State v. KeenerState v. Keener
- Reporters:
- , ,
- Before:
- Owsley
The opinion of the court was delivered by
Owsley, J.:
This is an appeal from convictions for one count of aggravated burglary (
On September 20, 1974, a complaint was filed in Harvey County, Kansas, alleging defendant committed the above crimes. Federal charges arising from the same incident were filed at about the same time and on April 7, 1975, defendant pled guilty to those charges. He was subsequently sentenced to the federal penitentiary for one term of twenty-five years and two fifty-year terms. Defendant was placed in the U. S. Penitentiary at McNeil Island, Washington.
On May 9,1975, Sedgwick County filed a request for temporary *101 custody of defendant, pursuant to Article IV of the Agreement on Detainers so it might prosecute him on outstanding charges on another crime. Harvey County filed an identical request on August 6,1975. Two days later the federal warden offered custody of defendant to the State of Kansas as the Agreement provides. The offer was addressed to Sedgwick County, but listed the charges pending in Harvey County. On August 11, 1975, Harvey County accepted the offer of custody. Defendant arrived in Kansas on September 20, 1975. On September 22, 1975, defendant was arraigned in Harvey County and counsel was appointed. Thereafter defendant was returned to Sedgwick County where he had been jailed upon arriving in Kansas. On November 10, 1975, defendant pled guilty to the Sedgwick County charges. On December 3, 1975, Sedgwick County ordered defendant returned to McNeil Island despite the pending Harvey County charges which were known to Sedgwick County. Defendant was returned on December 9. One week later Harvey County learned of this situation and immediately attempted to regain custody of defendant. On January 16,1976, defendant filed a motion to dismiss the Harvey County charges, relying on Article IV (e) of the Agreement on Detainers. Defendant was returned to Kansas on January 20, 1976, and was later tried and convicted of the charges.
On appeal, defendant argues, inter alia, that the charges should have been dismissed because of the state’s violation of Article IV of the Agreement on Detainers. We agree. Article IV (e) of the Agreement states:
“(e) 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.”
The provisions of the act were triggered when the request for temporary custody was filed and the federal authorities gave up custody of defendant. (See, State v. Clark, 222 Kan. 65, 68, 563 P.2d 1028 [1977].) Both the state and federal governments are parties to the Agreement (Article II [a]) and they are bound by its terms. When the state returned defendant without having tried him on all the outstanding charges pending in this state defendant was entitled to have them dismissed with prejudice.
*102 While the sanction imposed may seem severe, it is mandated by the Agreement. Other jurisdictions faced with similar facts have reached the same conclusion. (See, United States v. Sorrell, 562 F.2d 227 [3d Cir. 1977]; United States v. Thompson, 562 F.2d 232 [3d Cir. 1977]; United States v. Cyphers, 556 F.2d 630 [2d Cir. 1977], cert. denied 431 U.S. 972, 53 L.Ed.2d 1070, 97 S.Ct. 2937; United States v. Mauro, 544 F.2d 588 [2d Cir. 1976]; United States ex rel. Esola v. Groomes, 520 F.2d 830 [3d Cir. 1975]; Commonwealth v. Merlo, 242 Pa. Super. 517, 364 A.2d 391 [1976].) The charges must be dismissed.
Defendant also raises two issues concerning the award of attorney’s fees pursuant to the aid to indigent defendants fund. (See,
The thrust of defendant’s argument is that he has a constitutional right to have his defense counsel adequately compensated, particularly in a case where the prosecution was “unlawful.” We find no support for the argument.
It is the moral and ethical obligation of the bar to make representation available to the public. (See, Canon 2, Code of Professional Responsibility, 220 Kan. cx.) Quite often, fulfillment of that obligation involves the representation of a client, particularly a criminal defendant, for little or no remuneration. Enactment of
Claims for fees submitted to the board of supervisors of panels to aid indigent defendants are considered by the board according *103 to the criteria set forth in the statutes and rules of this court. The decision of the board as to the amount of compensation to be awarded in any case is final. (Rule 404, Claims Under Indigent Criminal Defendants Act, 220 Kan. cviii.)
Finally, defendant challenges the constitutionality of the aid to indigent defendants recoupment statute,
Defendant argues the statute is unconstitutional because it does not provide for notice and a hearing, violating the due process clause. In support of his argument he cites Hillhouse v. City of Kansas City, 221 Kan. 369, 559 P.2d 1148 (1977); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 42 L.Ed.2d 751, 95 S.Ct. 719 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 40 L.Ed.2d 406, 94 S.Ct. 1895 (1974); Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983 (1972), reh. denied 409 U.S. 902, 34 L.Ed.2d 165, 93 S.Ct. 177; and Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L.Ed.2d 349, 89 S.Ct. 1820 (1969).
We find no constitutional infirmity in the recoupment statute. A defendant receives notice of the existence of the debt for legal services by certified mail at his last known address prior to the time the sum is made a judgment of record. He is given sixty days to pay the debt. Implicit in that sixty-day delay is the right to object to the judicial administrator concerning the amount of the expenditure. Even after the sum becomes a judgment the right to a hearing is present when the state attempts to collect the judgment by execution or garnishment. In either situation, the debtor has the right to be heard and, if he wishes, to contest the validity of the judgment. The right to contest a judgment at a collection *104 proceeding satisfies due process requirements. (See, United States v. Durka, 490 F.2d 478 [7th Cir. 1973]; Stroinski v. Office of Public Defender, 134 N J. Super. 21, 338 A.2d 202 [1975]. See also, People v. Amor, 12 Cal. 3d 20, 114 Cal. Rptr. 765, 523 P.2d 1173 [1974].)
The judgment as to the conviction on the criminal charges is reversed and the trial court is instructed to discharge the defendant. The judgment as to attorney fees is affirmed.
McFarland, J., dissents from Syl. 2 and corresponding parts of the opinion.