State v. Fender, 14100

• Decision Date: 15 July 1980
• Docket Number: No. 14100,14100
• Citation: 268 S.E.2d 120,165 W.Va. 440
• Parties: STATE of West Virginia v. Denzil Ray FENDER.
• Court: West Virginia Supreme Court

Page 120

268 S.E.2d 120

165 W.Va. 440

STATE of West Virginia v. Denzil Ray FENDER.

No. 14100.

Supreme Court of Appeals of West Virginia.

July 15, 1980.

Syllabus by the Court

1. "Under the 'Three Term Rule,' W.Va. Code 62-3-21 (1959), where an accused has been indicted in West Virginia and fled elsewhere, the defendant can only assert lack of reasonable diligence on the part of the State in procuring him for trial if the defendant himself has not resisted the State's efforts to return him for trial." Syl. pt. 3, State ex rel. Boso v. Warmuth, 270 S.E.2d 631 (W.Va., 1980).

2. "The three regular terms of a court essential to the right of a defendant to be discharged from further prosecution, pursuant to provisions of Code, 62-3-21, as amended, are regular terms occurring subsequent to the ending of the term at which the indictment against him is found. The term at which the indictment is returned is not to be counted in favor of the discharge of a defendant." Syl. pt. 1, State ex rel. Smith v. DeBerry, 146 W.Va. 534, 120 S.E.2d 504 (1961).

3. "Any term at which a defendant procures a continuance of a trial on his own motion after an indictment is returned, or otherwise prevents a trial from being held, is not counted as one of the three terms in favor of discharge from prosecution under the provisions of Code, 62-3-21, as amended." Syl. pt. 2, State ex rel. Spadafore v. Fox, 155 W.Va. 674, 186 S.E.2d 833 (1972).

John W. Bennett, Logan, for Fender.

Chauncey H. Browning, Atty. Gen., Ann V. Dornblazer, Asst. Atty. Gen., Charleston, for State.

PER CURIAM:

In this appeal, Denzil Ray Fender, who was convicted of breaking and entering in the Circuit Court of Logan County, contends that more than three terms of the circuit court passed between the return of the indictment against him and his trial, and that under the "Three Term Rule," W.Va. Code 62-3-21 (1959), he should have been discharged from prosecution. We disagree.

During the May 1971 Term of the Circuit Court of Logan County, the appellant was indicted for breaking and entering. During the same term a capias was issued for his arrest, and he was apprehended and then released pending trial on a $1,500 bond which was in customary form and required him to be amenable to further appearances in the court. By order entered July 6, 1971, the case was continued on the appellant's motion, to the September Term of the Circuit Court. At that time he was allowed to remain on his original bond until September 24, 1971.

On August 23, 1971, a Federal court committed the appellant to the National Reformatory in Petersburg, Virginia, for violating the National Firearms Act. Later he was transferred to the Federal Youth Center in Ashland, Kentucky. Because he was in Federal custody the appellant failed to appear in the Circuit Court during the September 1971 Term according to the terms of his continuance and bond.

Thereafter, at the January 1972 Term of Court the State filed two writs of habeas corpus ad prosequendum to procure his return to West Virginia so that he could be tried on the breaking and entering indictment. The record does not disclose what transpired after the filing of the first writ of habeas corpus. The second writ was filed April 6, 1972, still within the January 1972 Term. It apparently resulted in the appellant's writing to his counsel by a letter dated April 11, 1972, where he stated:

"I am very happy and well pleased to hear you have discussed my case with the honorable Judge, and that he is willing to continue may case until I am released from Federal confinement. My present release date is October 1, 1972. It is my wish and desire to continue my case until this or a later date, in order and so that we will have sufficient and proper time to prepare my case."

Subsequently, on May 23, 1972, his counsel filed a written motion for continuance in which he requested the case be continued. In the affidavit attached to the motion counsel stated that if the defendant were returned for trial upon the writ of habeas corpus ad prosequendum he could not be confined in the county jail because it was not an approved facility for Federal prisoners. He would be confined in Cabell County which would make it difficult to communicate with him. Further, he attached appellant's letter and pointed out that the appellant would be released in the fall. As a consequence of this motion nothing further was done to procure the appellant's return to the State. ¹

On September 13, 1972, the appellant was released from the Federal Youth Center. Upon his release he returned to Logan County but failed to present himself to the Circuit Court. For the next two and one-half years he remained at large, and the State was not aware of his whereabouts. On May 9, 1975, the appellant was arrested on a misdemeanor charge, and at that time the State reactivated the breaking and entering proceedings.

When it became apparent that the State intended to prosecute him on the felony, the appellant filed a Plea in Bar asserting that he was discharged from prosecution by the terms of the "Three Term Rule", W.Va. Code 62-3-21 (1959). ² After conducting a hearing on the matter, the Circuit Court, by order entered August 28, 1975, overruled the plea.

We have recognized that W.Va. Code 62-3-21 (1959) imposes a duty on the State to exercise reasonable diligence to procure temporary custody of an out-of-state accused for the purpose of offering him a speedy trial once his out-of-state whereabouts become known. The failure of the State so to act will cause the terms during which the accused was in out-of-state custody to be chargeable against the State under the "Three Term Rule." State ex rel. Boso v. Warmuth, 270 S.E.2d 631 (W.Va., 1980); State ex rel. Stines v. Locke, W.Va., 220 S.E.2d 443 (1975).

There are three methods by which the State may attempt to secure the presence of a defendant who is incarcerated out of state. One method is provided by W.Va. Code 62-14-1 (1971) et seq., the "Agreement on Detainers". Article IV of that agreement provides a mechanism whereby a West Virginia prosecutor, who has lodged a detainer against an accused confined in a foreign state subscribing to the "Agreement," may procure temporary custody of him for the purpose of affording him a trial. Where the State has obtained custody of an accused through the procedure established by the "Agreement on Detainers," trial must be commenced within one hundred twenty days after the prisoner returns to the State, unless a continuance is granted for good cause shown in open court with the accused or his attorney present in court. Moore v. Whyte, W.Va., 266 S.E.2d 137 (1980); W.Va. Code 62-14-1 (1971); see, Yackle, Taking Stock of Detainer Statutes, Loy.L.A.L.Rev. 88 (1975).

Prior to the enactment of the "Agreement on Detainers" the State had available the common law writ of habeas corpus ad prosequendum for obtaining for trial the temporary custody of an out-of-state accused. Traditionally that writ has been issued by a court in the state seeking custody of the defendant. It has been directed to the person having custody of him in the foreign sovereignty. Although by the writ the seeking state cannot compel the jurisdiction having custody to return the accused for trial, ³ custodian jurisdictions commonly, on the basis of comity, have recognized and honored the requests. See, In re Habeas Corpus of Yoder, Okl.Cr., 298 P.2d 1083 (1956); Commonwealth v. Tees, 179 Pa.Super. 605, 118 A.2d 585 (1955).

The federal government has been among jurisdictions honoring writs of habeas corpus ad prosequendum from the states. In sanctioning the procedure Chief Justice Taft in Ponzi v. Fessenden, 258 U.S. 254, 261, 42 S.Ct. 309, 311, 66 L.Ed. 607 (1922), said:

"There is no express authority authorizing the transfer of a federal prisoner to a state court for such purposes (trial on a state charge). Yet we have no doubt that it exists and is to be exercised with the consent of the attorney general. In that officer, the power and discretion to practice the comity in such matters between the federal and state courts, is vested."

We do not believe that in enacting the "Agreement on Detainers" our Legislature abolished or amended the right of the State to seek the temporary custody of an out-of-state accused through a writ of habeas corpus ad prosequendum. It would appear that it established an alternative devise which, because it was uniform in other subscribing jurisdictions, regularized the return procedure.

In Syllabus Point 2 of Moore v. Whyte, supra, we stated that: "A writ of habeas corpus ad prosequendum is a 'written request for temporary custody' under the Agreement of Detainers." In that case we held that we would treat a writ of habeas corpus ad...