Haw. Code R. § 7-6-13 - Vacating suspensions

(a) If at any time during the period of suspension the convening authority receives information that the probationer may have violated any of the terms of that suspension, the convening authority, after consultation with the appropriate judge advocate, may begin procedures to consider whether the suspension shall be vacated.

(b) The convening authority may initiate the procedure by written notification to the probationer, delivered in person or by certified mail, return receipt requested, delivery restricted to addressee only, in a postage and fees paid envelope deposited in an office of the United States Postal Service, addressed to the probationer at the latest available address shown on the records of the unit. If the probationer refuses to accept personal delivery, or the notice by mail is returned undelivered, the convening authority may proceed summarily. Notice sent by mail as provided in this subsection shall be presumed to be personally delivered to the probationer seven days following date of deposit. The form notification shown in the exhibit entitled "Annex 22" dated 1 November 1984, located at the end of this subtitle may be preprinted on unit stationery by convening authorities, or may be tailored to fit each case.

(c) If the probationer requests additional time to consult with counsel prior to responding, the convening authority may grant a reasonable amount of additional time so that the probationer may have the opportunity to prepare and present a meaningful response to the allegations of violation of terms of suspension.

(d) The convening authority may utilize any administrative procedure to insure that all facts of the matter are available prior to making the decision as to whether to vacate the suspension. In addition, the convening authority may appoint a court of inquiry under section 124A-161, HRS, or may detail a law officer to conduct a hearing into the matter. In any case where a special court-martial sentence, as approved, includes a bad conduct discharge, or of any general court-martial sentence, the special court-martial convening authority of the probationer shall hold a hearing on the alleged violation of probation, The record of hearing and the recommendation of the special court-martial convening authority shall be sent to the governor in cases involving general court-martial sentence and to the commanding officer of the force of the military force of which the probationer is a member in case of a special court-martial sentence which includes a bad conduct discharge.

(e) The governor, the commanding officer of the force of the state military force of which the probationer is a member, or the convening authority, as the case may be, shall determine what disposition to make of the alleged violation of suspension. Any of the following actions may be taken:

(1) Continue the accused on suspension;

(2) Vacate the suspension, remit any part or amount of the unexecuted part of the sentence, and order the remainder of the sentence into execution; or

(3) Vacate the suspension and order the unexecuted portion of the sentence into execution.

In addition, the authority considering vacation of a suspension may initiate action for court-martial charges or nonjudicial punishment for the act constituting the alleged violation of suspension, if the act also constitutes a violation of chapter 124A, HRS.

(f) If the authority considering vacation of a suspension vacates the suspension, an appropriate order shall be published. An example of an order is contained in the exhibit entitled "Annex 23" dated 1 November 1984, located at the end of this subtitle. If confinement is ordered executed, a mittimus shall also be issued.

Notes

Haw. Code R. § 7-6-13

[Eff: FEB 11 1985] (Auth: HRS § 124A-171) (Imp: HRS § 124A-100)