State v. Tarango

Decision Date19 February 1987
Docket NumberNo. 9464,9464
Citation734 P.2d 1275,1987 NMCA 27,105 N.M. 592
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Rogelio TARANGO, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

BIVINS, Judge.

Defendant appeals his conviction for escape from an inmate-release program under NMSA 1978, Section 33-2-46 (Repl.Pamp.1983). Following a trial by jury, defendant was sentenced to three years imprisonment. One year was suspended and the sentence was enhanced by one year under the habitual offender statute, for a total of three years imprisonment plus two years of parole.

We affirm.

BACKGROUND

On June 30, 1983, defendant began serving a sentence of three years for forgery and probation violation. He was incarcerated at the New Mexico Penitentiary and later transferred to the Roswell Correctional Center (RCC). On April 30, 1984, defendant left RCC on a sixty-six-hour furlough, being scheduled to return at 8:30 a.m. on May 3, 1984. Defendant failed to return to RCC. On May 3, the deputy warden swore out a complaint and an affidavit for arrest warrant, and the warden of RCC issued a fugitive writ that same day. All of these events occurred in Chaves County.

The record reflects that defendant was subsequently incarcerated in federal correctional institutions in El Reno, Oklahoma, and Bastrop, Texas. The parties agree that a detainer was sent by New Mexico to federal officials. While imprisoned, defendant sent various documents, pro se, to courts and agencies in New Mexico.

On December 5, 1985, defendant was released from federal prison and transferred to New Mexico. A criminal information was filed February 3, 1986, charging defendant with escape under the inmate-release program. On March 6, 1986, defendant, represented by counsel, filed a motion to dismiss for lack of a speedy trial. After a hearing, the motion was denied. Defendant was tried on June 4, 1986, and convicted by a jury.

Defendant raises two issues on appeal: (1) whether the trial court erred in failing to grant defendant's motion to dismiss for lack of a speedy trial; and (2) whether the trial court erred in failing to submit to the jury defendant's requested instruction on general criminal intent.

The first issue has two parts: whether New Mexico violated the provisions of the Interstate Agreement on Detainers, and whether defendant was denied his constitutional right to a speedy trial. We discuss each issue separately.

1. WHETHER NEW MEXICO VIOLATED THE PROVISIONS OF THE INTERSTATE AGREEMENT ON DETAINERS

New Mexico has adopted the Interstate Agreement on Detainers (IAD). NMSA 1978, Sec. 31-5-12 (Repl.Pamp.1984). The speedy trial provisions of the IAD may be activated by either the defendant (under Article 3) or by the prosecutor in the state that issued the detainer (under Article 4). In this case, it is defendant who is alleging the IAD applies because of his actions; therefore Article 3 applies.

Article 3 states in part:

A. Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he has 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, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the state parole agency relating to the prisoner.

B. The written notice and request for final disposition referred to in Subarticle A shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested. [Emphasis added.]

Defendant alleges he substantially complied with these provisions, thereby triggering the 180-day limit for being tried in New Mexico and, since he was not tried within that period, the charges must be dismissed. The state contends defendant's actions were insufficient to trigger the IAD, at least prior to October 1985, and, even if the notice defendant sent in October 1985 did substantially comply with the IAD requirements, New Mexico was not bound by the 180-day requirement because defendant was released from prison in Texas before 180 days had elapsed.

When a defendant is discharged by a sending state, the purpose of the IAD loses significance and defendant can no longer rely on its provisions. State v. Quiroz, 94 N.M. 517, 612 P.2d 1328 (Ct.App.1980). The IAD only applies to individuals while they are serving a prison term. State v. Thompson, 19 Ohio App.3d 261, 483 N.E.2d 1207 (1984); see State v. Duncan, 95 N.M. 215, 619 P.2d 1259 (Ct.App.1980). Once the prisoner is released, his rights regarding a speedy trial are the same as those of any other individual. Thompson; see State v. Smith, 353 N.W.2d 338 (S.D.1984) (where prisoner's term of imprisonment in another jurisdiction ended within the IAD's speedy trial time period, the IAD was not applicable to him and the trial court did not err in failing to dismiss); see also Annot., 98 A.L.R.3d 160, 185-6 (1980). Therefore, even if defendant activated the IAD in October or November 1985, the trial court correctly denied his motion to dismiss, as defendant was released from the federal prison on December 5, 1985.

The question then becomes whether defendant did anything earlier than 180 days before his release, i.e., before June 5, 1985, that would trigger the IAD provisions. The only exhibit in the record dated prior to June 1985 is a "DEMAND FOR SPEEDY TRIAL" dated January 25, 1985. The document is addressed to "UNITED STATES COURT DISTRICT OF NEW MEXICO, SANTA FE, COUNTY." The record includes a return receipt for certified mail, presumably for this document. The receipt, however, does not list the addressee. It is simply checked "Certified," date stamped Albuquerque, N.M., February 8, 1985, and signed on the line for "Agent." The signature is illegible. It seems likely, however, that the document was delivered to the United States District Court in Santa Fe.

The demand for a speedy trial does not mention the IAD, detainer, or New Mexico law. The document was not addressed to the prosecuting officer or to the appropriate court. It does indicate that defendant is a prisoner at the El Reno, Oklahoma, correctional institution, and mentions trial "within the statutory time" citing to a nonexistent statute. Even if it can be inferred that defendant was requesting a speedy trial under the IAD, the document refers to matters pending in the "City/County of New Mexico, Santa Fe District Court." Defendant alleges the New Mexico authorities were notified that he was requesting to be tried within 180 days. However, even if the request was delivered to the state district court in Santa Fe, which defendant has not established, there is no reference to any case pending in Chaves County.

New Mexico courts have not determined what action on the part of a prisoner is necessary to trigger the provisions of the IAD. Although a few cases from other jurisdictions have required strict compliance with the requirements of the Act, see, e.g., Whitley v. State, 392 So.2d 1220 (Ala.Cr.App.1980), the majority of jurisdictions addressing the issue found substantial compliance sufficient. State v. Roberts, 427 So.2d 787 (Fla.App.1983). The jurisdictions have not, however, agreed on what constitutes "substantial compliance." Id. One court held that the question should turn on whether the defendant has done everything the jurisdiction could reasonably expect, given its own degree of compliance with a scheme that the jurisdiction has the principal responsibility to implement. McBride v. United States, 393 A.2d 123 (D.C.App.1978).

Several states held that the only requirement for a prisoner to activate the IAD is for him to send a request to the prison official who has custody over him. See, e.g., McCallum v. State, 407 So.2d 865 (Ala.Cr.App.1981); Rockmore v. State, 21 Ariz.App. 388, 519 P.2d 877 (1974); Pittman v. State, 301 A.2d 509 (Del.1973); People v. Daily, 46 Ill.App.3d 195, 4 Ill.Dec. 756, 360 N.E.2d 1131 (1977). We believe these jurisdictions are correct. See State v. Alderete, 95 N.M. 691, 625 P.2d 1208 (Ct.App.1980) (Lopez, J., dissenting). "Other than providing prison officials with the required notice, which the defendant must undertake to do, the duty of carrying out the statutory provisions belongs entirely to the authorities involved." People v. Diaz, 94 Misc.2d 1010, 1012, 406 N.Y.S.2d 239, 241 (1978) (emphasis added).

Cases holding that the IAD provisions were activated even though there was something less than strict compliance have involved mistakes by state officials that were outside a defendant's control. See, e.g., Rockmore; Pittman; Daily; State v....

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