State ex rel. Hammett v. McKenzie

• Decision Date: 13 February 1980
• Docket Number: Nos. 41103-41105,s. 41103-41105
• Citation: 596 S.W.2d 53
• Parties: STATE ex rel. Janice Faye HAMMETT, Relator, v. Ronald R. McKENZIE, Specially appointed Judge of the Circuit Court of Franklin County, Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 53

596 S.W.2d 53

STATE ex rel. Janice Faye HAMMETT, Relator, v. Ronald R. McKENZIE, Specially appointed Judge of the Circuit Court of Franklin County, Missouri, Respondent.

Nos. 41103-41105.

Missouri Court of Appeals, Eastern District, En Banc.

Feb. 13, 1980.

Prudence L. Fink, Sp. Asst. Public Defender, Union, for relator.

Daniel M. Buescher, Pros. Atty., Union, for respondent.

WEIER, Presiding Judge.

Relator, Janice Faye Hammett, seeks to make absolute a preliminary writ of prohibition granted on November 28, 1978, to prohibit Ronald R. McKenzie, special circuit judge assigned to Franklin County, from trying three criminal cases pending against her. Relator alleges that under the Interstate Agreement on Detainers, Section 222.160, RSMo.1978, (L.1971, S.B. 199) she had to be tried within 180 days after compliance with the statutory procedural requirements or else the criminal charges must be dismissed. We agree that the 180 days have run and the court has lost jurisdiction over the relator. The writ of prohibition is made absolute.

On July 19, 1977, a letter was sent from Charlotte A. Sutliff, warden of the Dwight Correctional Center in Illinois, to Joseph M. Ladd, judge of the Franklin County magistrate court. This letter informed Judge Ladd that under the procedure set forth in the Interstate Agreement on Detainers (the Act) the prisoner wished all outstanding Franklin County complaints on which detainers had been filed to be acted upon. On July 25, 1977, the letter from Warden Sutliff was received by the magistrate court in Franklin County together with those additional forms required by the Act. On July 28, 1977, an identical letter from Warden Sutliff was received by the Franklin County prosecuting attorney.

The defendant was produced in Franklin County on August 22, 1977, and appeared before Joseph M. Ladd, magistrate at a preliminary hearing on August 26, 1977. At this preliminary hearing the defendant was read the complaints filed against her by the assistant prosecuting attorney for the State and notified of "the need for and right to legal counsel." The defendant waived her right to counsel and was bound over to the Franklin County circuit court for arraignment on September 6, 1977. On September 6, 1977, defendant appeared before Lawrence O. Davis, judge of the Franklin County circuit court, Division II. Whereupon she requested that she be represented by counsel. The court determined she was indigent, appointed a public defender and the case was passed for two weeks until September 20, 1977. On September 20, 1977, the cases were remanded to the magistrate court of Franklin County for a preliminary hearing. On September 29, 1977, the cases against the defendant were consolidated and on October 7, 1977, a preliminary hearing was held in the magistrate court, whereupon the defendant was bound over to stand trial in the circuit court of Franklin County on all charges. On October 18, 1977, informations were filed in the circuit court by the prosecuting attorney.

Defendant was transferred to St. Louis County, Missouri, on October 20, 1977, in accordance with a request (a writ of habeas corpus and prosequendum) from the authorities there to act upon detainers on her in that county. She was returned to Franklin County in time for an arraignment on November 18, 1977. At the arraignment on November 18, 1977, circuit court Judge John C. Brackman in whose court the cases were pending stated that all trial settings for November and December of 1977 and January and February of 1978 were taken. The cases were passed to January 3, 1978, for trial setting at a later time. On January 18, 1978, Judge Brackman reset the cases for February 1, 1978. Two of the three cases were then reset on January 24, 1979, for trial in circuit court on February 1, 1978. The third case was transferred from Judge Brackman, Division I, to Judge Davis, Division II, and reset for trial on January 26, 1978, before Special Judge Ronald R. McKenzie, a circuit court judge from another circuit called in to try the cases. On January 24, 1978, defendant filed a motion to dismiss the charge in the case set on January 26 on the grounds that the 180 day time period under the Interstate Agreement on Detainers had expired and so the circuit court had lost jurisdiction over the defendant. Similar motions were filed in the other two cases on January 27, 1978. Defendant's motions in all three cases were dismissed by the court and petitions were filed on November 28, 1978, in this court seeking our writs to direct Judge McKenzie to enter an order sustaining relator's motion to dismiss and to prohibit him from taking further action in each case. On November 28, 1978, the writs were preliminarily granted by a division of this court and upon the court's own motion the three cases were consolidated. This division ruled that the preliminary writ of prohibition was improvidently granted and so refused to make the writ absolute. Relator's motion for a rehearing was granted. Upon this rehearing before an enlarged panel, we reconsider these consolidated cases upon the issues herein discussed and resolved.

Missouri has adopted the Uniform Mandatory Disposition of Detainers Act drafted by the National Conference of Commissioners on Uniform Laws. ¹ The Act contains an expression of policy and states the purpose of the agreement is to ensure the speedy disposition of untried criminal indictments, informations or complaints which have been filed against those defendants incarcerated in other jurisdictions. Finding that the outstanding criminal charges against defendants tend to "obstruct programs of prisoner treatment and rehabilitation," ² the legislature has set up a mechanism whereby prisoners in foreign jurisdictions may set in motion a speedy disposition of such charges and a determination of a party's proper status under the detainer(s). Article III of the Act states that

" . . . he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . . ." § 222.160, Art. III, 1, RSMo.1978. ³

In our determination of whether the circuit court has lost jurisdiction by the terms of the Interstate Detainers Act five fundamental questions must be resolved: (1) has the defendant Hammett complied with the procedural requirements of the Act, such that the "clock" began to run; (2) on what date did the statute begin to run against the Franklin County prosecutions; (3) were there any actions by the defendant which might be construed as tolling the 180 day period; (4) on what day, if any, did the period expire; and (5) has the State shown any good cause which would serve to extend the time limit beyond the 180 day period? We address these questions sequentially.

The record before us shows that the specific requirements of procedure laid out in the Act were met. The warden of the institution which had custody of the defendant did send by certified mail certificates to the appropriate officials in Franklin County, stating where relator was imprisoned, her term of commitment, the time she had already served, the time remaining to be served on the sentence, the amount of good time earned, when she became eligible for parole, the specifics of any decisions which the state parole agency had made concerning her and finally, a request for disposition of outstanding complaints.

The Act also requires the notification that a prisoner wishes to have her detainers acted upon must be delivered to both the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction. We interpret this language to mean that the 180 day period does not begin until both the prosecuting officer and the appropriate court have received notice of a request to dispose of outstanding complaints. The record, here, reveals that while the necessary papers were sent by the warden of the prisoner's place of confinement to the magistrate court of Franklin County, the letter was not received until July 25, 1977. In addition, the proper papers were not received by the prosecuting attorney of Franklin County until July 28, 1977. Obviously, a finding of which day marked the compliance with the procedural requirements of the Act will determine when the 180 day period began to run.

Numerous courts in other jurisdictions have passed upon this question. A plain reading of the statute indicates to us that all parties designated in the Act must have been put on notice before the 180 day period begins to run. Section 222.160, supra, Art. III, 1. This is the interpretation given in a number of other jurisdictions, and the rationale is well stated by a New York appellate court. "(T)he interstate compact is not self-executing and petitioner must comply with all of the statutory provisions promptly . . . ." Baker v. Schubin, 72 Misc.2d 413, 339 N.Y.S.2d 360 370(11) (N.Y.App.1972). ⁴ Thus, it follows that in the instant case the 29th of July 1977 was the first day of the period, and barring any tolling of the statute, the jurisdiction of the circuit court to hear the causes expired after January 24, 1978. (Rule 44.01).

The next matter to be determined is whether the running of the statutory period should be considered tolled by any action of the prisoner. Article VI(1) of the Act, supra, reads:

"In determining the duration and expiration dates of the time periods provided in articles III and IV of this agreement, the running of the time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter."

The State first contends that the prisoner's request for counsel should be held as a voluntary waiver of the time period. ⁵ We disagree. Although there is some conflict as to...