  *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


                                                               Electronically Filed
                                                               Supreme Court
                                                               SCWC-XX-XXXXXXX
                                                               15-NOV-2018
                                                               07:45 AM




                             SCWC-XX-XXXXXXX

            IN THE SUPREME COURT OF THE STATE OF HAWAI#I


                           STATE OF HAWAI#I,
                    Respondent/Plaintiff-Appellee,

                                     vs.

                        JOSELYN CALIXTA PUNIO,
                    Respondent/Defendant-Appellee,

                                     and

              JAMES SCOTT WEI dba J & J BAIL BONDS,
     Petitioner/Petitioner-Appellant, Real Party-in-Interest.


          CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                (CAAP-170000343; CR. NO. 15-1-0702)

                       SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.)

           Petitioner/Petitioner-Appellant James Scott Wei dba

J & J Bail Bonds (J & J Bail Bonds), real party-in-interest,

seeks review of the Intermediate Court of Appeals’ (ICA)

August 3, 2018 Judgment on Appeal, which affirmed the Circuit

Court of the First Circuit’s (circuit court) “Order Denying
    *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


Application of Surety Providing Good Cause as to Why Execution

Should Not Issue as to Judgment of Forfeiture.”

             We vacate and remand.       When Defendant Joselyn Calixta

Punio (Punio) made an oral motion to set aside the bail bond

forfeiture, the circuit court1 stated that “the bond company has

to file a motion to set aside the court’s prior action.”               Our

bail bond forfeiture provision provides:
                   Whenever the court, in any criminal cause, forfeits
             any bond or recognizance given in a criminal cause, the
             court shall immediately enter up judgment in favor of the
             State and against the principal or principals and surety or
             sureties on the bond, jointly and severally, for the full
             amount of the penalty thereof, and shall cause execution to
             issue thereon immediately after the expiration of thirty
             days from the date that notice is given via personal service
             or certified mail, return receipt requested, to the surety
             or sureties on the bond, of the entry of the judgment in
             favor of the State, unless before the expiration of thirty
             days from the date that notice is given to the surety or
             sureties on the bond of the entry of the judgment in favor
             of the State, a motion or application of the principal or
             principals, surety or sureties, or any of them, showing good
             cause why execution should not issue upon the judgment, is
             filed with the court.

Hawai#i Revised Statutes (HRS) § 804-51 (2014) (emphasis added).

             Under our bail bond statute, a “principal” includes a

defendant.      See State v. Diaz, 128 Hawai#i 215, 223, 286 P.3d

824, 832 (2012); see also HRS § 804-41 (2014) (“At any time

before the breach of the condition of the bond, the surety may

discharge oneself by surrendering the principal into the hands of

any sheriff or the chief of police . . . .”).             Therefore, under



1
       The Honorable Colette Y. Garibaldi presided.

                                        2
 *** NOT FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***


HRS § 804-51, a defendant may file a motion to set aside a bail

bond forfeiture.

          In this case, although the circuit court did not abuse

its discretion in requiring a written motion to set aside the

bail bond forfeiture, the circuit court erred as a matter of law

when it did not consider the motion made by Punio (the defendant)

and instead required that a motion be filed by J & J Bail Bonds

(the surety).

          Accordingly, we vacate the ICA’s August 3, 2018

Judgment on Appeal, vacate the circuit court’s January 17, 2017

Order Denying Application of Surety Providing Good Cause as to

Why Execution Should Not Issue as to Judgment of Forfeiture, and

remand this matter to the circuit court to consider Punio’s

November 3, 2015 motion to set aside the bail bond forfeiture.

          DATED:    Honolulu, Hawai#i, November 15, 2018.

William A. Harrison for                  /s/ Mark E. Recktenwald
petitioner/petitioner-
appellant J & J Bail Bonds               /s/ Paula A. Nakayama

Brian R. Vincent for                     /s/ Sabrina S. McKenna
respondent/plaintiff-appellee
State of Hawai#i                         /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




                                     3
