Dickey v. Circuit Court, Gadsden County, Quincy, Fla.

• Decision Date: 14 June 1967
• Docket Number: No. 35418,35418
• Citation: 200 So.2d 521
• Parties: Robert Dean DICKEY, Petitioner, v. CIRCUIT COURT, GADSDEN COUNTY, QUINCY, FLORIDA, Respondent.
• Court: Florida Supreme Court

Page 521

200 So.2d 521

Robert Dean DICKEY, Petitioner, v. CIRCUIT COURT, GADSDEN COUNTY, QUINCY, FLORIDA, Respondent.

No. 35418.

Supreme Court of Florida.

June 14, 1967.

J. Klein Wigginton, of Parker, Foster & Madigan, Tallahassee, for petitioner.

Earl Faircloth, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.

O'CONNELL, Justice.

Petitioner is presently confined in the federal penitentiary at Leavenworth, Kansas. A detainer warrant bottomed on a charge of armed robbery has been issued by the officials of Gadsden County, Florida and filed in the office of the Sheriff of Leavenworth County, Kansas. In his petition in this court petitioner asks that we command the Circuit Court in and for Gadsden County either to initiate proceedings available to it to secure his return to that court for trial on the charge there pending or withdraw the detainer warrant filed against him.

We issued the alternative writ directed to Honorable Hugh M. Taylor, as judge of said court. Judge Taylor filed a return to which is attached copies of orders entered in December, 1962, April, 1963 and April 1966. These orders denied petitioner the relief now sought in this proceeding. Thereafter the Attorney General, pursuant to F.S. Section 16.01, F.S.A., filed its brief in opposition to issuance of the peremptory writ. We then inquired of petitioner, who to this point had proceeded in proper person, if he wished this court to appoint counsel to represent him. On his request we appointed J. Klein Wigginton, Esq. of the Tallahassee Bar for this purpose. Mr. Wigginton has filed briefs and ably argued the petitioner's cause before us. His only compensation is the satisfaction gained in having aided in the proper administration of justice. We express our gratitude to Mr. Wigginton for his assistance in this cause.

In this cause we must determine four questions: (1) whether procedures are available through which the State of Florida, acting through its officers, can have petitioner returned to Gadsden County for a speedy trial; (2) whether petitioner has the right to demand the institution of these procedures; (3) whether mandamus is the appropriate method to be used to require that those procedures be instituted; and (4) whether the circuit court, i.e., the judge thereof, is the proper respondent.

The decision of the United States Supreme Court in Ponzi v. Fessenden, 1922, 258 U.S. 254, 42 S.Ct. 309, 66 L.Ed. 607, furnishes an affirmative answer to the first question. The court was there confronted with the certified question:

'May a prisoner, with the consent of the Attorney General, while serving a sentence imposed by a district court of the United States, be lawfully taken on a writ of habeas corpus, directed to the master of the House of Correction, who, as federal agent under a mittimus issued out of said District Court, has custody of such prisoner, into a state court, in the custody of said master and there put to trial upon indictments there pending against him?'

Answering this question in the affirmative, the court said,

'There is no express authority authorizing the transfer of a federal prisoner to a state court for such purposes. Yet we have no doubt that it exists and is to be exercised with the consent of the Attorney General. In that officer, the power and discretion to practice the comity in such matters between the federal and state courts is vested.'

The court brushed aside the objection that the state could not try a person who remained within the custody and jurisdiction of the United States, saying,

'This is a refinement which if entertained would merely obstruct justice. The prisoner when produced in the superior court in compliance with its writ is personally present. He has full opportunity to make his defense exactly as if he were brought before the court by its own officer. * * * The trial court is given all the jurisdiction needed to try and hear him by the consent of the United States, which only insists on his being kept safely from escape or from danger under the eye and control of its officer. This arrangement of comity between the two governments works in no way to the prejudice of the prisoner or of either sovereignty.'

The procedure described in the Ponzi case subsequently became well established. People v. Nokes, 1938, 25 Cal.App.2d 259, 77 P.2d 243; United States ex rel. Strewl v. Warden of Clinton Prison, D.C.N.D.N.Y.1937, 21 F.Supp. 502; United States ex rel. Moses v. Kipp, C.A. 7th 1956, 232 F.2d 147; Knowles v. Gladden, 1961, 227 Or. 408, 362 P.2d 763. Moreover, it operates with equal efficacy to make a state prisoner available for federal trial, United States v. Clinton, supra, and United States v. Kipp, supra, or for trial in another state. Pellegrini v. Wolfe, 1955, 225 Ark. 459, 283 So.2d 162. Indeed, on at least one occasion officials of the State of Florida honored such a request and produced a state prisoner for trial on a federal indictment. Harrell v. Shuttleworth, U.S.D.C.N.D.Florida 1951, 101 F.Supp. 408.

The second question--whether petitioner has the right to demand that the state undertake the procedures to return him for a speedy trial--is more difficult to answer. In Ponzi v. Fessenden, supra, and the other cited cases the sought for procedures were invoked against the wish of the accused, not at his instance. Since delays in criminal prosecution generally operate to the advantage of the accused and against the interest of the state, it is not surprising that most cases involving this question stem from prosecution efforts to obtain an accused for trial. Nevertheless, there is considerable logic as well as reliable precedent to support petitioner's position.

The basic issue here is obviously the right of the speedy trial guaranteed by our state and federal constitutions to one accused of crime. The state in its brief argues, in effect, that petitioner should not be heard to complain that he has not received a speedy trial on the Gadsden County charge because it is his criminal acts that led to his incarceration by the federal authorities which in turn prevent Florida giving him a speedy trial. In his order entered in December, 1962, denying petitioner the relief he seeks here, the respondent circuit judge gave as one of the reasons for his order that petitioner's '* * * absence from Florida and the delay in his trial is thus, in law, entirely voluntary on his part.' This reasoning seems to say that a person incarcerated for one crime has no right to demand the constitutionally promised speedy trial and no right to complain against its denial. We do not agree.

Our statutes recognize the right of a person serving a sentence of imprisonment in this state to demand a speedy trial of other criminal charges pending against him in Florida courts. F.S. § 915.02, F.S.A. There is no logical basis for denying this same right to one who is detained in the prison of another sovereign, unless that circumstance in itself operates in some way to prevent the grant of a speedy trial. As shown above there are established procedures, use of which can make a prisoner held by either the federal or state government available to the other for trial. F.S. Sec. 941.05, F.S.A. provides procedures for obtaining for trial here a person being held by a sister state. So incarceration by another sovereign does not in itself prevent the grant of a speedy trial on charges pending in Florida.

F.S. Chapter 915, F.S.A. which is designed to implement the right of speedy trial guaranteed by Section 11, Declaration of Rights, Florida Constitution, F.S.A., places on the accused the primary burden for bringing about a speedy trial. Yet it can hardly be said that the state has no obligation to perform this constitutional mandate. It is unnecessary that we attempt any definitive statement of the state's burden. It is sufficient to say that when an accused held by another sovereign makes demand for speedy trial in this state on charges forming the basis for a detainer warrant pending against him the state must initiate action to procure the presence of the accused for trial, unless the circumstances make it unreasonable for the state to do so. The question of reasonableness in each case requires consideration and balancing of interests of the accused and the state. It would seem that the principal factors would always be the cost and inconvenience to the state in following the procedures necessary to obtain the accused, transport him to Florida and return him to the holding sovereign as measured against the injury that the accused would suffer if trial in Florida were postponed until the expiration of sentence of the holding sovereign. If the term to be served elsewhere is relatively short it might well be that the injury to the accused would be relatively small and the state ought not be required to produce the accused until expiration of the term being served. But in all cases where the term being served has several years to run the denial of the important right of speedy trial for a period of years would outweigh the cost and inconvenience to the state. It must be remembered that as to charges not yet tried such an accused is innocent until proved guilty, and his rights relative to that charge are just as much entitled to protection as those of a citizen not incarcerated by another sovereign.

The use of the detainer warrant, which the Attorney General advises has no legal basis, has been the subject of judicial criticism. In the case of United States v. Candelaria, U.S.D.C.S.D.Calif.1955, 131 F.Supp. 797, that court focussed its opinion on the problems created for a prisoner, as it affects his rehabilitation, by a detainer warrant lodged against him by another sovereign. The court quoted extensively from the 'Handbook on Interstate Crime Control' which reflects the conclusions reached at the 1947 Meeting of Administrators of the Interstate Compact for the Supervision of Parolees and...