State v. Smith, 13422

• Decision Date: 19 February 1985
• Docket Number: No. 13422,13422
• Citation: 686 S.W.2d 543
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John William SMITH, a/k/a, John Arthur Maxim, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 543

686 S.W.2d 543

STATE of Missouri, Plaintiff-Respondent, v. John William SMITH, a/k/a, John Arthur Maxim, Defendant-Appellant.

No. 13422.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 19, 1985.

James D. McNabb, Asst. Public Defender, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Shelley Woods, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

The defendant was convicted of burglary and stealing. He presents one point of alleged error. He contends the trial court erred in not dismissing the information because he was not brought to trial within the applicable period of limitation prescribed by the interstate Agreement on Detainers (the agreement), § 217.490, RSMo Supp. 1984.

The need for and the history of the agreement has been well stated. United States v. Mauro, 436 U.S. 340, 98 S.Ct 1834, 56 L.Ed.2d 329 (1978); Brown v. Wolff, 706 F.2d 902 (9th Cir.1983). In general, the agreement provides a means for the disposition of criminal charges pending in a receiving state against a prisoner incarcerated in a sending state and against whom a detainer has been lodged. The provisions of the agreement may be invoked by the prisoner or by an appropriate official of the receiving state.

When the agreement is invoked by the prisoner, Article III § 1, thereof declares: "[H]e shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of 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; ...." The issue presented is whether or not the defendant invoked that article, and, if so, was he brought to trial within the time therein prescribed.

The complaint that initiated this case was filed June 19, 1981. At that time, the defendant was in prison in Indiana. At an undisclosed time, a detainer was lodged against him on the basis of the pending complaint. On July 16, 1982, by Agreement on Detainers Form I, the defendant was given notice of the detainer and his right to invoke the agreement. He did so on that day by executing Agreement on Detainers Form II, "Inmates Notice of Place of Imprisonment and Request for Disposition." While the record is otherwise silent on the subject, it is established by tacit agreement of counsel that on July 16, 1982, the warden of the Indiana prison mailed the documents specified by the agreement to the prosecuting attorney in Missouri. He did not, as provided by the agreement, mail a copy of those documents to the court in which the complaint was pending. On September 16, 1982, apparently on Agreement on Detainers Form VII, the Missouri prosecuting attorney executed "Prosecutor's Acceptance of Temporary Custody Offered in Connection with a Prisoner's Request for Disposition of a Detainer", referring to the defendant. The judge of the Missouri court in which the complaint was pending executed the certificate on that form.

On October 27, 1982, under the provisions of the agreement and that acceptance, the defendant was returned to Missouri. Upon a preliminary hearing on November 15, 1982, the defendant was bound over to the circuit court on the charges of burglary and stealing. On November 19, 1982, an appropriate information was filed. The defendant was arraigned and pled not guilty. The case was set for trial on January 10, 1983. There is no record of what, if any, action was taken on January 10, 1983. The case was not tried that day.

On January 1, 1983, a new procedure for setting felony criminal cases for trial in that circuit court became effective. The following, in very general terms, is a summary of that procedure. At the beginning of the year, certain weeks were designated for the trial of felony cases by a jury. A list of pending felony cases was maintained by computer. The cases were listed chronologically, from the earliest to the most recently filed. On the Monday preceding a jury trial week, the assigned judge called the docket from a computer print-out. Counsel were expected to attend the docket call. Following the docket call, a list of cases set for trial during the jury week was posted on the bulletin board. While it is not so provided by rule, it was apparently the practice to terminate the docket call when a point was reached when it was obvious that it was impractical to set additional cases for trial during the subsequent jury week.

Testimony or stipulation established the following. There was a docket call on January 3, 1983, but the call terminated before the defendant's case was reached. The docket call scheduled for January 17, 1983 was not held. There was a docket call on February 7, 1983, but the defendant's case does not appear on the print-out filed as an exhibit. It is conceded it was not called. The defendant's case was not reached at the docket call held February 27, 1983, or on March 7, 1983.

A docket entry shows that on March 21, 1983, the defendant's case was called and set as the fourteenth case for trial for the week of March 28, 1983. The next docket entry is April 4, 1983. That entry reflects the case was called and set for trial on April 11, 1983. On April 7, 1983, the defendant filed a motion to dismiss based upon a violation of the agreement. The motion was overruled. The defendant was tried and convicted on April 28, 1983. The motion was renewed subsequent to that trial, but again overruled.

Under the provisions of § 2 of Article III, a prisoner is to give or send his written notice and request for disposition to the warden or other official having custody of him. Under that section, it was the duty of that official to promptly forward the notice and request, with a certificate of the prisoner's status, "to the appropriate prosecuting official and court by registered or certified mail, return receipt requested." As noted, § 1 of Article III, provides that the prisoner shall be brought to trial within 180 days after he has caused that notice and request to be so delivered.

The courts of the states which are parties to the agreement are not uniform concerning what triggers that 180-day limitation.

Other jurisdictions which have adopted the Agreement on Detainers are divided on the question whether the one hundred eighty day period begins on the date (a) on which the defendant requests the warden of the institution in which he is confined to forward the necessary papers (Beebe v. State, 346 A.2d 169, 171 [Del.1975] ), (b) on which the papers are actually mailed (State v. Wood, 241 N.W.2d 8, 11-13 [Iowa 1976] ), or (c) on which the authorities in the other state receive the request for prompt disposition (Commonwealth v. Fisher, 451 Pa. 102, 104-105, 301 A.2d 605 [1973] ). See Davidson v. State, 18 Md.App. 61, 67, 305 A.2d 474 (1972), cert. den. 269 Md. 757 (1973).

Commonwealth v. Carrillo, 5 Mass.App. 812, 361 N.E.2d 415, 416 (1977). Compare State v. Carroll, 670 P.2d 1290 (Hawaii App.1983); State v. Savage, 522 S.W.2d 144 (Mo.App.1975). It has been held that under extraordinary circumstances, a dismissal may become appropriate when a warden fails to promptly inform a prisoner of a detainer and his right to request a disposition thereof as required by § 3 of Article III. Romans v. Dist. Ct. In & For Eighth Jud. Dist., 633 P.2d 477 (Colo. banc 1981). But see Coit v. State, 440 So.2d 409 (Fla.App.1983); People v. Howell, 119 Ill.App.3d 1, 74 Ill.Dec. 734, 456 N.E.2d 236 (1983); State v. Clark, 222 Kan. 65, 563 P.2d 1028 (1977); Com. v. Gonce, 320 Pa.Super. 19, 466 A.2d 1039 (1983).

In this state, it has been uniformly held that this period of limitation is triggered only when the required documents are received by the prosecuting attorney and the appropriate court. State ex rel. Kemp v. Hodge, 629 S.W.2d 353 (Mo. banc 1982); State v. Soloway, 603 S.W.2d 688 (Mo.App.1980); State ex rel. Saxton v. Moore, 598 S.W.2d 586 (Mo.App.1980); State ex rel. Hammett v. McKenzie, 596 S.W.2d 53 (Mo.App.1980). Following that rule, the agreement was not invoked when the defendant's notice and request was received only by the prosecuting attorney. State v. Soloway, supra. Nevertheless, as noted, on September 16, 1982, the prosecuting attorney executed "Prosecutor's Acceptance of Temporary Custody Offered in Connection with a Prisoner's Request for Disposition of a Detainer." The judge of the court in which the complaint was pending executed a certificate thereon. That certificate read:

I hereby certify that the person whose signature appears above is an appropriate officer within the meaning of Article IV(1) and that the facts recited in this request for temporary custody are correct and that having duly recorded said request I hereby transmit it for action in accordance with its terms and the provisions of the Agreement on Detainers.

Under facts remarkably similar to this case, it has been held the execution of that acceptance and certification "constituted a waiver of the prisoner's failure to notify 'the appropriate court.' It set the 180-day period running." State ex rel. Saxton v. Moore, supra, at 592.

As observed in that case, the prisoner intended to invoke the agreement. The irregularity in the compliance with its terms was that of the warden. The prisoner received a copy of the acceptance of custody, which made no reference to any irregularity. The agreement was utilized by Missouri in returning the prisoner. The logic of State ex rel. Saxton v. Moore, supra, is compelling and is followed by this court.

In determining whether or not the defendant was brought to trial within that 180-day period so invoked, it is appropriate to observe certain basic principles applicable to the construction of the agreement. A violation of the agreement is not a mere technical error. Brown v. Wolff, supra. The agreement is to be construed in favor of the prisoner. State ex...