Osborne v. Van Cleave
| Decision Date | 29 July 1968 |
| Docket Number | No. 23054,23054 |
| Citation | 443 P.2d 988,166 Colo. 398 |
| Parties | Francis D. OSBORNE, Plaintiff in Error, v. Guy F. VAN CLEAVE, Defendant in Error. |
| Court | Colorado Supreme Court |
Michael F. Morrissey, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., George E. DeRoos, Asst. Atty. Gen., Denver, for defendant in error.
This writ of error is directed to a judgment of the District Court of Adams County ordering the sheriff of said county to turn over plaintiff in error (hereinafter called Osborne) to the proper authorities of the State of Nebraska under an extradition warrant issued by the Governor.
The Attorney General has confessed error, stating that, in his opinion, the procedures followed in the lower court failed to conform to statutory requirements. We agree.
C.R.S.1963, 60--1--10, directs that a person arrested under an extradition warrant be taken forthwith before a judge of a court of record, who shall inform him of the charges against him and of his right to counsel. It further provides:
It is evident from the wording of the provision above quoted that the statute contemplates a hearing on the legality of the prisoner's detention, if he requests one, and that such a hearing can be had only when a writ of habeas corpus has been duly applied for by the prisoner and issued by the court. Capra v. Miller, 161 Colo. 448, 422 P.2d 636; Krutka v. Bryer, 150 Colo. 293, 372 P.2d 83.
In the instant case, although Osborne had applied for a writ of habeas corpus, no such writ was in fact ever issued by the trial court. As a result, although defendant in error, as sheriff of Adams County, was served with a summons and a copy of the 'Petition for Writ of Heabeas Corpus,' no Writ of Habeas Corpus was ever served on the sheriff, nor was any process of any kind issued to the agent of the demanding state.
C.R.S.1963, 65--1--1, provides that when application is made to a court for a writ of habeas...
To continue reading
Request your trial
- Associated Mortg. Corp. v. Weaver (In re Weaver)
- Harmon Cable Communications of Nebraska Ltd. Partnership v. Scope Cable Television, Inc.
-
State v. Smith
...legality of the prisoner's detention can be had only when he or she has applied for a writ of habeas corpus. See Osborne v. Van Cleave, 166 Colo. 398, 443 P.2d 988 (1968); Capra v. Miller, 161 Colo. 448, 451, 422 P.2d 636 (1967); Krutka v. Bryer, 150 Colo. 293, 372 P.2d 83 (1962); In re Kje......
-
Cardiel v. Brittian
...issue a writ of habeas corpus forthwith. § 13-45-101(1); People v. Calyer, 736 P.2d 1204, 1207 (Colo.1987); Osborne v. Van Cleave, 166 Colo. 398, 400, 443 P.2d 988, 989 (1968). Upon return of the writ, the court must set a hearing. § 13-45-103(1); Calyer, 736 P.2d at 1207. "Because a habeas......
-
Interstate Rendition Under the Uniform Criminal Extradition Act
...1973, § 16-19-111. 100. Id. 101. Id. 102. Id. 103. Capra v. Miller, 160 Colo. 448, 422 P.2d 636 (1967). 104. Osborne v. Van Cleave, 166 Colo. 398, 443 P.2d 988 (1968). 105. Krutka v. Bryer, 150 Colo. 293, 372 P.2d 83 (1962). 106. Luker v. Koch, supra, note 87; Eathorne v. Nelson, supra, not......
-
Full Compensation, Not Overcompensation: Rethinking Prejudgment Interest Offsets in Washington
...1258, 1261-62 (Ariz. Ct. App. 1974); Waverly Taylor, Inc. v. Polinger, 583 A.2d 179, 184 (D.C. 1990); York Plumbing and Heating Co., 443 P.2d at 988; Farrington v. Freeman, 99 N.W.2d 388, 392 (Iowa 1959); Misco Leasing, Inc. v. Bush, 490 P.2d 367, 370 (Kan. 1971) (finding that when "a plain......