Richerson v. State

• Decision Date: 21 April 1967
• Docket Number: No. 9751,9751
• Citation: 428 P.2d 61,91 Idaho 555
• Parties: Rowan G. RICHERSON, Plaintiff-Appellant, v. The STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 61

428 P.2d 61

91 Idaho 555

Rowan G. RICHERSON, Plaintiff-Appellant, v. The STATE of Idaho, Defendant-Respondent.

No. 9751.

Supreme Court of Idaho.

April 21, 1967.

Rehearing Denied May 23, 1967.

William J. Brauner, Caldwell, for appellant.

Allan G. Shepard, Atty. Gen., and David A. Frazier, Asst. Atty. Gen., Boise, for respondent.

McFADDEN, Justice.

This appeal presents for resolution the question whether following request for a speedy trial by an accused, the refusal of the State to initiate procedures under 18 U.S.C.A. § 4085 for return of the accused, who is an inmate in a federal correction institution, to this state for trial on a criminal charge deprives such accused of his right to a speedy trial guaranteed by U.S. Const. Amend. 6, cl. 1, and also by Idaho Const. Art. 1, § 13.

Appellant Richerson, on June 29, 1965, submitted to the District Court for Canyon County, his motion entitled 'Motion for a Speedy Trial or in the Alternative Dismissal of Charges and Detainer Warrant.' Subsequently such motion and other instruments were filed in that court. Appellant alleged that he was charged by complaint filed in the Justice Court, Nampa Precinct of Canyon County, with the crime of forgery, a felony, and that a warrant for his arrest issued July 24, 1964; that thereafter on April 6, 1965, a detainer warrant was filed against him while he was incarcerated in the federal penitentiary at Leavenworth, Kansas. He also alleged that he wrote a letter to the Canyon County Sheriff, who delivered it to the Nampa City Chief of Police who signed the criminal complaint and filed the detainer warrant against him. In this letter, appellant sought information as to whether an indictment or information had been filed against him. Appellant also wrote the prosecuting attorney of Canyon County on April 26, 1965, June 3, 1965, and June 8, 1965, asking for information and requesting a speedy trial on the charge. Appellant alleged he received no replies to those letters; he further alleged that as a result of the detainer warrant filed with the penitentiary officials, he was deprived of any opportunity to be transferred to a penitentiary other than one of maximum security and that he was under emotional upset and distress. Appellant's motion was submitted by himself without the assistance of counsel. See: Johnson v. State, 85 Idaho 123, 376 P.2d 704 (1962).

The trial court, by letter, advised appellant it had no jurisdiction over this case at this state of the proceedings. Appellant then submitted a motion for rehearing, following which motion the trial court by memorandum decision and order dismissed appellant's petition from which order he perfected this appeal. Prior to this appeal, appellant was not represented by counsel, but on this appeal appellant is represented by appointed counsel.

In determining whether appellant's petition is sufficient under the attack made upon it, this court must accept all allegations of fact as true. Johnson v. State, 85 Idaho 123, 376 P.2d 704 (1962); Mahaffey v. State, 87 Idaho 228, 392 P.2d 279 (1964).

Appellant contends that his petition was sufficient for the trial court to grant the relief prayed for, i. e., either to bring him before the court for trial, or to dismiss the complaint and remove the detainer warrant.

The respondent, State of Idaho, however, contends that the dismissal of the petition was correct, asserting that under the facts alleged, there was no violation of the right to a speedy trial as guaranteed by Idaho Const. Art. 1, § 13. The reasoning relied upon by respondent is that appellant, who is incarcerated in the federal penitentiary, is under the exclusive control of his person by a separate and distinct sovereignty, and is beyond the jurisdiction of any of the officials of this state. Further, that even though the Federal Government, pursuant to 18 U.S.C.A. § 4085, might have waived its exclusive control of the prisoner and granted a request by the state for custody of the defendant for the purpose of trial, whether such waiver would or would not be granted is dependent upon the discretion of a federal officer, and that thus there can be no violation on the part of this state's officers of the appellant's right to a speedy trial.

Respondent's position is well expressed in the case of Ex parte Schechtel, 103 Colo. 77, 82 P.2d 762, 118 A.L.R. 1032 (1938). That court recognized that a state may not deny an accused person a speedy trial by reason of the circumstance that he is incarcerated in one of the state's penal institutions under a prior conviction and sentence in a court of that state. (See: Jacobsen v. Winter, 91 Idaho 11, 415 P.2d 297 (1966).) However, that court, distinguishing between the case of an accused held by penal authorities of the state and an accused held by penal authorities of the United States, stated:

'Obviously, a very different situation exists where, as here, the United States has first acquired jurisdiction and custody of the petitioner and at the time the state indictment was returned, as well as during the period of delay, the federal government, and not the state of Colorado, has had him under its exclusive control. Under such circumstances it would seem certain that unless, during the term of petitioner's federal sentence, an unqualified and absolute right reposed in the Colorado authorities to require the United States to permit the presence of the petitioner for trial before the Colorado court in which the indictment is pending, and without which presence no trial could be held, that the prosecuting officers of the state could not be charged with unreasonable delay in failing to proceed with the trial upon the state indictment. * * *.' 82 P.2d at 764.

The Colorado court concluded that the petitioner had not been denied his right to a speedy trial.

Other authorities that have reached the same conclusion as Ex parte Schechtel, supra, are: McCary v. State of Kansas, 281 F.2d 185 (10th Cir., 1960), cert. denied 364 U.S. 850, 81 S.Ct. 94, 5 L.Ed.2d 73; Accardo v. State, 39 Ala.App. 453, 102 So.2d 913 (1958); Ex parte Douglas, 54 Ariz. 332, 95 P.2d 560 (1939); In re Norman's Petition, 184 A.2d 601 (Del., 1962); State v. Larkin, 256 Minn. 314, 98 N.W.2d 70 (1959); Application of Melton, 342 P.2d 571 (Okl.Cr., 1959); Raine v. State, 143 Tenn. 168, 226 S.W. 189 (1920). To the same effect: Duncan v. State, 42 Ala.App. 509, 169 So.2d 439 (1964); Ford v. Presiding Judge, Twentieth Judicial Circuit, 277 Ala. 83, 167 So.2d 166 (1964); State v. Hall, 266 Minn. 74, 123 N.W.2d 116 (1963); Snider v. State, 418 P.2d 102 (Okl.Cr., 1966); Hobbs v. State, 417 P.2d 934 (Okl.Cr., 1966); Dreadfulwater v. State, 415 P.2d 493 (Okl.Cr., 1966). But see: State v. Heisler, 95 Ariz. 353, 390 P.2d 846 (1964), and State v. Kostura, 98 Ariz. 186, 403 P.2d 283 (1965), holding one in petitioner's circumstances may have a remedy by motion to dismiss the indictment when brought to trial on the State charge.

Authorities which have reached the conclusion, contrary to Ex parte Schechtel, supra, that a federal prisoner is entitled to have state authorities take reasonable steps to bring him to trial without undue delay, are: People v. Piscitello, 7 N.Y.2d 387, 198 N.Y.S.2d 273, 165 N.E.2d 849 (1960); State v. Patton, 76 N.J.Super. 353, 184 A.2d 655 (1965), aff'd 42 N.J. 323, 200 A.2d 493; State ex rel. Fredenberg v. Byrne, 20 Wis.2d 504, 123 N.W.2d 305 (1963); Commonwealth v. McGrath, 348 Mass. 748, 205 N.E.2d 710 (1965); Barker v. Municipal Court of Salinas Jud. Dist., 64 Cal.2d 806, 51 Cal.Rptr. 921, 415 P.2d 809 (1966).

A similar problem is presented when an accused is imprisoned in another state. Decisions which hold that a state has a duty to take steps necessary to secure a prompt trial for an accused held by authorities of another state are: Pellegrini v. Wolfe, 225 Ark. 459, 283 S.W.2d 162 (1955), People v. Bryarly, 23 Ill.2d 313, 178 N.E.2d 326 (1961). Contra, see: Cunningham v. State, 188 A.2d 359 (Del., 1962); Traxler v. State, 96 Okl.Cr. 231, 251 P.2d 815 (1952); Burton v. State, 214 Tenn. 9, 377 S.W.2d 900 (1964).

In federal courts the issue has been presented when a person accused in a federal court is incarcerated in a state institution. In Taylor v. United States, 99 U.S.App.D.C. 183, 238 F.2d 259, 261, it was held that the accused's incarceration did not 'excuse the Government's long delay in bringing him to trial here, in the absence of a showing that the Government, at a reasonably early date, sought and was unable to obtain his return for trial.' Contra, Nolan v. United States, 163 F.2d 768 (8th Cir., 1947).

Although respectable authority has come to an opposite conclusion, it is the conclusion of this court that the rule adopted by New York, New Jersey, Wisconsin, Massachusetts and California, as discussed in People v. Piscitello, State v. Patton, State ex rel. Fredenberg v. Byrne, Commonwealth v. McGrath, Barker v. Municipal Court of Salinas Jud. Dist., all supra, is the more logical. (See also: Pellegrini v. Wolfe, supra, and People v. Bryarly, supra). The reasons for this conclusion follow.

In Jacobsen v. Winter, 91 Idaho 11, 415 P.2d 297 (1966), this court held that where a prisoner sought a speedy trial his imprisonment in the state penitentiary under sentence for another crime was not good cause for the state to deny him his constitutionally guaranteed right to a speedy trial. This court also held in that case that the time within which an accused is to be secured in his right to a speedy trial must be computed from the time complaint is filed against him. The Supreme Court of the United States has recently held that by reason of the Fourteenth Amendment the right to a speedy trial as guaranteed by the Sixth Amendment of the Constitution of the United States applies to the states. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1. This United States Supreme Court decision was anticipated by the Supreme...