There is no right to hearing before governor in extradition proceedings under this section. Mode or manner of person's departure from state does not affect status as fugitive from justice. State ex rel. Jackson v. Froelich, 77 W (2d) 299, 253 NW (2d) 69.
Appropriate issue for habeas corpus court under (10) is not whether a warrant was properly issued in demanding state but whether, given properly authenticated documents, probable cause is stated which justifies the issuance of a governor's warrant in asylum state. State ex rel. Sieloff v. Golz, 80 W (2d) 225, 258 NW (2d) 700.
Convict paroled from federal prison in state was "fugitive from justice" subject to extradition by demanding state. State ex rel. O'Connor v. Williams, 95 W (2d) 378, 290 NW (2d) 533 (Ct. App. 1980).
Although sending state could retake compact parolee under 57.13 without process, if it chooses to extradite parolee it must meet extradition requirements. State ex rel. Reddin v. Meekma, 99 W (2d) 56, 298 NW (2d) 192 (Ct. App. 1980). Aff'd, 102 W (2d) 358, 306 NW (2d) 664 (1981).
No waiver of jurisdiction will be found unless waiver was manifestly intended by demanding state at time it yielded to another sovereignty. State ex rel. Graves v. Williams, 99 W (2d) 65, 298 NW (2d) 392 (Ct. App. 1980).
Where demanding state has not made judicial determination of probable cause or where documents do not show prima facie validity, the Sieloff analysis appears to be appropriate and not in conflict with controlling federal law in Michigan v. Doran. State v. Stone, 111 W (2d) 470, 331 NW (2d) 83 (1983).
Court erred in refusing to allow defendant to introduce evidence that he was not a fugitive from justice. State ex rel. Rodencal v. Fitzgerald, 164 W (2d) 411, 474 NW (2d) 795 (Ct. App. 1991).
A demanding state's extradition documents are in order when they include a warrant issued by a magistrate from the demanding state who is statutorily required to make a finding of probable cause. State ex rel. Ehlers v. Endicott, 187 W (2d) 57, 523 NW (2d) 189 (Ct. App. 1994).
The 30 and 60 day periods for detention under subs. (15) and (17) do not apply to persons already in detention. State ex rel. Ehlers v. Endicott, 188 W (2d) 57, 523 NW (2d) 189 (Ct. App. 1994).
When a Wisconsin prisoner is transported out of state for emergency medical care, acting under 976.03 is required. 80 Atty. Gen. 41
Once governor of asylum state has acted on extradition request based on demanding state's judicial determination that probable cause existed, no further inquiry may be had on that issue in asylum state. Michigan v. Doran, 439 US 282 (1978).
Under federal extradition act, federal courts have power to compel state governor to extradite fugitive. Puerto Rico v. Branstad, 483 US 219 (1987).
Uniform act on close pursuit. 976.04(1)
Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in close pursuit, and continues within this state such close pursuit, of a person in order to arrest the person on the grounds that the person is believed to have committed a felony in such other state, shall have the same authority to arrest and hold in custody such person, as members of a duly organized state, county or municipal peace unit of this state have, to arrest and hold in custody a person on the grounds that the person has committed a felony in this state.
If an arrest is made in this state by an officer of another state in accordance with sub. (1)
, the officer shall without unnecessary delay take the person arrested before a judge of the county in which the arrest was made, who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful the judge shall commit the person arrested to await for a reasonable time the issuance of an extradition warrant by the governor of this state or admit the person to bail for such purpose. If the judge determines that the arrest was unlawful, the judge shall discharge the person arrested.
(3) Subsection (1)
shall not be construed so as to make unlawful any arrest in this state which would otherwise be lawful.
For the purpose of this section, "state" includes the District of Columbia.
"Close pursuit" as used in this section includes fresh pursuit as defined by the common law, and also the pursuit of a person who has committed a felony or who is reasonably suspected of having committed a felony. It also includes the pursuit of a person suspected of having committed a supposed felony, though no felony has actually been committed, if there are reasonable grounds for believing that a felony has been committed. Close pursuit as used herein shall not necessarily imply instant pursuit, but pursuit without unreasonable delay.
This section shall be cited as the "Uniform Act on Close Pursuit".
History: 1993 a. 486
; 1995 a. 417
Agreement on detainers.
The agreement on detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joined therein in the form substantially as follows:
The contracting states solemnly agree that:
(1) Article I.
The party states find that charges outstanding against a prisoner, detainers based on untried indictments, informations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions, produce uncertainties which obstruct programs of prisoner treatment and rehabilitation. Accordingly, it is the policy of the party states and the purpose of this agreement to encourage the expeditious and orderly disposition of such charges and determination of the proper status of any and all detainers based on untried indictments, informations or complaints. The party states also find that proceedings with reference to such charges and detainers, when emanating from another jurisdiction, cannot properly be had in the absence of cooperative procedures. It is the further purpose of this agreement to provide such cooperative procedures.
(2) Article II.
As used in this agreement:
"Receiving state" means the state in which trial is to be had on an indictment, information or complaint under sub. (3)
"Sending state" means a state in which a prisoner is incarcerated at the time that the prisoner initiates a request for final disposition under sub. (3)
or at the time that a request for custody or availability is initiated under sub. (4)
"State" means a state of the United States; the United States of America; a territory or possession of the United States; the District of Columbia; and the Commonwealth of Puerto Rico.
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, the prisoner shall be brought to trial within 180 days after the prisoner 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 or her imprisonment and his or her 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 the prisoner's 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 department relating to the prisoner.
The written notice and request for final disposition referred to in par. (a)
shall be given or sent by the prisoner to the department, or warden, or other official having custody of the prisoner, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
The department, or warden, or other official having custody of the prisoner shall promptly inform the prisoner of the source and contents of any detainer lodged against the prisoner and shall also inform the prisoner of the prisoner's right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
Any request for final disposition made by a prisoner under par. (a)
shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The department, or warden, or other official having custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner's request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner's written notice, request and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Any request for final disposition made by a prisoner under par. (a)
shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of par. (d)
, and a waiver of extradition to the receiving state to serve any sentence there imposed upon the prisoner after completion of the prisoner's term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of the prisoner's body in any court where the prisoner's presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.
Escape from custody by the prisoner subsequent to the prisoner's execution of the request for final disposition referred to in par. (a)
shall void the request.
The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending shall be entitled to have a prisoner against whom the officer has lodged a detainer and who is serving a term of imprisonment in any party state made available in accordance with sub. (5) (a)
upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated: provided that the court having jurisdiction of such indictment, information or complaint has duly approved, recorded and transmitted the request: and that there shall be a period of 30 days after receipt by the appropriate authorities before the request is honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon the governor's own motion or upon motion of the prisoner.
Upon receipt of the officer's written request under par. (a)
, the appropriate authorities having the prisoner in custody shall furnish the officer with a certificate 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. Said authorities simultaneously shall furnish all other officers and appropriate courts in the receiving state who lodged detainers against the prisoner with similar certificates and with notices informing them of the request for custody or availability and of the reasons therefor.
In respect to any proceeding made possible by this subsection, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or the prisoner's counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
Nothing contained in this subsection shall be construed to deprive any prisoner of any right which the prisoner may have to contest the legality of the prisoner's delivery under par. (a)
, but such delivery may not be opposed or denied on the grounds that the executive authority of the sending state has not affirmatively consented to or ordered such delivery.
If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment under sub. (5) (e)
, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
In response to a request made under sub. (3)
, the appropriate authority in a sending state shall offer to deliver temporary custody of such prisoner to the appropriate authority in the state where such indictment, information or complaint is pending against such person in order that speedy and efficient prosecution may be had. If the request for final disposition is made by the prisoner, the offer of temporary custody shall accompany the written notice under sub. (3)
. In the case of a federal prisoner, the appropriate authority in the receiving state shall be entitled to temporary custody as provided by this agreement or to the prisoner's presence in federal custody at the place for trial, whichever custodial arrangement may be approved by the custodian.
The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
Proper identification and evidence of his or her authority to act for the state into whose temporary custody the prisoner is to be given.
A duly certified copy of the indictment, information or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.
If the appropriate authority refuses or fails to accept temporary custody of said person, or in the event that an action on the indictment, information or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in sub. (3)
, the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any effect.
The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or for prosecution on any other charge or charges arising out of the same transaction. Except for the prisoner's attendance at court and while being transported to or from any place at which the prisoner's presence may be required, the prisoner shall be held in a suitable jail or other facility regularly used for persons awaiting prosecution.
At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
During the continuance of temporary custody or while the prisoner is otherwise being made available for trial as required by this agreement, time being served on the sentence shall continue to run but good time shall be earned by the prisoner only if, and to the extent that, the law and practice of the jurisdiction which imposed the sentence allows.
For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
From the time that a party state received custody of a prisoner pursuant to this agreement until such prisoner is returned to the territory and custody of the sending state, the state in which the one or more untried indictments, informations or complaints are pending or in which trial is being had shall be responsible for the prisoner and shall also pay all costs of transporting, caring for, keeping and returning the prisoner. This paragraph shall govern unless the states concerned have entered into a supplementary agreement providing for a different allocation of costs and responsibilities as between or among themselves. Nothing herein contained shall be construed to alter or affect any internal relationship among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor.
In determining the duration and expiration dates of the time periods provided in subs. (3)
, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.
No provision of this agreement, and no remedy made available by this agreement, shall apply to any person who is adjudged to be mentally ill.
(7) Article VII.
Each state party to this agreement shall designate an officer who, acting jointly with like officers of other party states, shall promulgate rules and regulations to carry out more effectively the terms and provisions of this agreement, and who shall provide, within and without the state, information necessary to the effective operation of this agreement.
(8) Article VIII.
This agreement shall enter into full force as to a party state when such state has enacted the same into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing the same. However, the withdrawal of any state shall not affect the status of any proceedings already initiated by inmates or by state officers at the time such withdrawal takes effect, nor shall it affect their rights in respect thereof.
(9) Article IX.
This agreement shall be liberally construed so as to effectuate its purposes. The provisions of this agreement shall be severable and if any phrase, clause, sentence or provision of this agreement is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this agreement shall be held contrary to the constitution of any state party hereto, the agreement shall remain in full force as to the remaining states and in full force as to the state affected as to all severable matters.
"Appropriate court", with reference to the courts of this state, means the circuit court.
"Department" means the department of corrections.
All courts, departments, agencies, officers and employes of this state and its political subdivisions are hereby directed to enforce the agreement on detainers and to cooperate with one another and with other parties in enforcing the agreement and effectuating its purpose.
Nothing in this section or in the agreement on detainers shall be construed to require the application of s. 939.62
to any person on account of any conviction had in a proceeding brought to final disposition by reason of the use of said agreement.
Any prisoner who while in another state as a result of the application of the agreement on detainers escapes from lawful custody shall be punished as though such escape had occurred within this state.
The department shall give over the person of any inmate of any penal or correctional institution under its jurisdiction whenever so required by the operation of the agreement on detainers. The central administrator of and information agent for the agreement on detainers shall be the secretary of corrections.
Copies of this section shall, upon its approval, be transmitted to the governor of each state, the attorney general and the secretary of state of the United States, and the council of state governments.
See note to Art. I, sec. 8, citing State ex rel. Garner v. Gray, 55 W (2d) 574, 201 NW (2d) 163.
The question of whether another state which has filed a detainer has failed to grant the prisoner a speedy trial after demand must be decided by the demanding state. The appropriate officer to file a detainer under Art. IV (a) is the prosecuting officer of the county of the foreign state where the charges exist. State ex rel. Garner v. Gray, 59 W (2d) 323, 208 NW (2d) 161.
Res judicata should not be applied to bar multiple detainer requests where prior requests were dismissed because of the inadequacy or insufficiency of the requesting documents. In Matter of Custody of Aiello, 166 W (2d) 27, 479 NW (2d) 178 (Ct. App. 1991).
A waiver of the time limits under this section may be made by conduct and does not require an express personal waiver. State v. Aukes, 192 W (2d) 338, 531 NW (2d) 382 (Ct. App. 1995).
Writ of habeas corpus ad prosequendum issued by federal court directing state authorities to produce state prisoner for federal criminal trial is not a detainer under this section. United States v. Mauro, 436 US 340 (1978).
Prisoner has right to pretransfer hearing. Cuyler v. Adams, 449 US 433 (1981).
Agreement on detainers; additional procedure.
Following receipt of the officer's written request as provided in s. 976.05 (4) (a)
, the prisoner shall forthwith be taken before a judge of a court of record of this state, who shall inform the prisoner of the request for temporary custody or availability, the crime with which charged and that the prisoner has the right to petition the governor to deny the request, to contest the request and to demand and procure legal counsel. If the prisoner or the prisoner's counsel shall state that the prisoner or the prisoner and counsel desire to test the legality of granting temporary custody or availability, the judge shall set a date for hearing which shall be not later than the expiration of the 30-day period established by s. 976.05 (4) (a)
. If a hearing is set, notice of the hearing shall be given to the appropriate officer of the state requesting temporary custody or availability and to the authorities having custody of the prisoner in this state. The scope of any hearing or ruling under this section shall be confined to the request for temporary custody or availability, and to the identification of the person sought by the requesting state, but shall not encompass the guilt or innocence of the prisoner as to the crime charged by the requesting state.
History: 1975 c. 158
; 1981 c. 390
NOTE: See drafting file in Legislative Reference Bureau for Legislative Council Note to original bill. [Bill 263-A]
State's failure to hold hearing within 30-day period required discharge of prisoner from detainer. State v. Sykes, 91 W (2d) 436, 283 NW (2d) 446 (Ct. App. 1979).
A defendant is prohibited from raising a constitutional issue on s. 974.06 motion if the claim could have been raised in a previously filed s. 974.02 motion or a direct appeal. State v. Escalera-Naranjo, 185 W (2d) 169, 517 NW (2d) 157 (1994).
Failure to meet the 30-day time limit requires the commencement of a new proceeding in order to obtain temporary custody over the subject of the petition. State ex rel. Kerr v. McCaughtry, 183 W (2d) 54, 515 NW (2d) 276 (Ct. App. 1994).
Agreements on extradition; Indian tribes. 976.07(1)(1)
The attorney general may negotiate an agreement with any Indian tribe within the borders of this state exercising powers of self-government within the Indian country as defined in 18 USC 1151
to which this state has retroceded jurisdiction under 25 USC 1323
, relating to the extradition of witnesses, fugitives and evidence found within the respective jurisdictions of this state and the tribe.
An agreement negotiated under sub. (1)
shall provide that a court of the sending jurisdiction, before issuing an order for the extradition of any person, shall:
Notify the person named in the extradition warrant of the right to a hearing and to legal counsel.
That the person named in the warrant is the person charged with the crime or is the witness demanded.
That there is probable cause to believe that the person named in a criminal extradition warrant was present in the demanding jurisdiction at the time of the alleged crime or that the person committed an act in any place with intent to commit a crime in the demanding jurisdiction.
If the person contests the legality of his or her arrest, allow a reasonable time within which the person may commence an action for habeas corpus.
The attorney general shall submit agreements negotiated under sub. (1)
to the governor for approval. The governor shall have 30 days in which to review the agreement. If the governor takes no action within 30 days, the agreement becomes effective.
The attorney general shall provide technical assistance and material support necessary to implement any agreement under this section.