State v. Ryan8/15/1978
he order or warrant of commitment. In any proceeding for review of the judgment, sentence, or commitment, no presumption of law shall be made in support of the jurisdiction to render the judgment, pronounce the sentence, or order the commitment. A judgment, sentence, or commitment under subsection (3)(a) shall not be subject to review by appeal, but shall be subject to review in an appropriate proceeding for an extraordinary writ or in a special proceeding for review.
The State contends that the conviction was under subsection (3)(a) and is expressly not subject to review by appeal under subsection (5). A conviction under subsection (3)(b) is subject to review by appeal under HRS § 641-12. Although the sentence evidences the district court's election to treat the offense as a petty misdemeanor, the court did not indicate under which subsection it was proceeding. The conviction
must be regarded as under subsection (3)(b), although the procedural requirements of that subsection were not followed, if the offense was neither committed in the immediate view and presence of the court nor committed under such circumstances that the court had knowledge of all the facts constituting the offense, as required for a proceeding under subsection (3)(a). In re Bettencourt, 55 Haw. 430, 521 P.2d 668 (1974).
The majority of federal and state courts that have been confronted with the question of how to classify absence from court proceedings have viewed nonappearance as a contempt out of the presence of the court. In re Lamson, 468 F.2d 551 (1st Cir. 1972), United States v. Willett, 432 F.2d 202 (4th Cir. 1970), United States v. Delahanty, 488 F.2d 396 (6th Cir. 1973), In re Allis, 531 F.2d 1391 (9th Cir. 1976), Rogers v. Superior Court, 2 Ariz. App. 556, 410 P.2d 674 (1964), District Attorney v. District Court, 150 Colo. 136, 371 P.2d 271 (En Banc 1962), Harthun v. District Court, 178 Colo. 118 (1972), Lee v. Bauer, 72 So. 2d 792 (Fla. 1954), People v. Westbrook, 242 Ill. App. 338 (1926), In re Henry, 32 Mich. App. 654, 189 N.W.2d 96 (1976), Ex. parte Clark, 106 S.W. 990 (Mo. 1907), La Pera v. Snider, 240 N.W.2d 862 (N.D. 1976), Dobbs, Contempt of Court: A Survey, 56 Cornell L. Rev. 183 (1971), Annotation, 97 A.L.R.2d 431 (1964). Essentially, these courts have reasoned that logic is strained by ruling that absence amounts to presence. "It would seem like an exquisite and palpable contradiction of terms to complain in one breath that the petitioner and his acts were absent, and in the next breath to say such absence constituted a presence; that is, a contempt committed in the presence of the court." Ex parte Clark, supra, 106 S.W. at 997.
We conclude that appellant's offense, since it clearly consisted of absence from the court, could not be dealt with as an offense committed in the immediate view and presence of the court. The court might nevertheless have proceeded under subsection (3)(a) if the offense had been committed under such circumstances that the court had knowledge of all the facts constituting the offense. All of the offenses described in subsection (1) of the statute require a degree of
scienter and in order to have knowledge of all the facts constituting the offense it was necessary for the court to have knowledge that the offense was committed recklessly, knowingly, intentionally or with intent to interrupt the court's proceedings, depending upon the clause of subsection (1) which the court deemed to be involved. It does not appear from the record that the court had knowledge of appellant's state of mind
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