50 P.3d 166 | Nev. | 2002
Lead Opinion
OPINION
By the Court,
This case involves alleged violations of the Interstate Agreement on Detainers (IAD). Codified in Nevada at NRS 178.620, the IAD provides for expeditious and orderly resolution of criminal charges pending in one state against a prisoner in another state. While subject to a pending, untried indictment in Nevada, appellant Dwayne Diaz was incarcerated in California on unrelated charges. Diaz was ultimately brought to trial in Nevada and convicted of the felony charge. Diaz appeals his conviction, alleging violation of the IAD’s speedy trial and antishuttling provisions. We conclude that Diaz’s conviction did not violate the IAD and, therefore, affirm the district court’s judgment of conviction.
FACTS
On February 11, 1998, the State of Nevada indicted Diaz for driving while under the influence of alcohol, with two or more
In approximately January 1999,
On June 15, 2000, this court reversed the order of dismissal. Trial was again delayed when, on September 28, 2000, Diaz filed a second motion to dismiss, this time alleging violation of the IAD’s speedy trial and antishuttling provisions. On October 10, 2000, the district court denied Diaz’s motion. Trial was held on October 17, 2000, at which time Diaz pleaded guilty, reserving the right to appeal the IAD issues.
DISCUSSION
Diaz alleges that this court should reverse his conviction because the State violated the IAD by failing to bring him to trial within the time required by the IAD, and because it violated the IAD’s antishuttling provision by returning Diaz to California before bringing him to trial. We disagree.
The IAD’s speedy trial provision — tolling
This case is governed by Article III of the IAD.
Here, the State failed to bring Diaz to trial within 180 days of his request for disposition. The delay in trial, however, was not caused by the State, but by Diaz’s filing of two pretrial motions to dismiss. The United States circuit courts of appeals are divided as to whether the IAD period is tolled during the time required to resolve matters raised by the defendant.
Diaz initiated his first motion to dismiss even before he requested disposition of his indictment under the IAD. The IAD
The IAD’s antishuttling provision
The district court’s conviction of Diaz, likewise, did not violate the IAD’s antishuttling provision. The IAD’s antishuttling provision requires that trial be held on any pending indictment prior to the return of the defendant to the original place of imprisonment, or the indictment is to be dismissed with prejudice.
The antishuttling provision is not violated when the “shuttling” is the result of an erroneous order of the trial court that is later overturned.
This case is easily distinguishable from Alabama v. Bozeman where the United States Supreme Court recently found a violation
Bozeman is factually distinct from the case at hand. The shuttling in Bozeman occurred while the charges against Bozeman were still pending — Bozeman was brought to Alabama for arraignment and then returned to Florida to await trial. Here, the shuttling occurred because the charges against Diaz were dismissed — Diaz was brought to Nevada so that he could argue his motion to dismiss, and was returned to California when that motion was granted. In Bozeman, there was no reason why Alabama could not have detained Bozeman until trial rather than shuttling him back and forth. Here, by contrast, once the charges against Diaz were dismissed, Nevada had no authority upon which to detain Diaz. Sending Diaz back to California was unavoidable.
CONCLUSION
Because we conclude that Diaz’s conviction did not violate the IAD, we affirm the district court’s judgment of conviction.
The precise date of incarceration is not clear from the record before this court, but is not relevant to this appeal.
When the State of Nevada filed the detainer is not exactly clear. The State claims that it may not have filed a detainer prior to Diaz’s request for disposition, such that the IAD may not apply to this case. This court recently noted that the IAD is only triggered when a written detainer has been filed prior to a prisoner’s demand for disposition. Theis v. State, 117 Nev. 744, 753 n.21, 30 P.3d 1140, 1145 n.21 (2001). However, because the State failed to raise this issue below, and because it does not affect the outcome of this appeal, we decline to consider it. Walch v. State, 112 Nev. 25, 30, 909 P.2d 1184, 1187 (1996).
NRS 178.620, art. m(a).
Id.
Id. This case is not, as Diaz suggests, governed by Article IV of the IAD. Article IV applies only where the state, not the prisoner, initiates disposition. NRS 178.620, art. IV(a); see also Alabama v. Bozeman, 533 U.S. 146, 150 (2001); U.S. v. Kurt, 945 F.2d 248, 251 (9th Cir. 1991).
See U.S. v. Whiting, 28 F.3d 1296, 1307 (1st Cir. 1994) (discussing the division between the circuits). Whiting explained that the United States Courts of Appeals for the Fifth and Sixth Circuits only toll the IAD period when the defendant is unable to stand trial due to mental or physical incapacity. Id. (citing Birdwell v. Skeen, 983 F.2d 1332, 1340-41 (5th Cir. 1993); Stroble v. Anderson, 587 F.2d 830, 838 (6th Cir. 1978)). Whereas the First, Second, Fourth, Seventh, and Ninth Circuits have all construed the provision to allow tolling during the time required to resolve matters raised by the defendant. Id. at 1307 & n.9 (citing U.S. v. Johnson, 953 F.2d 1167, 1172 (9th Cir. 1992); U.S. v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988); United States v. Scheer, 729 F.2d 164, 168 (2d Cir. 1984); United States v. Hines, 717 F.2d 1481, 1486-87 (4th Cir. 1983)).
Johnson, 953 F.2d at 1172 (where a delay is excludable under the Speedy Trial Act because it is attributable to defendant’s own motions, the IAD clock is also tolled).
Snyder v. State, 103 Nev. 275, 277, 738 P.2d 1303, 1305 (1987).
See Johnson, 953 F.2d at 1172; U.S. v. Dawn, 900 F.2d 1132, 1136 (7th Cir. 1990); United States v. Roy, 111 F.2d 54, 59 (2d Cir. 1985); State v. Batungbacal, 913 P.2d 49, 56 (Haw. 1996); Com. v. Petrozziello, 491 N.E.2d 627, 632-33 (Mass. App. Ct. 1986); State v. McGann, 493 A.2d 452, 456-57 (N.H. 1985); State v. Bernson, 807 P.2d 309, 310-11 (Or. Ct. App. 1991).
See Roy, 771 F.2d at 59; Petrozziello, 491 N.E.2d at 633; Bernson, 807 P.2d at 310.
NRS 178.620, art. 111(d); NRS 178.620, art. IV(e). The identical provision appears in both Article III and Article IV.
See State v. Burrus, 729 P.2d 926, 934 (Ariz. Ct. App. 1986); Shanks v. Com., 574 S.W.2d 688, 690 (Ky. Ct. App. 1978).
NRS 178.620, art. I; United States v. Reed, 620 F.2d 709, 711 (9th Cir. 1980).
See Burrus, 729 P.2d at 934.
533 U.S. at 152-57.
Id. at 151.
Id.
Id.
Id. at 153-57.
Dissenting Opinion
dissenting:
I dissent because I believe we should fashion a rule that gives effect to the express purpose of the IAD — to provide for expeditious dispositions of outstanding charges against persons imprisoned in other jurisdictions
Applying these principles to the case at hand, I would not toll the 180-day time limit simply because Diaz filed the first motion to dismiss. The motion to dismiss did not, in and of itself, necessarily delay the trial. Since there is no evidence of intent to delay here, I would not toll the statutory 180-day time limit for the period of time from when Diaz’s IAD demand was received until his motion to dismiss was improvidently granted by the district court. Obviously, however, the time should be tolled from the time the motion to dismiss was granted until reversed by this court and the remittitur issued.
When this court reversed the case and prosecution was renewed, Diaz demanded that he be brought to trial, and he filed a second motion to dismiss. Again, there is nothing that demonstrates that this motion was brought to delay the court in bringing this case to trial. Thus, that time should not have been tolled either.
By not tolling the time when the two motions to dismiss were pending before the district court, the total time it took to bring this defendant to trial after his IAD demand was well over 200 days, and thus in violation of the IAD’s 180-day time limit. Accordingly, I would vacate the judgment of conviction entered against Diaz and remand for the district court to dismiss the charges.
The rule I would prefer to adopt balances the purpose of the IAD with the realities of bringing a defendant to trial in six months.
See NRS 178.620, art. I.
Cf. U.S. v. Whiting, 28 F.3d 1296, 1307 (1st Cir. 1994) (noting that the time period in disposing of a pretrial motion should not toll the 180-day time limit when the defendant timely advises the district court that he or she is claiming the IAD’s protections and the district court took more time than was necessary to resolve the motion).