatusPublished
Cited by34 cases

This text of 711 P.2d 1295 (State v. Johnson) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Johnson, 711 P.2d 1295, 68 Haw. 292, 1985 Haw. LEXIS 138 (haw 1985).

Opinions

[293]*293OPINION OF THE COURT BY

WAKATSUKI, J.

Defendant-Appellant Paula K. Johnson was indicted for Theft in the First Degree, Hawaii Revised Statutes (HRS) § 708-831(1 )(b)1 and Forgery in the Second Degree, HRS § 708-852. Defendant was convicted by a jury for the lesser included offense of Theft in the Third Degree2 and for forgery as charged. Defendant was sentenced to five years probation for the forgery conviction. Defendant was also sentenced to six months probation for the theft conviction with a special condition that she make restitution to the victim in the amount of $5,406.33 less $75.00 in a manner to be determined by the Adult Probation Division. Defendant appeals the restitution order of the sentence. We affirm in part and remand for further proceedings.

I.

Defendant worked as a travel agent for Century Travel Hawaii, Inc., owned by Sharon Wong. Wong testified that Defendant issued airline tickets without collecting the fares which amounted to $ 13,479.00 of which $6,009.01 was repaid. At the trial, a promissory note3 in the amount of $5,406.33 signed by Defendant in favor of Century Travel Hawaii, Inc. was admitted into evidence.

At the hearing held on April 24, 1984, on the Motion for Correction or Reduction of Sentence, the following colloquy took place between the trial judge and Mr. Gillin, Defendant’s attorney:

[294]*294THE COURT: Was there a promissory note executed by your client?
MR. GILLIN: There was a promissory note prepared and there was a promissory note apparently signed by my client and I believe it was for $5,400, of which $75 has been paid so far.
THE COURT: What happened, the adult probation department determined that that balance, namely $5,400 less $75 was not the —
MR. GILLIN: That apparently is the dispute between Miss Johnson and the adult probation authorities. As far as I see it, Your Honor, an amicable resolution of that amount will put this case to a close.
THE COURT: Is that the balance that you think ought to be paid, namely the promissory note, less the payments made?
MR. GILLIN: From what I see, yes, Your Honor, and I would so represent as an officer of the Court.
THE COURT: Well we will proceed, and we will get the adult probation department involved in order to find out how they arrived at what they arrived at.

Tr. April 24, 1984 at 3.

At the continued hearing on the Motion For Correction or Reduction Of Sentence held on May 8,1984, the following colloquy took place between the trial judge and the attorneys present:

THE COURT: In any event, I recall that that promissory note was not disputed.
MS. LE DUC: That’s correct, Your Honor. In fact, the Defendant testified, regarding the promissory note, that she indeed had signed it, acknowledged it as her own.
THE COURT: Mr. Sakamoto here represented her because he was present at trial.
MS. LEDUC: Your Honor, I do have a copy of the promissory note, a xerox copy. And it shows a face amount of five thousand four hundred and six dollars and thirty-three cents.
THE COURT: And what is the amount of restitution that was paid thus far?
MR. GILLIN: Your Honor, my client indicates that she has paid seventy-five dollars to date.
THE COURT: That is my understanding.

Tr. May 8, 1984 at 8.

[295]*295II.

Defendant argues that the restitution amount should have been $50.00 in light of Defendant being found guilty of committing theft in the third degree and that the trial court erroneously construed the restitution statutes, HRS § 706-605(1)(e)4 and HRS § 706-624(2)(i)5 too broadly in construing crime to mean criminal “conduct.”

The total amount of the restitution ordered by the trial court should be the actual loss or damage incurred by the victim. HRS § 706-605(1)(e); HRS § 706-624(2)(i). See also State v. Harris, 70 N.J. 586, 362 A.2d 32 (1976). The language in question in HRS §§ 706-605(1)(e) and 706-624(2)(i) allows the trial court to determine the total amount of restitution and also the manner in which payment is to be made by the Defendant.

Here, there is no dispute that the promissory note evidences the amount of loss the victim suffered due to Defendant’s criminal act or conduct. Defendant’s argument that $50.00 is the maximum restitution the trial court could have ordered in this case ignores the evidence in the record, Defendant’s own admissions, and Defendant’s attorney’s representations to the trial court of the victim’s losses due to the criminal act or conduct of Defendant.

[296]*296It is clear from the record that although the Adult Probation Division determined that the restitution amount should be $5,406.33 less $75.00, the trial court, based on the evidence and representations made by Defendant’s counsel, also determined that the amount of restitution should be $5,406.33 less $75.00.

“The prescription of penalties is a legislative prerogative, State v. Freitas, 61 Haw. 262, 267, 602 P.2d 914, 919 (1979), but a sentencing court is nonetheless afforded wide latitude in the selection of penalties from those prescribed and in the determination of their severity.” State v. Murray, 63 Haw. 12, 25, 621 P.2d 334, 342 (1980). “This authority is normally undisturbed on review in the absence of an apparent abuse of discretion, State v. Fry, 61 Haw. 226, 231, 602 P.2d 13, 17 (1979); State v. Martin, 56 Haw. 292, 294, 535 P.2d 127-28 (1975), or unless applicable statutory and constitutional commands have not been observed.” Id. at 25, 621 P.2d at 342-43.

Where a statute is susceptible to more than one interpretation, the court will look to the intent of the legislature. See Puchert v. Agsalud, 61 Haw. 25, 34-35, 677 P.2d 449, 456-57 (1984). The committee reports of both the House of Representatives6

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Bluebook (online)
711 P.2d 1295, 68 Haw. 292, 1985 Haw. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-haw-1985.