Opinion
24546
November 16, 2001.
ORIGINAL PROCEEDING (CR. NO. 00-1-1962)
ORDERUpon consideration of the petition for a writ directed to a judge filed by Petitioner State of Hawai`i and the papers in support, it appears that:
(1) the respondent judge entered an order granting Defendant-Respondent Maximo Cristobal, Jr.'s motion for a deferred acceptance of guilty (DAG) plea in State v. Cristobal, Cr. No. 00-1-1962;
(2) Petitioner contends Defendant-Respondent Cristobal was ineligible for a DAG plea because he had received a DAG plea in 1981;
(3) pursuant to HRS § 853-4(11), a defendant cannot be granted a DAG plea where the defendant has been charged with a felony offense and has been previously granted a DAG plea for a prior offense, regardless of whether the period of deferral has already expired; and
(4) Defendant-Respondent Cristobal acknowledges that he previously received a DAG plea and was not entitled to receive a DAG plea in the instant case. Therefore,
IT IS HEREBY ORDERED that: (1) the petition for a writ of mandamus is granted; (2) the order granting the deferred acceptance of guilty plea in State v. Cristobal, Cr. No.00-1-1962, is vacated; and (3) this matter is remanded to the circuit court for resentencing.