Turner v. State

Citation584 So.2d 925
PartiesDavid C. TURNER v. STATE. CR 89-1486.
Decision Date29 March 1991
CourtAlabama Court of Criminal Appeals

Deborah S. Seagle of Smith & Seagle, Dothan, for appellant.

Don Siegelman, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

David C. Turner, the appellant, was convicted of theft of property in the first degree and was sentenced to seven years' imprisonment. He was also convicted of attempted theft of property in the first degree and was sentenced to a concurrent term of seven years' imprisonment. He raises four issues on this appeal from those convictions. Each argument involves the appellant's contention that his prosecution should have been dismissed due to the State's failure to comply with the Interstate Agreement on Detainers Act.

The Alabama Uniform Mandatory Disposition of Detainers Act, adopting the Interstate Agreement on Detainers Act (IAD), is found in Ala.Code 1975, § 15-9-80 through § 15-9-88. The IAD is codified in § 15-9-81. Article III provides, in pertinent parts:

"(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, ... on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 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....

"(b) The written notice and request for final disposition referred to in paragraph (a) hereof 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 [of that official prepared in accordance with paragraph (a) ] to the appropriate prosecuting official and court by registered or certified mail, return receipt requested."

(Emphasis added.) Section 15-9-82(a) provides:

"Any person who is imprisoned in a penal or correctional institution of this state may request final disposition of any untried indictment, ... pending against him in this state. The request shall be in writing addressed to the court in which the indictment, information or complaint is pending and to the district attorney charged with the duty of prosecuting it, and shall set forth the place of imprisonment."

Section 15-9-83 provides:

"The request shall be delivered to the warden or other like official having custody of the prisoner, who shall forthwith:

"(1) Certify the term of commitment under which the prisoner is being held, the time already served on the sentence, the time remaining to be served, the good time earned, the time of parole eligibility of the prisoner and any decisions of the state board of pardons and paroles relating to the prisoner; and

"(2) Send by registered or certified mail, return receipt requested, one copy of the request and certificate to the court and one copy to the district attorney to whom it is addressed."

(Emphasis added.)

I.

The appellant argues that the issue in this case concerns the alleged negligence of the federal prison officials in the sending state who failed to send timely notice of the appellant's request for a speedy disposition of the detainers to the district attorney and circuit court of Houston County. However, we view the issue in this case as whether the appellant carried his burden of proving that he fully complied with the requirements of the Alabama Uniform Mandatory Disposition of Detainers Act.

A hearing was held on the appellant's motion to dismiss on December 19, 1989. The facts relevant to the disposition of this case are listed below in chronological order. Almost all of these facts were introduced at the hearing through the undisputed and uncontested oral testimony of the appellant.

July 8, 1988: The appellant was arrested in Houston County, Alabama. He was subsequently turned over to the F.B.I. in connection with bank fraud.

August 19, 1988: The appellant was indicted for theft in Houston County, Alabama.

March 24, 1989: The appellant was sentenced in Birmingham, Alabama, for his federal guilty plea conviction of bank fraud.

April 4, 1989: The appellant was transferred from a federal prison in Talladega, Alabama, to a federal prison in Petersburg, Virginia.

April 7, 1989: "Mrs. Holderfield," the appellant's case manager, advised the appellant that Alabama had outstanding detainers against him, and that the appellant would have to be transferred to a higher security facility.

April 10, 1989: The appellant sent a "cop out" to Holderfield requesting that notice be sent to Alabama under the Interstate Agreement on Detainers "to activate them for disposal of the charge within the 180 days." A "cop out" is "an inmate request to a staff member to take some action."

April 14, 1989: Holderfield informed the appellant that she had not sent the notices because he was being transferred and that it would be the responsibility of the prison to which he was transferred to send the notices.

April 26, 1989: The appellant was transferred from Petersburg, Virginia, and arrived at the federal prison in Ashland, Kentucky, on May 1, 1989.

May 2, 1989: Counselor Ron Moore advised the appellant that the detainers had been transferred from Petersburg, Virginia, to Ashland, Kentucky.

May 5, 1989: The appellant gave a "cop out" to the officer on the first shift to deliver requesting that the notices be sent.

May 8, 1989: The appellant was informed by counselors Moore and Patterson that the detainer notices had not been sent and that it would be the responsibility of the appellant's "unit team" to send the notices after he arrived at his unit team. The appellant requested that the notices be sent.

May 10, 1989: The appellant sent a letter to the district attorney of Houston County requesting that he be brought to trial.

May 19, 1989: The appellant was assigned to "J" unit. He requested his counselor, Roger Riggs, to send the notices. Riggs advised the appellant that the "proper procedure would be to turn in a written request and send it to the attention of the team."

May 22, 1989: The appellant sent a "cop out" in "via Mr. Riggs to the team."

May 30, 1989: At the appellant's first team meeting, he learned that his case manager, who was responsible for sending the notices, "had never put out those before and had no idea of what to do with them, but he would check and get back with [the appellant] about it."

June 16, 1989: Case manager Barry Collie told the appellant that the notices had not been sent, "that they were still working on them."

June 23, 1989: The appellant requested a "BP9" (Bureau of Prisons form 9, which is a request from inmates to wardens to review the actions, or inaction in this case, of a staff member) requesting the warden to review the inaction of the staff in not sending the detainer notices. It was decided that the appellant "should give them a couple of more weeks to get them finished and out."

July 18, 1989: The appellant requested another BP9 and discussed the matter with case manager Collie.

July 21, 1989: The paperwork was completed, signed by the appellant, and mailed.

August 9, 1989: The District Attorney of Houston County received the paperwork mailed July 21. The cover letter informed the District Attorney that "under the provision of Article III of the Act, you have 180 days in which to bring Mr. Anders [the indictment indicates that the appellant used the alias of Joseph Christopher Anders] to trial from the date of receipt of this application [to bring to a conclusion pending charges in your jurisdiction for the charges of theft of property]."

August 10 or 11, 1989: The District Attorney filed "the Forms VI and VII under the Uniform Disposition of Detainers Act with the prison official in Ashland, Kentucky." Form VI is titled, "Evidence of Agent's Authority to Act for Receiving State." Form VII is titled, "Prosecutor's Acceptance of Temporary Custody Offered in Connection With a Prisoner's Request for Disposition of a Detainer."

August 16, 1989: The District Attorney was notified that "the prison official in Ashland did not receive Form VI." That form was mailed to the prison officials on this date.

August 17, 1989: The Houston County District Attorney's office sent notice that it intended to take custody of the appellant. A trial date was scheduled for September 18, 1989.

September 4, 1989: The appellant arrived in Houston County, Alabama.

October 4, 1989: The appellant was arraigned.

November 7, 1989: The appellant filed a motion to dismiss alleging that he had not been brought to trial within the 180 days required by Article III of the Interstate Agreement on Detainers Act. This motion was scheduled "to be heard just prior to trial and if case not tried week of 11/13/89 then at 9:00 a.m. on 11/20/89."

November 13, 1989: This was the first opportunity the appellant had for a jury trial. The case action summary shows that on this date, the case was transferred to the nonjury docket for December 19, 1989, and the motion to dismiss was to be heard "just prior to trial."

December 19, 1989: The trial court held a hearing on the appellant's motion to dismiss. The trial court denied the motion. The appellant then was tried based on a stipulation of facts and convicted by the trial court sitting without a jury.

At the conclusion of the hearing, and after argument of the issues, the trial court stated:

"My ruling on the motion to dismiss, based on the Interstate Detainer Compact, is a denial of the motion to dismiss.

"....

"There are two bases: Number one, I am denying it based on the weight of the...

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