§ 29-738 — Rights of accused person; writ of habeas corpus; application

Nebraska § 29-738

• Jurisdiction: Nebraska
• Ch. 29: Criminal Procedure

Text

No person arrested upon such warrant shall be delivered over to the agent whom the Executive Authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.

Legislative History

Source: Laws 1963, c. 159, § 10, p. 561. Cross References: Habeas corpus, see Article I, section 8, Constitution of Nebraska, and section 29-2801 et seq. Annotations: Habeas corpus is not the proper action to challenge the validity of a detainer based upon an untried complaint, where the state filing the detainer has not requested transfer of the prisoner. Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989). Once the governor of an asylum state has granted extradition, a court of that state, considering release on habeas corpus, can do no more than decide (1) whether the extradition documents on their face are in order, (2) whether the petitioner has been charged with a crime in the demanding state, (3) whether the petitioner is the person named in the request for extradition, and (4) whether the petitioner is a fugitive. Radant v. Vargason, 220 Neb. 116, 368 N.W.2d 483 (1985).