Jacobson v. Sullivan

703 P.2d 1293, 1985 Colo. LEXIS 461
Supreme Court of Colorado·Decided July 1, 1985·No. No. 83SA339·Published·Cited by 1 cases

Opinion

KIRSHBAUM, Justice.

Petitioner appeals the trial court’s order discharging a writ of habeas corpus issued upon a petition contesting extradition proceedings filed against petitioner. We affirm.

On October 5, 1982, petitioner was arrested in Arapahoe County, Colorado, on the basis of a warrant alleging that petitioner was a fugitive from Minnesota.1 On October 7, 1982, petitioner was released on bond and the case was continued until October 15,1982. Subsequently, the case was continued to December 17, 1982. On December 1, 1982, pursuant to a request for extradition to Minnesota, the Governor of Colorado executed a governor’s warrant authorizing such extradition.

Petitioner failed to appear for the December 17, 1982, hearing. The trial court immediately revoked petitioner’s bond and issued a warrant for his arrest. In 1983, unrelated charges of criminal conduct committed in Colorado were filed against petitioner in Arapahoe County.

On April 19, 1983, petitioner was taken into custody. He appeared before the trial court on the following day, at which time his attorney stated that petitioner had been served with the governor’s warrant the previous night. The trial court ordered a stay of execution of the governor’s warrant until April 22, 1983, and ordered petitioner to be held without bond. On April 22, petitioner filed a petition for a writ of habeas corpus challenging his extradition. A hearing was set for April 27, 1983, which was continued to May 11, 1983. Petitioner remained incarcerated without bond.

On May 11, 1983, defense counsel stated that she had been informed that the Governor of Colorado was going to temporarily withdraw the governor’s warrant until the Colorado criminal charges still pending against petitioner were resolved. The hearing was continued to May 20,1983, and the court noted that if the governor’s warrant were withdrawn prior to that date petitioner’s prior bond would be reinstated.2 On May 13, 1983, the Governor issued an executive order which stated that pursuant to sections 16-19-120 and 16-19-122 of the Colorado Revised Statutes, the warrant for the arrest of petitioner would be “temporarily withdrawn and held in abeyance so that local charges may be resolved.” The order further stated that “[t]he warrant will be reinstated when local charges are resolved.” On May 20, 1983, the executive order was filed with the trial court, the case was continued to July 1, 1983, and petitioner was remanded.

On July 1, 1983, the Colorado criminal charges pending against petitioner were dismissed upon motion of the district attorney. The trial court then continued the habeas corpus hearing to July 7, 1983, and continued petitioner’s bond to that date. On July 7, 1983, the court granted a request by petitioner for a stay of execution of the governor’s warrant to permit petitioner to file an amended petition for writ of habeas corpus. An amended petition challenging the trial court’s jurisdiction was filed, and the matter was finally argued on July 13, 1983. At the conclusion of that hearing, the trial court initially concluded that it should not have set a bond for petitioner on May 11. The trial court then concluded that “[immediately upon dismissal of the local charges, the Governor’s Warrant would become effective again under the terms of the executive order of May 13, 1983.” The trial court [1295] discharged the writ of habeas corpus and ordered execution of the governor’s warrant. This appeal followed.

Petitioner contends that the trial court had no jurisdiction to detain him after the dismissal of the Colorado criminal charges on July 1, 1983, because, in the absence of a new governor’s warrant, petitioner should have been discharged from custody.3 We disagree.

Authority for the arrest and extradition of persons charged with criminal acts who flee the jurisdiction in which such charges are pending is found in the United States Constitution, as follows:

A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.

U.S. Const, art. IV, § 2, cl. 2. In 1793, Congress enacted the Uniform Extradition Act,4 which placed the duty of extradition in the executive authority of the asylum state. See Abramson, Extradition in America: Of Uniform Acts and Governmental Discretion, 33 Baylor L.Rev. 793 (1981). In Colorado, procedures for extradition of fugitives are governed by the Uniform Criminal Extradition Act (UCEA). See §§ 16-19-101 to -133, 8 C.R.S. (1978 & 1984 Supp.).

Section 16-19-116, 8 C.R.S. (1978), provides that if it appears to the trial court that a person held is a person charged with being a fugitive, that person may be committed to the county jail for a period of time not to exceed thirty days, pending the issuance of a governor’s warrant, or may be admitted to bail. Section 16-19-118, 8 C.R.S. (1978), permits the trial court to extend the period of pre-warrant confinement for an additional sixty days. A person may not be incarcerated more than ninety days from the date of the person’s initial advisement in the absence of the issuance of a governor’s warrant. See Schumm v. Nelson, 659 P.2d 1389 (Colo. 1983).

Section 16-19-103, 8 C.R.S. (1978), provides in pertinent part that the state’s chief executive has a duty

to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.

A governor may, however, investigate any demand for extradition, § 16-19-105, 8 C.R.S. (1978), and retains the discretion to comply with or to reject a demand for extradition. Id. § 16-19-108. These provisions implicitly recognize that a governor retains some measure of executive discretion in implementing particular provisions of the UCEA.

Express recognition of discretion in the office of the chief executive to implement provisions of the UCEA is found in sections 16-19-120 and 16-19-122, 8 C.R.S. (1978). The former section states as follows:

Persons under prosecution when demanded. If a criminal prosecution has been instituted against a person under the laws of this state and is still pending, the governor, in his discretion, subject to such criminal prosecution, either may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and punished in this state.

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Jacobson v. Sullivan, 703 P.2d 1293, 1985 Colo. LEXIS 461 (Colo. 1985).

703 P.2d 1293 (Jacobson v. Sullivan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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