State v. DeMotte

600 P.2d 923, 42 Or. App. 413, 1979 Ore. App. LEXIS 3277
CourtCourt of Appeals of Oregon
DecidedOctober 1, 1979
DocketNo. 77-1780, CA 12238
StatusPublished
Cited by1 cases

This text of 600 P.2d 923 (State v. DeMotte) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. DeMotte, 600 P.2d 923, 42 Or. App. 413, 1979 Ore. App. LEXIS 3277 (Or. Ct. App. 1979).

Opinion

RICHARDSON, J.

Defendant appeals his conviction for Burglary in the First Degree, ORS 164.225. He contends that he was denied the right to a speedy trial under the Interstate Agreement on Detainers, ORS 135.775 and under the Sixth Amendment to the United States Constitution and Article I, § 10 of the Oregon Constitution.

On January 31, 1977, defendant burglarized a residence in Lane County, Oregon. He then departed for California, where on February 4, 1977, he was arrested for an unrelated charge. In the early part of March, 1977, he was sentenced to a California penal institution for parole violation. He was held, pending transfer to another institution, at a penal facility in Chino, California.

On March 25,1977, the Lane County District Attorney received an inquiry from the Chino facility as to whether a detainer would be lodged against defendant at the California institution. On March 28, the district attorney received a written demand from defendant for trial on any outstanding charges in Lane County. At this time defendant had not been indicted for the Lane County burglary and no detainer had been filed.

Subsequently, on March 30, the district attorney notified the California authorities at Chino that a detainer had not been filed. Defendant was indicted for the burglary on March 30, and on April 1,1977, a detainer was placed on defendant with the institution at Chino.

Defendant was informed of the detainer by the California prison officials on May 5, 1977, and on May 7, 1977, he signed a form requesting a speedy disposition of the charges under the Interstate Agreement on Detainers, ORS 135.775 et seq. This signed request was given to the California prison officials. A prison staff member wrote a memorandum to defendant [416]*416informing him that all the required forms had been filed in defendant’s central file. The memorandum indicated that the prison staff member believed defendant’s March 28, 1977, letter to the Lane County District Attorney operated as a demand to start the running of the period under the Interstate Agreement and he would have to be tried by September 28, 1977. There is no indication in the record that the forms completed by defendant on May 7, 1977, were sent to the district attorney.

Sometime thereafter defendant was transferred to Folsom Prison in Represa, California. On September 28, 1977, the district attorney received a telephone inquiry from a Folsom Prison official regarding whether the district attorney had received the documents required by the Agreement. After a negative response, the Folsom Prison official agreed to contact defendant and complete the necessary papers and forward them to the district attorney.

On October 17, 1977, the district attorney received a copy of the request defendant had filed with the prison on May 7, 1977. On October 19, 1977, the district attorney wrote to defendant and the records officer of Folsom Prison notifying them that under the Agreement the demand alone was not sufficient and that he needed a certificate of inmate status and an offer of temporary custody from the California authorities. ORS 135.775. On November 15, 1977, the district attorney received a letter from the California prison officials stating defendant had twice refused to cooperate in filling out the required forms.

Defendant was paroled on January 30, 1978, and was arraigned on the Lane County charge on February 13, 1978. He was tried and convicted on stipulated facts August 1,1978. The record does not disclose what occurred, if anything, between November 15, 1977, and January 30, 1978.

The thrust of defendant’s first argument is that his right to a speedy resolution of the charge under the [417]*417Interstate Agreement on Detainers, ORS 135.775 et seq, was violated. The Agreement, which has been adopted by Oregon and California, provides that a person who is serving a sentence in a signatory state, and against whom a detainer has been lodged, may request final disposition of the charges underlying the detainer. In order to invoke the procedures under the Agreement the prisoner must file a request for disposition of the charges with the official of the prison where he is incarcerated (the sending state). The prison officials of the sending state must immediately send the prisoner’s request to the receiving state, together with a certificate of inmate status and an offer of temporary custody. If the receiving state does not try the prisoner within 180 days from the time he submitted his request the indictment or information shall be dismissed with prejudice.

Defendant concedes that his request for trial sent to the district attorney on March 28, 1977, was premature because it was submitted prior to a detainer being filed. See State v. Hibdon, 36 Or App 97, 583 P2d 579 (1978). He argues, however, that his request of May 7, 1977, filed after the detainer was lodged, was sufficient to commence the running of the 180 day period specified in the Agreement. The difficulty with this contention is that all the required documentation was not submitted with defendant’s request for trial. If the request for resolution of the charges does not contain the information required under the agreement the time limitation for trial of defendant does not begin to run. State v. Cox, 12 Or App 215, 505 P2d 360, rev den (1973).

Defendant also argues that by submitting his request for trial to the California prison officials he did all that was required of him under the Agreement. He contends the California authorities were derelict in their duty to promptly send his request and to submit the certificate of incarceration and the offer of temporary custody.

[418]*418We need not decide if the risk of nonperformance of the sending state should fall on the defendant or the State of Oregon. The district attorney, on October 19, 1977, requested that the defendant and the California officials send the missing information. Assuming that the 180 day period expired on November 3, 1977, the district attorney’s request for the missing documentation was made prior to the end of the 180 day period. The defendant refused to cooperate with the California prison officials in providing the requisite information. There is nothing in the record to indicate that the prison officials made an unreasonable request for defendant’s cooperation or that they required him to sign forms which were unnecessary in order for them to comply with the Agreement.

Defendant explains his lack of cooperation by contending that the information requested by the district attorney on October 19 could not have been supplied in time for him to be brought to Oregon and tried by November 3, 1977. The Agreement provides that the state, for good cause, may be granted a necessary and reasonable extension of time in which to bring the defendant to trial.

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Related

State v. Burss
833 P.2d 1300 (Court of Appeals of Oregon, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
600 P.2d 923, 42 Or. App. 413, 1979 Ore. App. LEXIS 3277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-demotte-orctapp-1979.