No. SCWC-10-0000109, Wednesday, October 2, 2013, 11:15 a.m.

(Amended 07/26/13)

STATE OF HAWAI`I, Respondent/Plaintiff-Appellee vs. JOSEPH D. VILLIARIMO, Petitioner/Defendant-Appellant.

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

Attorney for Petitioner/Defendant-Appellant:

Taryn R. Tomasa, Deputy Public Defender

Attorney for Respondent/Plaintiff-Appellee:

Artemio C. Baxa, Deputy Prosecuting Attorney

NOTE: Order accepting Application for Writ of Certiorari, filed 07/19/13.

NOTE: Order granting motion to continue oral argument from 8/22/13 to 10/2/13 at 11:15 a.m., filed 07/25/13.

COURT: MER, CJ; PAN, SRA, SSM, & RWP, JJ.

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Brief Description:

Petitioner/Defendant-Appellee Joseph D. Villiarimo (Villiarimo), pled no contest to a charge of sexual assault in the third degree on December 1, 2008. His sentence included a five year term of probation. On November 13, 2009, the family court of the Second Circuit (family court) modified Villiarimo’s terms and conditions of probation and sentenced him to eight days in jail for failure to refrain from the use of illicit substances. On September 30, 2010, the family court revoked Villiarimo’s probation after determining that Villiarimo had breached three terms and conditions of probation: (1) failure to report to a probation officer as directed by the court or probation officer; (2) failure to maintain mental health treatment services; and (3) failure to participate satisfactorily in the Hawaiʻi Sex Offender Treatment Program. The family court sentenced Villiarimo to five years of imprisonment.

Villiarimo appealed to the Intermediate Court of Appeals (ICA). In a March 28, 2013 Summary Disposition Order (SDO), the ICA affirmed the family court’s order granting the State’s motion for revocation of probation. In his application to this court, Villiarimo argues that the ICA gravely erred in: (1) concluding that the family court did not abuse its discretion in denying Villiarimo’s request for a continuance to obtain the testimony of his treating psychiatrist at the Hawai`i State Hospital; (2) concluding that the family court’s consideration of Villiarimo’s prior drug use did not constitute double jeopardy and violate the due process clause; and (3) in concluding that there was sufficient evidence to conclude that Villiarimo inexcusably violated the terms and conditions of his probation.