976.05(4)(a)(a) 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.
976.05(4)(b)
(b) 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 or date of release to extended supervision 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.
976.05(4)(c)
(c) 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.
976.05(4)(d)
(d) 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.
976.05(4)(e)
(e) 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.
976.05(5)(a)(a) In response to a request made under
sub. (3) or
(4), 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.
976.05(5)(b)
(b) The officer or other representative of a state accepting an offer of temporary custody shall present the following upon demand:
976.05(5)(b)1.
1. Proper identification and evidence of his or her authority to act for the state into whose temporary custody the prisoner is to be given.
976.05(5)(b)2.
2. 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.
976.05(5)(c)
(c) 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) or
(4), 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.
976.05(5)(d)
(d) 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.
976.05(5)(e)
(e) At the earliest practicable time consonant with the purposes of this agreement, the prisoner shall be returned to the sending state.
976.05(5)(f)
(f) 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.
976.05(5)(g)
(g) 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.
976.05(5)(h)
(h) 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.
976.05(6)(a)(a) In determining the duration and expiration dates of the time periods provided in
subs. (3) and
(4), 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.
976.05(6)(b)
(b) 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.
976.05(7)
(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.
976.05(8)
(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.
976.05(9)
(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.
976.05(10)(a)
(a) "Appropriate court", with reference to the courts of this state, means the circuit court.
976.05(10)(b)
(b) "Department" means the department of corrections.
976.05(11)
(11) All courts, departments, agencies, officers and employees 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.
976.05(12)
(12) 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.
976.05(13)
(13) 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.
976.05(14)
(14) 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.
976.05(15)
(15) 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.
976.05 Annotation
The uniform detainer act, s. 976.05 is unconstitutional in: 1) failing to require that the prisoner be notified of his rights; 2) denying him equal protection similar to that afforded prisoners under the criminal extradition act; and 3) not requiring a judicial hearing. The use of a hearing similar to that required under the extradition act would cure the defects. State ex rel. Garner v. Gray,
55 Wis. 2d 574,
201 N.W.2d 163 (1972).
976.05 Annotation
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 Wis. 2d 323,
208 N.W.2d 161 (1973).
976.05 Annotation
Res judicata should not be applied to bar multiple detainer requests if prior requests were dismissed because of the inadequacy or insufficiency of the requesting documents. In Matter of Custody of Aiello,
166 Wis. 2d 27,
479 N.W.2d 178 (Ct. App. 1991).
976.05 Annotation
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 Wis. 2d 338,
531 N.W.2d 382 (Ct. App. 1995).
976.05 Annotation
If government officials complied with the procedural requirements of this section and the prisoner refused to follow those procedures, the prisoner will be held to the technical requirements of this section. State v. Blackburn,
214 Wis. 2d 372,
571 N.W.2d 695 (Ct. App. 1997),
97-0451.
976.05 Annotation
The 180-day time limit in sub. (3) does not apply if the detainee has been convicted but not sentenced prior to being returned from a party state. State v. Grzelak,
215 Wis. 2d 577,
573 N.W.2d 538 (Ct. App. 1997),
97-1454.
976.05 Annotation
A writ of habeas corpus prosequendum does not constitute a detainer subject to the requirements of the Interstate Agreement on Detainers, s. 976.05. State v. Eesley,
225 Wis. 2d 248,
591 N.W.2d 846 (1999),
97-1839.
976.05 Annotation
The "anti-shuffling" provision under sub. (4) (e) may be waived if the prisoner requests a procedure that is inconsistent with the statute. It is not necessary to knowingly and intentionally relinquish the rights under sub. (4) (e); even if the prisoner is unaware of these rights, they may be waived by a request for contrary treatment. State v. Nonahal, 2001 WI App 39,
241 Wis. 2d 397,
626 N.W.2d 1,
00-0603.
976.05 Annotation
The defendant waived his right to a speedy trial by his conduct, discharging his attorney six days before the scheduled trial and agreeing to a trial date outside of the 180-day limit. Having asked for, and accepted, treatment inconsistent with his rights under this section, the defendant cannot then assert those rights in an effort to win a dismissal of charges. State v. Miller, 2003 WI App 74,
261 Wis. 2d 866,
661 N.W.2d 466,
02-0851.
976.05 Annotation
The apparent failure of Illinois prison authorities to comply with the IAD by failing to notify the defendant of Wisconsin charges does not warrant dismissal of the Wisconsin charge. State v. Townsend, 2006 WI App 177,
295 Wis. 2d 844,
722 N.W. 2d 753,
03-0429.
976.05 Annotation
This section applies to detainers lodged against prisoners that are based on untried indictments, informations, or complaints. There is nothing that indicates that the rights accorded to prisoners under it attach when there are no untried charges outstanding. Status as a parolee does not keep a former prisoner within this statute. Pharm v. Bartow, 2007 WI 13,
298 Wis. 2d 702,
727 N.W. 2d 1,
04-0583.
976.05 Annotation
A prisoner has the following rights after he or she files a request for disposition under sub. (3): 1) transportation to a receiving state to answer pending charges; 2) commencement of a trial within 180 days in the receiving state; 3) return to the sending state to complete the prisoner's term of incarceration; and 4) upon completion of the prisoner's term of incarceration in the sending state, return to the receiving state to serve any term of incarceration that has been imposed there. Pharm v. Bartow, 2007 WI 13,
298 Wis. 2d 702,
727 N.W. 2d 1,
04-0583.
976.05 Annotation
A writ of habeas corpus ad prosequendum issued by a federal court directing state authorities to produce a state prisoner for a federal criminal trial is not a detainer under this section. United States v. Mauro,
436 U.S. 340 (1978).
976.05 AnnotationA prisoner has a right to a pretransfer hearing. Cuyler v. Adams,
449 U.S. 433 (1981).
976.06
976.06
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.
976.06 History
History: 1975 c. 158,
199;
1981 c. 390.
976.06 Note
NOTE: See drafting file in Legislative Reference Bureau for Legislative Council Note to original bill. [Bill 263-A]
976.06 Annotation
The state's failure to hold a hearing within the 30-day period required discharge of the prisoner from a detainer. State v. Sykes,
91 Wis. 2d 436,
283 N.W.2d 446 (Ct. App. 1979).
976.06 Annotation
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 Wis. 2d 54,
515 N.W.2d 276 (Ct. App. 1994).
976.06 Annotation
A defendant is prohibited from raising a constitutional issue on an 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 Wis. 2d 169,
517 N.W.2d 157 (1994).
976.07
976.07
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.
976.07(2)
(2) 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:
976.07(2)(a)
(a) Notify the person named in the extradition warrant of the right to a hearing and to legal counsel.
976.07(2)(b)1.
1. That the person named in the warrant is the person charged with the crime or is the witness demanded.
976.07(2)(b)2.
2. 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.
976.07(2)(c)
(c) 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.
976.07(3)
(3) 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.
976.07(4)
(4) The attorney general shall provide technical assistance and material support necessary to implement any agreement under this section.
976.07(5)
(5) An agreement under this section may be revoked by the governor, after consulting with the attorney general, or by the tribal chairperson upon 6 months' written notice to the other party unless a different period of time is specified in the agreement.
976.07(6)(a)
(a) Enlarge the criminal or civil jurisdiction of either the state or a tribal government under federal law.
976.07(6)(b)
(b) Permit an Indian tribe to enter into agreements other than those authorized by its organizational documents and laws.
976.07(6)(c)
(c) Permit this state or any of its political subdivisions to enter into agreements prohibited by the state constitution.
976.07 History
History: 1981 c. 368,
391.
976.08
976.08
Additional applicability. In this chapter, "prisoner" includes any person subject to an order under
s. 48.366 or
938.183 who is confined to a Wisconsin state prison.
