Gillard v. StateGillard v. State
Aрpellant, Willie Gillard, was indicted by the Bibb County, Alabama, Grand Jury in a two-count indictment for theft of property in the first degree and unauthorized use of a vehicle, in violation of §§
On April 5, 1985, appellant filed a motion to dismiss the indictment in the Circuit Court of Bibb County on the ground that the State had violated Article IV (e) of the Uniform Mandatory Disposition of Detainers Act because, while appellant was in the custody of federal authorities and serving a federal penitentiary sentence, the district attorney of Bibb County, pursuant to Article IV of the Act, requested and obtained temporary custody of appellant for disposition of the pending indictment in Bibb County, but the trial was not had, nor the indictment disposed of prior to his being returned to federal custody; therefore, аppellant alleged, the indictment was due to be dismissed with prejudice in accordance with said Article IV (e). This motion was denied. Appellant was tried before a jury on September 9 and 10, 1985. Prior to submission of the case to the jury, the count of the indictment charging unauthorized use of a vehicle was withdrawn on motion of the State and the case went to the jury on the remaining count. The jury found appellant guilty of theft of property in the first degree as charged, and the trial court sentenced him as a habitual offender to life imprisonment in the penitentiary. Appellant appeals his conviction and raises two issues.
First, he contends that the trial court committed reversible error in denying his motion to dismiss the indictment with prejudice.
The Alabama Legislature enacted the Uniform Mandatory Disposition of Detainers Act in 1978, adopting the Interstate Agreement on Detainers (Agreement). 1978 Ala. Acts 693, No. 590 (April 27, 1978);
The central provisions of the Agreement are Article III and Article IV. Article III sets forth the procedure by which a prisoner against whom a detainer has been filed can demand a speedy disposition of the charges giving rise to the detainer. If a prisoner demands a speedy trial pursuant to the guidelines of Article III, the jurisdiction which filed the detainer is required to bring him to trial within the Article III (a) time limit. Failure to comply will result in a dismissal of the outstanding charges, with prejudice. Article III (d) also requires the disposition of all outstanding charges in a jurisdiction prior to the return of the prisoner to the original plаce of incarceration. Any charges left untried after the prisoner has been returned to the original place of incarceration will be dismissed with prejudice. United States v. Mauro, supra; United States v. Dixon, supra; People v. Reyes, 98 Cal.App.3d 524, 159 Cal.Rptr. 572 (1979); Boyd v. State, 51 Md. App. 197, 441 A.2d 1133, 1137, aff‘d, 294 Md. 103, 447 A.2d 871 (1982), and cases cited therein.
Article IV provides a means by which a prosecutor, who has lodged a detainer against a prisoner in another participating jurisdiction, can secure temporary custody of a prisoner for disposition of the outstanding charges against the prisoner. Once a prosecuting authority has gained temporary custody over a prisoner by a “written request” to the jurisdiction of incarceration (Art. IV (a)), two limitations are placed on the requesting рrosecutor. Article IV (c) requires that trial must commence within 120 days of the prisoner‘s arrival in the requesting jurisdiction, unless a continuance is granted for good cause in open court with the prisoner or his counsel present. Article IV (e), which is sometimes referred to as the anti-shuttle or anti-shuffling provision of the Agreement, provides:
“If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner‘s being returned to the original place of imprisonment pursuant to Article V (e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.”
Article V (e) merely provides that the prisoner shall be returned to the sending state at the earliest practicable time consonant with the purposes of the Agreement. The
In the instant case, appellant contends that, pursuant to Article IV (e) of the Agreement, the indictment pending against him in the Bibb County, Alabama, circuit court should have been dismissed because he was returned from temporary custody to federal custody, which was his original place of incarceration, whilе under a detainer, without disposition of the State charges outstanding against him.
The record is not clear as to the procedure the parties followed in implementing the Agreement. There is no direct evidence of the filing of a detainer with the federal authorities by the State of Alabama. Appellant makes reference to such a detainer in his motion for a speedy trial and in his brief. The existence of a detainer is not disputed by the State. In fact, the State adopts appellant‘s statement of the case and facts in its brief. It would appear that by initiating a motion for speedy trial, appellant was attempting to proceed under Article III of the Agreement. If appellant initiated the request for disposition of the detainer under Article III, he apparently failed to fully comply with the provisions of the Agreement, or if he did, the record fails to disclose such compliance. There is no showing that the inmate‘s request was sent by registered or certified mail or that it was accompanied by a certificate of the appropriate official having custody of him. The record fails to disclose that the prosecuting authority or the appropriate court in the prosecuting officer‘s jurisdiction received aрpellant‘s motion for a speedy trial. We have held that there must be strict compliance by the prisoner with the requirements of Article III. Whitley v. State, 392 So.2d 1220 (Ala.Crim.App. 1980), cert. denied, 392 So.2d 1225 (Ala. 1981). Under Article III (b), a prisoner need only give or send a written request for final disposition of an outstanding detainer “to the warden, commissioner of corrections or other officiаl having custody of him” in order to completely fulfill his sole requirement under the Agreement. McCallum v. State, supra. However, when a prisoner chooses to by-pass the simple procedure provided in Article III (b), and attempts to deal directly with officials in the receiving state, he must satisfy the additional requirements of the Agreement which would normаlly be executed by officers in the sending state. McCallum v. State, supra; Whitley v. State, supra; State v. Grizzell, 584 S.W.2d 678 (Tenn.Cr.App. 1979). If appellant were proceeding under Article III and failed to provide the required certificate and send the request by registered or certified mail, he would fail to invoke the provisions of the Agreement.
If the State of Alabama, in the first instance, initiated the requеst for disposition of the detainer under Article IV, the
To summarize, appellant was indicted July 25, 1983, in Bibb County, Alabama. On or about October 12, 1984, the United States delivered temporary custody of appellant to the State of Alabama for the purpose of standing trial on the pending charges. Appellant was not tried, but was returned by the State of Alabama to the custody of the United States on October 25, 1984. His return to his original place of incarceration prior to his trial was not a return consonant with the purposes of the Agreement. We are inclined toward the majority view that the rights afforded a prisoner under the Agreement do not rise to the level of constitutionally guaranteed rights and can be waived, United States v. Eaddy, supra; United States v. Scallion, 548 F.2d 1168 (5th Cir. 1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978); United States v. Ford, 550 F.2d 732 (2d Cir. 1977), aff‘d sub nom. United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); State v. Moser, supra; State v. Grizzell, 399 So.2d 1091 (Fla.Dist.Ct. 1981); Webb v. State, supra. However, we find that no express or implied waiver of the anti-shuffling provisions appears in the lower court record. In light of the record before us, the mandatory nature of the statute, and the testimony of appellant and his counsel that they never asked for a continuance and were ready for trial, we reject consideration of the Attorney General‘s request that we remand the case for an evidentiary hearing to determine the reasons why appellant was returned to federal custody prior to trial.
Accordingly, we hold that the State violated Article IV (e), by returning appellant
In view of our holding above, we find it unnecessary to address the remaining issue.
The judgment of the trial court is reversed and the case remanded with instructions that the conviction and sentence be set aside, and the indictment dismissed with prejudice.
REVERSED AND REMANDED WITH INSTRUCTIONS.
All Judges concu