STATE of South Dakota, Plaintiff and Respondent, v. Albert LOOZE, Defendant and Appellant.
No. 12457.
Supreme Court of South Dakota.
Argued Sept. 14, 1978. Decided Jan. 4, 1979.
273 N.W.2d 177
MORGAN, Justice.
Steven W. Sanford, of Braithwaite & Cadwell, Sioux Falls, for defendant and appellant.
MORGAN, Justice.
The sole issue presented on this аppeal is whether appellant was entitled to dismissal of the complaint against him for violation of his rights under the Interstate Agreement on Detainers (IAD) adopted by the legislature as
The IAD has been adopted in nearly every state and in the federal jurisdiction. While this is a case of first impression before this Court, numеrous cases have been written on the various aspects of the IAD, most of which agree that it is designed “[t]o implement the right to a speedy trial and to minimize the interference with a prisoner‘s treatment and rehabilitation . . . .”1
The IAD is triggered by the filing of a detainer by a state, thereinafter termed the “receiving state,” with the state which has the prisoner in custody. The latter state is thereafter referred to as the “sending state.” Under the Act, there are three alternative procedures. First, the prisoner may request disposition of the charges contained in the detainer. In so doing, he waives extradition but places the obligation on the receiving state to try him and return him to the sending state within 180 days of his request for disposition. The second alternative is where the receiving state follows up the filing of a detainer with a written request that the sending state make the prisoner available for prosecution of the charges stated in the detainer. The sending state must then either disapprove the request within thirty days or approve it. If it is approved, the receiving state is obliged to complete the trial of the matter within 120 days from the arrival of the prisoner in the receiving state‘s jurisdiction. If he is returned to the sending state before completion of the prosecution, the Act requires the imposition of the sanction of dismissal. The third alternative is where neither the prisoner nor the receiving state requests disposition. The matter then goes its usual route and the receiving state will simply be notified prior to release of the prisoner upon completion of his term in the sending state.
With respect to federal prisoners under the first two alternatives, the receiving state is entitled to temporary custody as provided in the Act, or the prisoner may be retained in federal custody at the place of trial.
In reviewing the fact situation, we note first of all that at no time did appellant request disрosition of the South Dakota charges. Appellant‘s contention is that the State, by filing the detainer with the federal authorities and subsequently issuing and serving the writ of habeas corpus ad prosequendum, chose the second alternative and was therefore required to try him within 120 days and before returning him to the sending state. He then contends that his return to the federal authorities for prosecution in Texas was a “return to the sending state” which requires imposition of the sanction of dismissal of the State‘s charges. We disagree.
We hold that the provisions of the IAD do not apply to appellant because the provisions of the IAD state that it applies only to a “prisoner” who is “serving a term of imprisonment” (Article IV(e)—
We agree with the Third Circuit Court of Appeals in the recent case of United States v. Dobson, 585 F.2d 55, decided August 2, 1978, wherein that Court held:
[A] pretrial detainee “has no immediate interest in any institutional treatment or program of rehabilitation” [citаtions omitted]. This lack of interest obviously stems from the uncertain and contingent nature of a confinement which is dependent both upon the outcome of trial and the imposition of a jail sentence . . . .
Also, the Sixth Circuit Court of Appeals, in United States v. Roberts, 548 F.2d 665 (6th Cir. 1977), stated:
[T]he Agreement is only concerned that a sentenced prisoner who has entered into the life of the institution to which he has been committed for a term of imprisonment not have programs of treatment and rehаbilitation obstructed by numerous absences in connection with successive proceedings related to pending charges in another jurisdiction. (548 F.2d at 670, 671)
By absenting himself from the hospitality of the federal authorities at Odеssa, appellant himself interfered with his program of treatment and rehabilitation.2 Appellant was not moved to Sioux Falls in response to the State‘s detainer or writ. He was there because he had esсaped from a Texas institution and had the misfortune to be recaptured there. While there he was in federal custody at all times. Federal authorities permitted the State to proceed with the prosecution without change of custody. The federal authorities then issued a writ returning appellant to Texas to face a charge other than that for which he had previously been incarcerated. No dеtainer was ever filed by the federal authorities. Since appellant was at all times in their custody, they hardly needed one. The State had no right to contest the removal.3 The thirty-day disapproval periоd did not exist. Thus, we do not have a case of shuttling back and forth which interfered with appellant‘s treatment and rehabilitation programs and which the IAD forbids.
Nor can appellant complain that he was not givеn a speedy trial. When the South Dakota detainer was filed, he did not elect to exercise his option to request disposition. When he was later recaptured in South Dakota and readily available tо South Dakota authorities, they moved with dispatch to prosecute their case. They were only prevented from doing so by the fact that the federal authorities were likewise mov
So, while the IAD must be applied liberally to effectuate the purposes for which it was adopted, such liberal interpretation does not extend the Act beyond its clear intent, as would be necessary to sustain appellant‘s contention.
Alternatively, assuming arguendo that the IAD was triggеred by the State‘s action of filing the writ of habeas corpus ad prosequendum, the right to dismissal upon which appellant relies arises when the “trial is not had . . . prior to the prisoner‘s being returned . . . pursuant to
Accordingly, we affirm the conviction.
WOLLMAN, C. J., and DUNN and PORTER, JJ., concur.
ZASTROW, J., concurs specially.
ZASTROW, Justice (concurring specially).
I concur in the result on the alternative grounds stated in the majority opinion. It appears to me that the provisions of the Interstate Agreement on Detainers applied to the defendant when he was turned over to the South Dakota authorities on June 8, 1977. Had South Dakotа voluntarily returned him to the federal authorities before the state trial,