State v. Minnick, 81-636
| Decision Date | 30 April 1982 |
| Docket Number | No. 81-636,81-636 |
| Citation | 413 So.2d 168 |
| Parties | STATE of Florida, Appellant, v. George MINNICK, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellant.
Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellee.
Appellant, State of Florida, takes this appeal from a final order entered under the authority of section 941.45, Florida Statutes (1979) (Interstate Agreement on Detainers), which dismissed an information charging appellee with burglary and which discharged appellee.
The chronology of events as revealed by the record is as follows:
September 15, 1979: Appellee was arrested on a charge of burglary of a dwelling.
October 1, 1979: An information was filed charging appellee with that offense, to which he entered his written plea of not guilty.
November 28, 1979: Trial was scheduled for this date, but prior to trial, appellee escaped and a capias was issued for his arrest.
July 18, 1980: While serving a prison sentence at the Deerfield Correctional Center in Capron, Virginia, appellee had prepared an inmate's notice of imprisonment and request for disposition of indictment, information or complaint.
July 22, 1980: The notice was received by the warden of Deerfield for delivery to the state attorney of Pinellas County, Florida. It requested disposition of a charge of escape which was alleged to be the subject of a detainer placed with Virginia by Pinellas County authorities.
August 1, 1980: Florida requested temporary custody of appellee from Virginia for the purpose of granting appellee a speedy trial pursuant to section 941.45.
September 16, 1980: Upon receipt of the request, Virginia wrote to Pinellas County's state attorney informing him that appellee was currently confined in a local Virginia jail awaiting delivery to New Mexico pursuant to a request under the Interstate Agreement on Detainers, and that upon appellee's return to Virginia, Virginia would notify Florida authorities so further proceedings could be initiated by Florida under the Interstate Agreement on Detainers.
The record is then silent until March 10, 1981, when the public defender of the Sixth Judicial Circuit in Pinellas County, on behalf of appellee, filed a motion to dismiss and motion to discharge the burglary charge pending against appellee. This appeal is from the order granting that motion. We reverse.
Section 941.45(3) requires a requesting state to bring a prisoner requesting final disposition to trial 180 days after the state receives notice of such request. Young v. Mabry, 471 F.Supp. 553 (E.D.Ark.1978). The record does not reveal the date Florida received appellee's notice though it obviously was between July 22, 1980, when Virginia received it, and August 1, 1980, when Florida made its request for temporary custody of appellee.
We conclude that the 180-day period was tolled, pursuant to section 941.45(6), during the time appellee was in the custody of New Mexico authorities and unavailable to stand trial on the Florida charge. State v. Wood, 241 N.W.2d 8 (Iowa 1976). The record does not reveal how long appellee was in New Mexico. However, inasmuch as section 941.45(6) provides that the Florida court, the court having jurisdiction of the matter, is to determine when and for how long the time is tolled by a prisoner's not being available for trial, the Florida courts would not have been required to make that determination until Virginia notified Florida that appellee had been returned to Virginia, as it had agreed to do in the letter of September 16, 1980.
As pointed out by the court in United States v. Mason, 372 F.Supp. 651 (N.D.Ohio 1973), the Interstate Agreement on Detainers does not anticipate a three-state situation where a prisoner, against whom a detainer has been placed by a second state, is incarcerated in one...
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