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State v. Estrada6/8/1987
he application of enhanced sentencing of HRS § 706-606 (1985). State v. Apao, 59 Haw. 625, 586 P.2d 250 (1978), subsequent resolution, 66 Haw. 682, 693 P.2d 405 (1984). The only difference between HRS §§ 706-606 and 706-606.1 is that the former is for murder sentencing whereas the latter is for attempted murder sentencing. Apao thus applies to both statutes. Apao required a defendant to have "fair notice of the charges against" him: the aggravating circumstances must be alleged in the indictment and found by the jury. 59 Haw. at 635-36, 586 P.2d at 258.
Estrada was entitled to due process at his sentencing. State v. Melear, 63 Haw. 488, 630 P.2d 619 (1981). Judge Mossman could not make the factual findings that Officer Taguma was on duty when shot. The jury had to but did not determine whether Estrada committed attempted murder and the applicability of HRS § 706-606.1(1) (a). Compare State v. Huelsman, 60 Haw. 71, 588 P.2d 394 (1978), reh'g denied, 60 Haw. 308 (1979) (different procedures for sentencing under the multiple offender statutes, HRS §§ 706-662 (1985) and 706-664 (1985)).
Because Estrada was not properly sentenced, the erroneous sentence must be vacated and the case remanded, see State v. Morishige, 65 Haw. 354, 652 P.2d 1119 (1982), so that he will be afforded all those fundamental rights necessary to a fair trial. State v. Kamae, 56 Haw. 628, 548 P.2d 632 (1976); see State v. Tachibana, 67 Haw. 573, 698 P.2d 287 (1985).
The sentence is therefore vacated, the guilty conviction is reversed, and the case is remanded for a new trial.
Disposition
The sentence is therefore vacated, the guilty conviction is reversed, and the case is remanded for a new trial.
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