State v. Sykes, 78-738

• Decision Date: 30 July 1979
• Docket Number: No. 78-738,78-738
• Citation: 283 N.W.2d 446,91 Wis.2d 436
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. James E. SYKES, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 446

283 N.W.2d 446

91 Wis.2d 436

STATE of Wisconsin, Plaintiff-Appellant, v. James E. SYKES, Defendant-Respondent.

No. 78-738.

Court of Appeals of Wisconsin.

Submitted on Briefs June 5, 1979.

Opinion Released July 30, 1979.

Opinion Filed July 30, 1979.

Review Denied.

Bronson C. La Follette, Atty. Gen., and Michael R. Klos, Asst. Atty. Gen., for appellant.

Richard L. Cates, State Public Defender, Madison, William J. Tyroler, Asst. State Public Defender, Milwaukee and William Retert, First Asst. State Public Defender, Fond du Lac, for respondent.

Before DEAN, P. J., DONLIN and FOLEY, JJ.

FOLEY, Judge.

The state appeals from an order discharging defendant Sykes from a detainer lodged against him by the State of Illinois under sec. 976.05, Stats. The issue is whether the state's failure to promptly bring Sykes before the court to permit compliance with the thirty-day hearing requirement of sec. 976.06, Stats., ¹ required the discharge.

Sykes is a prisoner at the Wisconsin State Prison at Waupun. A detainer was lodged against him on June 16, 1978, based on indictments for two crimes and an arrest warrant in Illinois. He received notice of the detainer on June 20. On June 23, prison authorities informed him of his right to petition the governor to deny the request. His subsequent petition to the governor was denied on July 24. His first appearance before the circuit court was on August 14. The court informed him at this appearance of his right to resist the detainer request for temporary transfer of custody to Illinois including his right to oppose the request in court with the aid of counsel. He subsequently requested and secured issuance of a writ of habeas corpus to challenge the state's failure to comply with sec. 976.06, Stats., and a hearing on the writ was held on October 2.

Following the October 2 hearing, the court ordered Sykes discharged from the detainer. Discharge was based upon the state's failure to bring Sykes before the court until almost two months after the prison authorities received the request and failure to provide a hearing for over three months after receipt of the request. The court held that sec. 976.06, Stats., required the state to bring Sykes before the court immediately upon receipt of the detainer request, and required a hearing, if demanded, within thirty days of receipt of the request. ²

We agree with the circuit court that the thirty-day hearing requirement of sec. 976.06, Stats., is mandatory. The supreme court has noted that a statute requiring that something "shall" be done is directory as opposed to mandatory only if the provision is "not of the essence of the thing to be done." State v. Balgie, 76 Wis.2d 206, 208, 251 N.W.2d 36, 37 (1977). The court has also said that "(a) time provision should be construed as directory only if an injury or wrong could not be presumed to result . . . ." State v. Rosen, 72 Wis.2d 200, 208, 240 N.W.2d 168, 172 (1976).

In sec. 976.06, Stats., time is of the essence because injury may be presumed from unnecessarily prolonging the prisoner's status as one subject to a detainer. As stated in State ex rel. Garner v. Gray, 59 Wis.2d 323, 333, 208 N.W.2d 161, 166 (1973):

Several authors have noted the adverse effects upon a prisoner resulting from a detainer being lodged against him. Thus, for example, he may be held under maximum security, he may be denied transfer to a minimum security area or prison, he may be denied the privilege of becoming a trustee or a job which involves a degree of trust. Further, and of great importance to the prisoner, he may be denied parole because of a detainer filed against him. (Footnotes omitted.)

Additionally, the drafters of the Uniform Act on Detainers adopted in Wisconsin as sec. 976.05, Stats., also recognized the harmful effect of detainers and declared a policy of providing speedy disposition of detainer proceedings in the Act's statement of purpose. ³ Failure, therefore, by the state to bring the defendant before the court for over...