People ex rel. Dimas v. Shimp

• Decision Date: 15 April 1980
• Docket Number: No. 78-527,78-527
• Citation: 38 Ill.Dec. 519,403 N.E.2d 750,83 Ill.App.3d 150
• Parties: , 38 Ill.Dec. 519 PEOPLE of the State of Illinois ex rel. Gregory DIMAS, Petitioner-Appellant, v. Wayne SHIMP, Sheriff of DuPage County, and James R. Thompson, Governor of the State of Illinois, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

Page 750

403 N.E.2d 750

83 Ill.App.3d 150, 38 Ill.Dec. 519

PEOPLE of the State of Illinois ex rel. Gregory DIMAS Petitioner-Appellant, v. Wayne SHIMP, Sheriff of DuPage County, and James R Thompson, Governor of the State of Illinois Respondents-Appellees.

No. 78-527.

Appellate Court of Illinois, Second District.

April 15, 1980.

Serpico, Novelle, Dvorak & Navigato, Robert A. Novelle, Chicago, for petitioner-appellant.

J. Michael Fitzsimmons, State's Atty., Wheaton, William J. Scott, Atty. Gen., Chicago, Phyllis J. Perko, Jan Tuckerman, State's Attys. Appellate Service Commission, Elgin, for respondents-appellees.

VAN DEUSEN, Justice:

Petitioner, Gregory Dimas, brings this appeal from an order of the circuit court of DuPage County denying a writ of habeas corpus and ordering defendant extradited to the state of Nevada.

We affirm.

Petitioner was arrested by the respondent, Sheriff of DuPage County, on February 7, 1978, upon a fugitive from justice warrant issued out of DuPage County. On February 8, 1978, petitioner appeared before a judge. Bail was set, and he was held in custody in lieu of bond; the case was continued to March 8, 1978, the maximum time allowed. On March 8, 1978, the State asked for additional time and the matter was continued to April 7, 1978; bond was reduced to $10,000. On March 24, 1978, petitioner posted bail and was released. On April 7, 1978, the State moved to nolle pros and the matter was dismissed. At this time, petitioner advised the court that he was a narcotic addict in need of treatment and had delayed seeking treatment pending the outcome of the extradition proceedings. He stated that he would voluntarily commit himself to a one year treatment program for narcotic addicts at Tinley Park State Hospital. Petitioner subsequently voluntarily enrolled himself in a drug treatment program at the Tinley Park Drug Center after his release from the DuPage County jail.

The Governor's warrant was issued on April 14, 1978, at the request and demand of the Governor of Nevada, which was made on April 7, 1978. On June 26, 1978, petitioner filed a petition for a writ of habeas corpus asking the court to quash the governor's warrant. The trial court denied the petition. Petitioner contends that his petition for writ of habeas corpus should have been granted and extradition denied because the documents presented to support the governor's warrant were defective in that they were not in compliance with sections 3 and 23 of the Uniform Criminal Extradition Act (Ill.Rev.Stat.1977, ch. 60, pars. 20, 40.)

At the outset it must be stated that proceedings for the interstate extradition of criminals are controlled by the Federal Constitution and federal law. Section 2 of article IV of the Constitution of the United States provides, in part, that:

"A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." (U.S.Const., art. IV, § 2.)

The controlling federal statute (18 U.S.C. § 3182 (1976)) states, in relevant part, as follows:

"Whenever the executive authority of any State * * * demands any person as a fugitive from justice, of the executive authority of any State * * * to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State * * * charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor * * * of the State * * * from whence the person so charged has fled, the executive authority of the State * * * to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear. If no such agent appears within thirty days from the time of the arrest, the prisoner may be discharged."

The principle of federal supremacy in this area was succinctly stated by the Illinois Supreme Court in People ex rel. Hackler v. Lohman (1959), 17 Ill.2d 78, 84-85, 160 N.E.2d 792, 797, cert. denied (1960), 361 U.S. 963, 80 S.Ct. 591, 4 L.Ed.2d 544:

"While it is generally recognized that States may enact legislation ancillary to and in aid of this provision of the United States constitution and its supplementary Federal legislation, it is also well settled that such enactments must not be inconsistent with the constitutional purpose or restrict the summary exercise of the authority of the executive. (Biddinger v. Commissioner of Police, 245 U.S. 128, 38 S.Ct. 41, 62 L.Ed. 193; United States ex rel. McCline v. Meyering (7th Cir.) 75 F.2d 716; United States ex rel. Millet v. Babb, 1 Ill.2d 191, 115 N.E.2d 241; 22 Am.Jur., par. 9, pages 249, 250.) State legislation in conflict with the intent and meaning of the Federal constitutional provision is void. (People ex rel. Carr v. Murray, 357 Ill. 326, 192 N.E. 198.) 'Every State's right to punish its offenders must be assured and such offenders should not be accorded protective asylum by another State. Federal, rather than State control, is essential to avoid a diversity of requirements and procedures.' People ex rel. Millet v. Babb, 1 Ill.2d 191, 196, 115 N.E.2d 241.

These salutary principles are expressly recognized in the language of section 2 of the Uniform Criminal Extradition Act which provides: 'Subject to the provisions of this Act, the provisions of the Constitution of the United States controlling, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this State to have arrested and delivered up to the Executive Authority of any other state of the United States any person charged in that State with treason, felony, or other crime, who has fled from justice and is found in this State.' (Ill.Rev.Stat.1957, ch. 60, par. 19.) It is apparent, therefore, that the General Assembly intended that the procedures and requirements of the uniform act be consistent with the Federal constitution and its supplementary Federal legislation."

Since federal legislation in the field is not comprehensive, states are free to establish ancillary proceedings consistent with the federal scheme (People ex rel. Holmes v. Babb (1953), 414 Ill. 490, 493, 111 N.E.2d 316; People ex rel. Millet v. Babb (1953), 1 Ill.2d 191, 196, 115 N.E.2d 241) or even to provide for the surrender of fugitives on terms less exacting than those imposed by federal law (State ex rel. Sieloff v. Golz (1977), 80 Wis.2d 225, 258 N.W.2d 700; Glover v. State (1974), 257 Ark. 241, 515 S.W.2d 641; In re Austin (1971), 186 Neb. 815, 186 N.W.2d 723; Grano v. State (1969 Del.Super.), 257 A.2d 768; In re Morgan (1966), 244 Cal.App.2d 903, 53 Cal.Rptr. 642). States, however, cannot impose more stringent standards or refuse a demand for extradition on the basis of requirements not articulated by federal law. (Ex parte Arrington (1954 Mo.), 270 S.W.2d 39; State ex re. Cutshaw v. Smith (1953 Ohio App.), 127 N.E.2d 633; Ex parte Riccardi (1949), 68 Ariz. 180, 203 P.2d 627; In re Sanders (1937 Ohio App.), 31 N.E.2d 246, all of which hold various parts of the Uniform Criminal Extradition Act, which are not also requirements of federal law, inapplicable in extradition proceedings.)

Section 3 of the Uniform Criminal Extradition Act (Ill.Rev.Stat.1977, ch. 60 par. 20) provides as follows:

"No demand for the extradition of a person charged with crime in another state shall be recognized by the Governor unless in writing alleging, except in cases arising under Section 6, that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the Executive Authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the Executive Authority making the demand."

The Governor of Nevada's demand for extradition was in the form of a requisition issued upon the Governor of Illinois for the arrest and delivery of Gregory Dimas to an authorized agent of Nevada. The requisition stated that Gregory Dimas had been charged with the crime of sale of a controlled substance, that the crime had been committed in the County of Clark, Nevada, and that he had fled from justice in Nevada and was believed to be in Illinois. In the requisition, the Governor of Nevada certified as authentic the annexed application for requisition and the supporting documents. The supporting documents included a copy of the indictment of Gregory Dimas for the sale of a controlled substance, a certified copy of the bench warrant and two affidavits of police officer M. Hawkins.

Petitioner contends that the bench warrant which accompanied the demand was not properly certified and that the two affidavits of police officer M. Hawkins were not sworn to before a magistrate.

The bench warrant was properly certified as authentic by the Governor of Nevada. Neither the federal statute (18 U.S.C. § 3182 (1976)) nor section 3 of the Uniform Criminal Extradition Act (...