Brimer v. State

• Decision Date: 12 June 1965
• Docket Number: No. 44102,44102
• Citation: 402 P.2d 789,195 Kan. 107
• Parties: Otis E. BRIMER, Also Known as Otis Elmer Brimer, Appellant, v. The STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

Page 789

402 P.2d 789

195 Kan. 107

Otis E. BRIMER, Also Known as Otis Elmer Brimer, Appellant, v. The STATE of Kansas, Appellee.

No. 44102.

Supreme Court of Kansas.

June 12, 1965.

Syllabus by the Court

1. The Uniform Mandatory Disposition of Detainers Act (K.S.A. 62-2901 et seq.) supplements section 10 of our Bill of Rights, and is to be regarded as rendering the constitutional guaranty of a speedy public trial effective, and constitutes a legislative definition of what is under the circumstances a reasonable time to bring an accused to trial.

2. To obtain the right of a speedy public trial provided by section 10 of our Bill of Rights, as legislatively defined by the Uniform Mandatory Disposition of Detainers Act, it is incumbent upon the accused incarcerated in a penal institution of this state to comply with all provisions of the Act, including the preparation of his written request for disposition of detainer to be addressed to the court in which the indictment, information or complaint is then pending against him and to the county attorney charged with the duty of prosecuting it.

3. Where an accused who is confined in the Kansas State Penitentiary prepares a written request for disposition of detainer and addresses such request to a court other than the court in which the criminal charges against him are then pending, his failure to comply with the Act does not relieve him of the responsibility of the offenses involved, or require the state to bring him to trial within the time specified in K.S.A. 62-2903, or deprive the district court of jurisdiction to accept his pleas of guilty and find him guilty on said pleas, or to sentence him to confinement as prescribed by law.

4. Where an accused, such as described in paragraph 3 of the syllabus, fails to comply with the Uniform Mandatory Disposition of Detainers Act in the manner there specified, and thereafter enters his voluntary pleas of guilty in the district court, he waives his right to question whether he had a speedy public trial.

5. The record in an action under K.S.A. 60-1507 is examined, and it is held: The district court did not err in denying the defendant relief, or in refusing to set aside his conviction and sentence made and entered on March 17, 1961.

Richard E. Blackwell, Salina, argued the cause and was on the briefs for appellant.

John Weckel, Salina, argued the cause, and Robert C. Londerholm, Atty. Gen., Topeka, and Bill Crews, County Atty., Salina, were with him on the briefs for appellee.

FATZER, Justice.

This appeal arises out of the provisions of K.S.A. 60-1507, whereby the appellant, who is presently confined in the Kansas State Penitentiary, sought to vacate and set aside an alleged void sentence of the district court of Saline County entered March 17, 1961, upon his pleas of guilty to two counts of forgery in the second degree. Relief was denied by the district court, hence this appeal.

The facts are not in dispute. On August 10, 1960, a complaint was filed in the city court of Salina, Kansas, charging the appellant, hereafter referred to as defendant, with two counts of forgery in the second degree. On that same day, a warrant for the defendant's arrest was duly issued to the sheriff of Saline County on the complaint. At the time the complaint was filed and the warrant issued, the defendant was duly and lawfully confined in the Kansas State Penitentiary at Lansing, Kansas. A detainer was issued notifying the warden of the Kansas State Penitentiary of the pendency of the criminal complaint in the city court of Salina, Kansas.

On August 25, 1960, the defendant, through the warden, attempting to comply with the Uniform Mandatory Disposition of Detainers Act (K.S.A. 62-2901 et seq.) caused a request for disposition of the detainer placed against him to be sent by certified mail to the sheriff of Saline County, the district court of Saline County, and the county attorney.

On February 24, 1961, the defendant was returned from the penitentiary and appeared before the judge of the city court of Salina; he waived preliminary examination on both counts of forgery in the second degree then pending against him, and the city court bound him over to the district court to stand trial on those charges.

On March 9, 1961, an information was filed in the district court charging the defendant with two counts of forgery in the second degree. On March 14, 1961, the defendant was brought before the district court and it being made to appear to the court that the defendant did not have counsel and that he desired the court to appoint counsel to represent him in that cause, the court appointed Mr. Harold L. Smither, a member of the Bar of Saline County, to represent the defendant.

On March 17, 1961, the defendant and his counsel appeared before the district court for arraignment; and upon being asked by the court how he desired to plead to the charges of forgery in the second degree, the defendant entered his plea of guilty to each of said charges. Thereupon, the court sentenced the defendant to confinement in the Kansas State Penitentiary for a period of not more than ten years on each count pursuant to G.S.1949, 21-631, the term of each sentence to run concurrently with the other and with the remaining sentence under which the defendants was then serving in the Kansas State Penitentiary.

On February 3, 1964, the defendant filed a petition for a writ of habeas corpus in the district court of Saline County, alleging that he had fully complied with the requirements of the Uniform Mandatory Disposition of Detainers Act and that the failure of the authorities of Saline County to bring him to trial before the expiration of the period of time fixed in the Act rendered the convictions of March 17, 1961, illegal and void, and the district court of Saline County was without jurisdiction to impose sentence upon him.

On February 7, 1964, the district court permitted the defendant to proceed in forma pauperis, set his petition for hearing on February 21, 1964, and entered an order which was served upon the defendant, ordering him to submit to the court prior to the hearing any and all documentary or written evidence available to him in support of his allegations of compliance with the Uniform Mandatory Disposition of Detainers Act, and specifically, to show proof of mailing of the request for disposition of detainer to the court in which the indictment, information, or complaint was pending against him and the manner and date of mailing.

On February 18, 1964, the district court appointed Mr. Byran J. Hoffman, a practicing attorney of Salina, to represent the defendant.

On February 21, 1964, the court found that the relief asked for by the defendant in his petition for a writ of habeas corpus was in effect a motion for relief under the provisions of K.S.A. 60-1507, and ordered that the defendant's petition be treated as a motion for relief thereunder. Upon request of defendant's counsel, the hearing on the motion was continued until March 9, 1964.

On that date, the court found that the defendant's application under the Uniform Mandatory Disposition of Detainers Act was directed to the district court of Saline County and that all matters then pending against him relating to the offenses of forgery in the second degree were contained in the complaint then pending in the city court of Salina and no other court; that none of the notices requesting disposition of the detainer were mailed by him through the warden to the city court of Salina; that the defendant did not comply...