Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his or her bail, probation, extended supervision or parole may waive the issuance and service of the warrant provided for in subs. (7)
and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that the person consents to return to the demanding state; however, before such waiver shall be executed or subscribed by such person the judge shall inform such person of the person's rights to the issuance and service of a warrant of extradition and to commence an action for habeas corpus as provided in sub. (10)
If and when such consent has been duly executed it shall forthwith be forwarded to the office of the governor of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent. Nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state.
(28) Nonwaiver by this state.
Nothing in this section shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for crime committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under this section which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.
(29) No right of asylum.
After a person has been brought back to this state by, or after waiver of, extradition proceedings, the person may be tried in this state for other crimes which the person may be charged with having committed here, as well as that specified in the requisition for the person's extradition.
This section shall be so interpreted as to make uniform the law of those states which enact it.
Judicial Council Note, 1981: References in subs. (10) and (27) (a) to a “writ" of habeas corpus have been removed because that remedy is now available in an ordinary action. See s. 781.01, stats., and the note thereto. [Bill 613-A]
Alibi or questions of guilt or innocence are beyond the scope of inquiry in a habeas corpus proceeding. Extradition is allowed even though the accused did no act in the foreign state and has not fled from that state. State ex rel. Welch v. Hegge, 54 Wis. 2d 482
, 195 N.W.2d 669
An extradition proceeding is not subject to collateral attack in a probation revocation hearing. State ex rel. Hanson v. DHSS, 64 Wis. 2d 367
, 219 N.W.2d 267
A request by the demanding state for extradition from Wisconsin of a fugitive accused of violation of the terms of probation need not be accompanied by an affidavit sworn before a magistrate, but is sufficient under sub. (3), if included therewith are copies of the judgment of conviction, or sentence imposed, together with a statement by the executive authority that the fugitive has broken the terms of the probation. State ex rel. Holmes v. Spice, 68 Wis. 2d 263
, 229 N.W.2d 97
As indicated by the presence of a restriction in other uniform acts adopted by Wisconsin conditioning their application to other states with the same or similar acts and the absence of such a limitation in the Uniform Criminal Extradition Act, applicability of the statute is not affected in Wisconsin by the fact that a state demanding extradition has not adopted the act. State v. Hughes, 68 Wis. 2d 662
, 229 N.W.2d 655
Only the asylum state, and not the defendant, has a constitutional right to extradition. State ex rel. Niederer v. Cady, 72 Wis. 2d 311
, 240 N.W.2d 626
Sub. (14) was not intended to repudiate the common law rule that an arrest may be made on probable cause to believe that the subject had committed a crime in another state, irrespective of a lack of a complaint or warrant in that state. Desjarlais v. State, 73 Wis. 2d 480
, 243 N.W.2d 453
The scope of inquiry in extradition habeas corpus cases is discussed. State v. Ritter, 74 Wis. 2d 227
, 246 N.W.2d 552
There is no right to a hearing before the governor in extradition proceedings under this section. The mode or manner of a person's departure from the state does not affect the status of a fugitive from justice. State ex rel. Jackson v. Froelich, 77 Wis. 2d 299
, 253 N.W.2d 69
An appropriate issue for the habeas corpus court under sub. (10) is not whether a warrant was properly issued in the demanding state, but whether, given properly authenticated documents, probable cause is stated that justifies the issuance of a governor's warrant in the asylum state. State ex rel. Sieloff v. Golz, 80 Wis. 2d 225
, 258 N.W.2d 700
A convict paroled from federal prison in the state was a “fugitive from justice" subject to extradition by the demanding state. State ex rel. O'Connor v. Williams, 95 Wis. 2d 378
, 290 N.W.2d 533
(Ct. App. 1980).
Although the sending state could retake a compact parolee under s. 57.13 [now s. 304.13] without process, if it chooses to extradite the parolee it must meet extradition requirements. State ex rel. Reddin v. Meekma, 99 Wis. 2d 56
, 298 N.W.2d 192
(Ct. App. 1980).
No waiver of jurisdiction will be found unless waiver was manifestly intended by the demanding state at the time it yielded to another sovereignty. State ex rel. Graves v. Williams, 99 Wis. 2d 65
, 298 N.W.2d 392
(Ct. App. 1980).
If the demanding state has not a made judicial determination of probable cause or if 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 Wis. 2d 470
, 331 N.W.2d 83
The court erred in refusing to allow the defendant to introduce evidence that he was not a fugitive from justice. State ex rel. Rodencal v. Fitzgerald, 164 Wis. 2d 411
, 474 N.W.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 Wis. 2d 57
, 523 N.W.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 Wis. 2d 57
, 523 N.W.2d 189
(Ct. App. 1994).
A waiver of extradition and this section expressly gave Wisconsin the right to the petitioner's custody to serve a Wisconsin sentence imposed while the prisoner was serving a sentence in Nevada. At the completion of the Wisconsin sentence, the scope and purpose of the waiver and this section were satisfied and completed. Nothing in the waiver or this section governed or guaranteed future events. Specifically, the petitioner had no right or legitimate expectation that he would be returned to Nevada upon the completion of his Wisconsin sentence or of immunization from potential commitment proceedings under ch. 980. Pharm v. Bartow, 2005 WI App 215
, 287 Wis. 2d 663
, 706 N.W.2d 693
When a Wisconsin prisoner is transported out of state for emergency medical care, acting under s. 976.03 is required. 80 Atty. Gen. 41
Once the governor of an asylum state has acted on an extradition request based on a demanding state's judicial determination that probable cause existed, no further inquiry may be had on that issue in the asylum state. Michigan v. Doran, 439 U.S. 282
Under the federal extradition act, federal courts have the power to compel a state governor to extradite a fugitive. Puerto Rico v. Branstad, 483 U.S. 219
Uniform act on close pursuit. 976.04(1)(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.
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 or date of release to extended supervision 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 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.
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 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.
Nothing in this section or in the agreement on detainers shall be construed to require the application of s. 939.6195
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.
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
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
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).
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).
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