Opinion
No. 77-1053
Decided June 14, 1979. Rehearing denied July 19, 1979. Certiorari denied October 29, 1979.
Convicted of felony escape, defendant appealed urging information should have been dismissed for non-compliance with Interstate Agreement on Detainers.
Reversed
1. CRIMINAL LAW — Interstate Agreement On Detainers — Prompt Notification — — Existence of Detainer — Right to Request Disposition — Required — Evidence — Not Establish Compliance — Dismissal Required. The Interstate Agreement on Detainers mandates not only notification of the lodging of a detainer but also that the prisoner be informed promptly of his right to request final disposition; consequently, where defendant testified that he had not been informed of his right to request disposition of detainer lodged against him, and no other evidence on the issue was presented, compliance with the Interstate Agreement on Detainers had not been demonstrated and charges arising under the detainer should have been dismissed.
Appeal from the District Court of Fremont County, Honorable Max C. Wilson, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Anthony M. Marquez, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, L. Richard Musat, Deputy State Public Defender, O. Edward Schlatter, Deputy State Public Defender, for defendant-appellant.
In March 1977, the defendant was charged with one count of felony escape. He was brought to trial in August and judgment of conviction was entered in November 1977. On May 5, 1977, the defendant moved to dismiss the information on the ground that there had not been compliance with the provisions of the Interstate Agreement on Detainers, § 24-60-501, Art. III(c), C.R.S. 1973, and Cal. Penal Code, Chapter 8.5, § 1389, Art. III(c). After a hearing, the trial court denied the motion. The defendant appeals his subsequent conviction of escape, contending, among other things, that the trial court erred in denying his motion to dismiss. We agree, and therefore reverse.
The record of the hearing before the trial court reveals that the defendant was incarcerated in the California State Prison at Folsom in March 1976. Two letters were attached to the defendant's motion to dismiss, and their authenticity is not challenged. One letter, dated March 24, 1976, was sent by an investigator at the Colorado State Penitentiary to the Department of Corrections in Sacramento, California, and requested that a "hold" be placed on the defendant by the California institution in which he was incarcerated. The other letter, dated April 14, 1976, was from the Records Officer of the California State Prison at Folsom to the investigator at the Colorado State Penitentiary. This letter acknowledged receipt of the criminal complaint and warrant against the defendant, and advised that these documents had been lodged as a detainer against the defendant.
The defendant testified at the hearing that he first learned from the California parole board in October 1976 that Colorado had placed a detainer on him. He also testified that he had not been advised of his right to demand speedy disposition of the charges which formed the basis for the detainer.
In its bench findings, the trial court ruled that the defendant had not made a proper demand for speedy disposition of the charges against him under the Agreement. Accordingly, it summarily denied the motion in its written order.
The People concede that a detainer was lodged against the defendant in April 1976, and that he was not informed of this detainer until October 1976. They argue that, since the trial court implicitly ruled that the defendant had been notified of the detainer, the sole issue before this court is whether this notification was prompt, within the meaning of § 24-60-501, Art. III(c), C.R.S. 1973. The People urge us to read into the Interstate Agreement the provisions of the intrastate Uniform Mandatory Disposition of Detainers Act, § 16-14-102(3), C.R.S. 1973, requiring the superintendent of the institution where the prisoner is confined to inform the prisoner of the lodging of the detainer and of his right to demand disposition within one year of the lodging of the detainer.
Even if we were disposed to indulge in such judicial legislation, see, e.g., Tompkins v. DeLeon, 197 Colo. 569, 595 P.2d 242, (ann'd May 29, 1979), we do not agree that the facts of this case require us to reach this issue. Article III(c) of the Interstate Agreement provides:
"The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based."
If we assume, arguendo, that notification by the parole board is a proper notification under the Agreement, nevertheless, the section mandates not only notification of the lodging of the detainer, but also that the prisoner be informed promptly of his right to request final disposition. The only evidence in the record relating to this requirement is the defendant's testimony that he was not so informed by the California authorities.
[1] In People v. Lincoln, 42 Colo. App. 512, 601 P.2d 641 (1979), we held that there is no presumption that officials of a sending state under the Agreement have performed their duties thereunder in a valid and regular manner. We also held that the burden is on the People to show that officials of the sending state have complied with the mandatory requirements of Article III(c). The People here have failed to sustain that burden, and our conclusions in Lincoln are dispositive.
In view of this conclusion, it is unnecessary to address the defendant's other contentions on appeal.
The judgment is reversed, and the cause is remanded with directions that the charges against the defendant be dismissed.
JUDGE COYTE and JUDGE PIERCE concur.