People v. Higinbotham, 83SA494

• Decision Date: 21 January 1986
• Docket Number: No. 83SA494,83SA494
• Citation: 712 P.2d 993
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Steven R. HIGINBOTHAM, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 993

712 P.2d 993

The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Steven R. HIGINBOTHAM, Defendant-Appellee.

No. 83SA494.

Supreme Court of Colorado En Banc.

Jan. 21, 1986.

Dennis E. Faulk, Dist. Atty., Roger B. Larsen, Asst. Dist. Atty., Canon City, Steven B. Rich, Deputy Dist. Atty., Fairplay, for plaintiff-appellant.

Simons & Iuppa, Barney Iuppa, Colorado Springs, for defendant-appellee.

LOHR, Justice.

The People appeal from a judgment of the Fremont County District Court dismissing an information charging the defendant, Steven R. Higinbotham, with escape. ¹ The district court held that dismissal was required because Higinbotham, a prisoner, had not been informed promptly of the charge pending against him and of his right to request a final disposition of the charge as required by section 16-14-102(2), 8 C.R.S. (1978). We reverse and remand for reinstatement of the charge and for further proceedings.

I.

On August 17, 1982, Higinbotham escaped from the Fremont Correctional Facility in Canon City. He was back in the custody of law enforcement officers by December 9, 1982, and was returned to the department of corrections on December 10. On January 17, 1983, Higinbotham was charged by information in Fremont County District Court with one count of escape. On January 25, the department of corrections received a detainer advising of the escape charge and requesting notification to the Fremont County Sheriff before Higinbotham's release from imprisonment.

Section 16-14-102(2), 8 C.R.S. (1978), part of the Uniform Mandatory Disposition of Detainers Act (Uniform Act), provides:

It is the duty of the superintendent of the institution where the prisoner is confined to promptly inform each prisoner, in writing, of the source and nature of any untried indictment, information, or criminal complaint against him of which the superintendent has knowledge, and of the prisoner's right to make a request for final disposition thereof.

Under the Uniform Act, a prisoner may request final disposition of any untried charge pending against him in Colorado on the basis of which a detainer has been lodged. § 16-14-102(1), 8 C.R.S. (1978). See People v. Bolin, 712 P.2d 1002 (Colo.1986). Within ninety days after the court and the prosecuting official receive such a request in writing, the prisoner must be brought to trial or the charges against him shall be dismissed with prejudice. § 16-14-104, 8 C.R.S. (1978). The ninety-day period can be extended for good cause or by stipulation. Id.

Higinbotham appeared in district court on January 26, 1983, for an advisement concerning the escape charge against him. He returned to district court on February 17, and counsel was appointed to represent him. On March 7, a preliminary hearing was held, and probable cause was found to try Higinbotham on the escape charge. However, it was not until March 8, 1983, forty-two days after the department of corrections received the detainer, that officials of the department notified Higinbotham of the existence of the detainer and of his right under the Uniform Act to request final disposition of the charge.

After notification, Higinbotham did not request final disposition of the pending charge pursuant to section 16-14-102(1). Rather, in late November of 1983, Higinbotham filed a motion to dismiss the charge against him for violation of the prompt notification requirement of section 16-14-102(2).

The district court held a hearing on Higinbotham's motion to dismiss on December 5, 1983. The court determined that the forty-two-day delay in notification of Higinbotham by the department violated the prompt notification requirement of section 16-14-102(2). The court then concluded that the appropriate sanction for this violation was dismissal of the escape charge.

II.

On appeal, the People do not challenge the district court's determination that the notification of Higinbotham was not "prompt" within the meaning of section 16-14-102(2). However, they contend that Higinbotham's failure to request final disposition of the charge pursuant to section 16-14-102(1) renders the untimely notification of no significance. In other words, because of Higinbotham's failure to seek speedy disposition of the charge once he was informed of his rights under the Uniform Act, the People argue that Higinbotham has waived the right to assert that the charge should be dismissed as a result of the failure of the department to notify him promptly as required by section 16-14-102(2). We reject this argument. However, we do not agree with the district court's conclusion that the violation of the prompt notification requirement mandated automatic dismissal of the escape charge against Higinbotham without regard to whether he was prejudiced by the violation.

A.

Nothing in the Uniform Act, or in our prior case law construing that act, obligates a defendant to request final disposition of an untried criminal charge against him pursuant to section 16-14-102(1) before the defendant can file a motion to dismiss that charge because of a violation of the prompt notification requirement of section 16-14-102(2). A request by a prisoner for disposition of an untried criminal charge under section 16-14-102(1) triggers the obligation of the superintendent of the institution in which the prisoner is confined to transmit specified information to the court having jurisdiction of the untried offense and to the prosecuting official. § 16-14-103, 8 C.R.S. (1978). See People v. Bean, 650 P.2d 565 (Colo.1982). Receipt of these materials by the court and prosecutor in turn initiates a ninety-day period within which the prisoner must be brought to trial, failing which the charge must be dismissed. § 16-14-104, 8 C.R.S. (1978). This set of obligations and consequences is additional to and distinct from the duty of the superintendent to promptly inform the prisoner of a pending charge under section 16-14-102(2).

The People argue that the prompt notification requirement of section 16-14-102(2) simply supplements and gives meaning to a prisoner's right to be tried within ninety days of a request for final disposition of a detainer. As a result, the argument proceeds, unless a prisoner pursues his right to request final disposition under section 16-14-102(1) there can be no remedy for a violation of the prompt notice requirement of section 16-14-102(2). But, to require that a prisoner file a request for final disposition of an untried charge before he can move for dismissal of the charge due to an alleged failure of prompt notification would ignore the fact that lack of prompt notification is an independent violation of the Uniform Act, preventing a prisoner from learning of the right to seek prompt disposition of pending charges that are the subject of a detainer. There is no indication that the legislature intended that such a violation could be cured by a prompt final disposition following a request by the prisoner after tardy notice. Thus, there is no reason in the language or purpose of the statute to require that a prisoner request final disposition of a charge as a condition precedent to filing a motion to dismiss the charge because of an alleged violation of the prompt notification requirement of section 16-14-102(2).

B.

After reviewing the statute, the purposes of the Uniform Act and our prior decisions, we conclude that a violation of the prompt notification requirement in section 16-14-102(2) does not mandate an automatic dismissal of the charges against a defendant.

Section 16-14-102(3) provides that if the superintendent of the institution in which the prisoner is confined fails to inform the prisoner of the source and nature of untried charges against the prisoner and of the prisoner's rights under the Uniform Act, as required by subsection (2), within one year after a detainer has been lodged with the institution based on those charges, then the prisoner shall be entitled to a dismissal of the charges underlying the detainer. The directive to dismiss is mandatory. It is irrelevant that the prosecution might be able to prove that the defendant did not suffer any prejudice from the delay. Here, however, although Higinbotham was not "promptly" informed of the existence of the detainer and of his rights under the Uniform Act as required by section 16-14-102(2), he was informed less than one year after the detainer was lodged--the period of delay was forty-two days to be exact. Thus, dismissal of the escape charge against Higinbotham is not mandated explicitly by the Uniform Act. To decide what sanction, if any, is to be imposed for this violation of section 16-14-102(2), we must begin with an examination of the purposes furthered by the Uniform Act.

We have often stated that the Uniform Act is one of several Colorado statutes implementing the speedy trial rights guaranteed to a defendant under Article II, Section 16, of the Colorado Constitution and under the Sixth and Fourteenth Amendments to the United States Constitution. E.g., People v. Lewis, 680 P.2d 226, 228 (Colo.1984); People v. Bean, 650 P.2d at 567; People v. Swazo, 199 Colo. 486 489, 610 P.2d 1072, 1074 (1980). However, the primary purpose of the Uniform Act, as with its counterpart, the Interstate Agreement on Detainers (IAD), ² is to provide a mechanism for prisoners to insist upon speedy and final disposition of untried charges that are the subjects of detainers so that prison rehabilitation programs initiated for the prisoners' benefit will not be disrupted or precluded by the existence of these untried charges. See People v. Yellen, 704 P.2d 306, 311-12 (Colo.1985); People v. Lewis, 680 P.2d at 229-30. See also United States v. Mauro, 436 U.S. 340, 349-56, 98 S.Ct. 1834, 1841-45, 56 L.Ed.2d 329 (1978) (analyzing the purposes of the IAD); United States v. Ford, 550 F.2d 732, 737-41 (2nd Cir.1977) (same), aff'd sub nom., United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); ...