§ 35-33-10-4 — Agreement on detainers; defendants confined in other jurisdiction of United States

Indiana § 35-33-10-4

• Jurisdiction: Indiana
• Art. 33: PRELIMINARY PROCEEDINGS
• Ch. 10: Securing Attendance of Defendants and Uniform

Text

Securing attendance of defendants confined
as prisoners in institutions of other jurisdictions of the United
States─Agreement on detainers.
Text of the Agreement of Detainers
The contracting states solemnly agree that:
Article 1
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.
Article 2
As used in this agreement:
(a) "State" shall mean a state of the United States; the United States
of America; a territory or possession of the United States; the District
of Columbia; the Commonwealth of Puerto Rico.
(b) "Sending state" shall mean a state in which a prisoner is
incarcerated at the time he initiates a request for final disposition
pursuant to Article 3 of this section or at the time that a request for
custody or availability is initiated pursuant to Article 4 hereof.
(c) " Receiving state" shall mean the state in which trial is to be had
on an indictment, information or complaint pursuant to Article 3 or
Article 4 hereof.
Article 3
(a) 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, he
shall be brought to trial within one hundred eighty (180) days after he
shall have 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 imprisonment and his request for a final disposition
to be made of the indictment, information or complaint; provided that
for good cause shown in open court, the prisoner or his 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 of the prisoner, and any decisions of the state
parole agency relating to the prisoner.
(b) The written notice and request for final disposition referred to in
paragraph (a) hereof shall be given or sent by the prisoner to the
warden, commissioner of correction or other official having custody of
him, who shall promptly forward it together with the certificate to the
appropriate prosecuting official and court by registered or certified
mail, return receipt requested.
(c) The warden, commissioner of correction 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.
(d) Any request for final disposition made by a prisoner pursuant to
paragraph (a) hereof shall operate as a request for final disposition of
all untried indictments, information 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 warden, commissioner of correction 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.
(e) Any request for final disposition made by a prisoner pursuant to
paragraph (a) hereof 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 paragraph (d) hereof, and a waiver of
extradition to the receiving state to serve any sentence there imposed
upon him, after completion of his term of imprisonment in the sending
state. The request for final disposition shall also constitute a consent by
the prisoner to the production of his body in any court where his
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.
(f) Escape from custody by the prisoner subsequent to his execution
of the request for final disposition referred to in paragraph (a) hereof
shall void the request.
Article 4
(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 he has lodged a detainer and who is
serving a term of imprisonment in any party state made available in
accordance with Article 5 (a) hereof 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 shall have duly approved, recorded and transmitted the
request; and provided further that there shall be a period of thirty (30)
days after receipt by the appropriate authorities before the request be
honored, within which period the governor of the sending state may
disapprove the request for temporary custody of availability, either
upon his own motion or upon motion of the prisoner.
(b) Upon receipt of the officer's written request as provided in
paragraph (a) hereof, 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 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 have 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.
(c) In respect of any proceeding made possible by this Article, trial
shall be commenced within one hundred twenty (120) days of the
arrival of the prisoner in the receiving state, but for good cause shown
in open court, the prisoner or his counsel being present, the court
having jurisdiction of the matter may grant any necessary or reasonable
continuance.
(d) Nothing contained in this Article shall be construed to deprive
any prisoner of any right which he may have to contest the legality of
his delivery as provided in paragraph (a) hereof, but such delivery may
not be opposed or denied on the ground that the executive authority of
the sending state has not affirmatively consented to or ordered such
delivery.
(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 pursuant to Article 5 (e) hereof, 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.
Article 5
(a) In response to a request made under Article 3 or Article 4 hereof,
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 provided
for in Article 3 of this agreement. 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.
(b) The officer or other representative of a state accepting an offer
of temporary custody shall present the following upon demand:
(1) Proper identification and evidence of his authority to act for the
state into whose temporary custody the prisoner is to be given.
(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.
(c) If the appropriate authority shall refuse or fail 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
Article 3 or Article 4 hereof, 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 force or effect.
(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 of
complaints which form the basis of the detainer or detainers or for
prosecution on any other charge or charges arising out of the same
transaction. Except for his attendance at court and while being
transported to or from any place at which his presence may be required,
the prisoner shall be held in a suitable jail or other facility regularly
used for persons awaiting prosecution.
(e) At the earliest practicable time consonant with the purposes of
this agreement, the prisoner shall be returned to the sending state.
(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
may allow.
(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.
(h) From the time that a party state receives 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. The provisions of this paragraph shall govern
unless the states concerned shall 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 subdivision, as to the
payment of costs, or responsibilities therefor.
Article 6
(a) In determining the duration and expiration dates of the time
periods provided in Articles 3 and 4 of this agreement, 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.
(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.
Article 7
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.
Article 8
This agreement shall enter into full force and effect 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.
Article 9
1. 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 and effect as to the remaining
states and in full force and effect as to the state affected as to all
severable matters.
2. The phrase "appropriate court" as used in the agreement on
detainers shall, with reference to the courts of this state, mean any court
with criminal jurisdiction.
3. All courts, departments, agencies, officers and employees of this
state and its political subdivision are hereby directed to enforce the
agreement on detainers and to cooperate with one another and with
other party states in enforcing the agreement and effectuating its
purposes.
4. Escape from custody while in another state pursuant to the
agreement on detainers shall constitute an offense against the laws of
this state to the same extent and degree as an escape from the
institution in which the prisoner was confined immediately prior to
having been sent to another state pursuant to the provisions of the
agreement on detainers and shall be punishable in the same manner as
an escape from said institution.
5. It shall be lawful and mandatory upon the warden or other official
in charge of a penal or correctional institution in this state to give over
the person of any inmate hereof whenever so required by the operation
of the agreement on detainers.
6. The governor is hereby authorized and empowered to designate
an administrator who shall perform the duties and functions and
exercise the powers conferred upon such person by Article 7 of the
agreement on detainers.
7. In order to implement Article 4(a) of the agreement on detainers,
and in furtherance of its purposes, the appropriate authorities having
custody of the prisoner shall, promptly upon receipt of the officer's
written request notify the prisoner and the governor in writing that a
request for temporary custody has been made and such notification
shall describe the source and contents of said request. The authorities
having custody of the prisoner shall also advise him in writing of his
rights to counsel, to make representations to the governor within thirty
(30) days, and to contest the legality of his delivery.
As added by Acts 1981, P.L.298, SEC.2.