Simpson, Application of, 49963

• Citation: 2 Kan.App.2d 713,586 P.2d 1389
• Decision Date: 01 December 1978
• Docket Number: No. 49963,49963
• Parties: Application of Dean SIMPSON for a Writ of Habeas Corpus.
• Court: Kansas Court of Appeals

Page 1389

586 P.2d 1389

2 Kan.App.2d 713

Application of Dean SIMPSON for a Writ of Habeas Corpus.

No. 49963.

Court of Appeals of Kansas.

Dec. 1, 1978.

Syllabus by the Court

1. The limitations of K.S.A. 22-2715 and 22-2717 are to prevent the unreasonably lengthy periods of confinement of fugitives pending consummation of extradition proceedings by the demanding state. They do not restrict the time within which a governor's warrant may be issued or executed to the ninety-day period contained in those statutes.

2. Considering the requirements of Wilbanks v. State, 224 Kan. 66, 579 P.2d 132 (1978), it is Held that, in the absence of a showing that the factual information disclosed in an affidavit executed almost two years and five months after the issuance of the arrest warrant was presented to and considered by the magistrate before the issuance of that warrant, petitioner was not charged as required by the standards of the Fourth Amendment to the United States Constitution and Kan. Const. Bill of Rights, § 15.

John D. Osborn of Calihan, Green, Calihan & Loyd, Garden City, for appellant Dean Simpson.

Evan Nightingale, County Atty., and Curt T. Schneider, Atty. Gen., for appellee State of Kansas.

Before SPENCER, P. J., and ABBOTT and MEYER, JJ.

SPENCER, Judge:

This is an appeal from an order dissolving a writ of habeas corpus issued in an extradition proceeding. K.S.A. 22-2701, Et seq. At issue are: (1) Whether failure to arrest under warrant of the governor within the ninety-day period provided for commitment or bail in K.S.A. 22-2715 and 22-2717 renders that warrant void and unenforceable; and (2) whether the governor's warrant dated December 20, 1977, is valid.

On September 15, 1977, a complaint was filed in the District Court of Finney County alleging that petitioner was a fugitive from justice from the state of Missouri. A fugitive warrant was issued and petitioner was admitted to bail pursuant to K.S.A. 22-2716. His hearing was scheduled for October 16, 1977. The governor's warrant was not received by that date and, at the request of the state, continuances were granted pending receipt of the warrant. On December 16, 1977, since the governor's warrant still had not been received and more than ninety days had elapsed, the proceedings in Finney County were dismissed and petitioner was released.

Thereafter, on December 21, 1977, the governor's warrant did arrive and was forwarded to the Sheriff of Grant County for execution. Petitioner was arrested in that county on February 1, 1978, and immediately taken before a magistrate who admitted him to bail pending the filing of an application for writ of habeas corpus. The writ was issued March 2, 1978, and thereafter quashed upon hearing by the district judge in Grant County, who directed that the warrant be executed.

Petitioner's contention that failure to arrest under the governor's warrant within the ninety-day period of time provided by K.S.A. 22-2715 and 22-2717 operates as a bar to further extradition proceedings, appears to be one of first impression in Kansas. However, the issue has been considered in other jurisdictions and found to be without merit.

It is obvious that the sections of the Uniform Criminal Extradition Act referred to are to prevent the unreasonably lengthy periods of confinement of fugitives pending consummation of extradition proceedings by the demanding state. They do not restrict the period within which a governor's warrant may be issued or executed to the ninety-day period contained in those statutes. Glavin v. Warden, 163 Conn. 394, 311 A.2d 86 (1972); People ex rel. Vasquez v. Pratt, 24 Ill.App.3d 927, 322 N.E.2d 74 (1975); People ex rel. Gummow v. Larson, 35 Ill.2d 280, 220 N.E.2d 165 (1966); State ex rel. Brown v. Hedman, 280 Minn. 69, 157 N.W.2d 756 (1968); Bell v. Janing, 188 Neb. 690, 199 N.W.2d 24 (1972); In re Colasanti, 104 N.J.Super. 122, 249 A.2d 1 (1969). In this case, petitioner's release after ninety days leaves him in the same position as when he was initially charged, a "fugitive from justice" within the meaning of the federal constitutional provision requiring such persons to be delivered by the governor of one state to the governor of the state whose laws are alleged to have been violated. Glavin v. Warden, 163 Conn. at 398, 311 A.2d 86; Bell v. Janing, 188 Neb. at 692, 199 N.W.2d 24. Any interpretation of the statutes which would avoid the constitutional dictate to relinquish the fugitive would place the validity of the statutes in question. United States Const. art. 4, § 2.

The proceeding instituted in Finney County was merely the vehicle for the issuance of a warrant to arrest and hold the alleged fugitive for such time as necessary to enable the arrest of the accused under a governor's warrant, not to exceed a total of ninety days. It was not in any sense the institution of criminal proceedings in this state against the petitioner. The release of petitioner from bail in Finney County and the dismissal of the arrest warrant there were not an adjudication of his guilt or innocence of the alleged crime.

The validity of the governor's warrant presents a more difficult problem. Under date of May 6, 1978, our Supreme Court filed an opinion in Wilbanks v. State, 224 Kan. 66, 579 P.2d 132, in which it is...