explaining that "[t]he most frequent use of judicial notice of ascertainable facts is in noticing the content of court records. This court has validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same." (citation omitted)
How later courts described this case
- explaining that "[t]he most frequent use of judicial notice of ascertainable facts is in noticing the content of court records. This court has validated the practice of taking judicial notice of a court's own records in an interrelated proceeding where the parties are the same." (citation omitted)
- holding that HRPP Rule 32(c)(1) is inapplicable to the issue whether a defendant’s probation can be revoked for a felony of which the defendant was convicted but for which he was not sentenced
- holding that “convicted,” for the purpose of revocation of probation, meant “the ascertainment of guilt by guilty plea, or by verdict” and not a “judgment of conviction.”
- stating that “the more technical definition of “conviction” includes judgment or sentence rendered pursuant to ascertainment of guilt”
Written by the judges who cited it.
Distinguished
Distinguished by State v. Graybeard, 93 Haw. 513 (2000)
68 Haw. 164, 166, 706 P.2d 1300, 1303 (1985) (holding that HRPP Rule 32(c)(1) is inapplicable to the issue whether a defendant’s probation can be revoked for a felony of which the defendant was convicted but for which he was not sentenced).
The opinion
*168 CONCURRING OPINION BY
PADGETT, J.
I concur in the result. I do not join in the ruling that “convicted” for the purposes of HRS § 706-628 means a guilty plea or a verdict and not the judgment. I do not think it is necessary to pass on that issue in this case.
What happened here was that after the guilty verdict and before sentencing, the State moved for revocation of probation. The motion for revocation and the matter of the sentencing came on for hearing on the same day. The judge elected to hear the motion for revocation of probation first and denied it because he had not yet sentenced the appellee. This was a triumph of form over substance. In such a situation, the court should first sentence the defendant and then hear the revocation motion. A ruling to that effect is all that is necessary to reach the appropriate result in this case.
The rule adopted by the majority opinion is that upon a guilty verdict or a plea of guilty, the defendant has been “convicted” for purposes of probation revocation. From this, it follows that, the defendant’s probation, on motion, must be revoked even though the guilty verdict has been set aside on a motion for new trial.
The procedure I have suggested, of considering sentencing first and revocation second, would not, as a practical matter, pose any substantive practical difficulties since upon a guilty verdict, if the crime is a serious one, no bail would be allowable pending sentencing under HRS § 804-3(b)(4). We should avoid prematurely construing the word “convicted” in HRS § 706-628 to have a different meaning from the word “conviction” in HRPP Rule 32 or in HRS § 706-606.5. Compare State v. Rodrigues, 68 Haw. _ , 706 P.2d 1293 (1985).