Chapter 976

976.05 Annotation The question of whether another state, which has filed a detainer, has failed to grant the prisoner a speedy trial after demand must be decided by the demanding state. The appropriate officer to file a detainer under Art. IV (a) is the prosecuting officer of the county of the foreign state where the charges exist. State ex rel. Garner v. Gray, 59 Wis. 2d 323, 208 N.W.2d 161 (1973).

976.05 Annotation Res judicata should not be applied to bar multiple detainer requests if prior requests were dismissed because of the inadequacy or insufficiency of the requesting documents. In Matter of Custody of Aiello, 166 Wis. 2d 27, 479 N.W.2d 178 (Ct. App. 1991).

976.05 Annotation A waiver of the time limits under this section may be made by conduct and does not require an express personal waiver. State v. Aukes, 192 Wis. 2d 338, 531 N.W.2d 382 (Ct. App. 1995).

976.05 Annotation If government officials complied with the procedural requirements of this section and the prisoner refused to follow those procedures, the prisoner will be held to the technical requirements of this section. State v. Blackburn, 214 Wis. 2d 372, 571 N.W.2d 695 (Ct. App. 1997), 97-0451.

976.05 Annotation The 180-day time limit in sub. (3) does not apply if the detainee has been convicted but not sentenced prior to being returned from a party state. State v. Grzelak, 215 Wis. 2d 577, 573 N.W.2d 538 (Ct. App. 1997), 97-1454.

976.05 Annotation A writ of habeas corpus prosequendum does not constitute a detainer subject to the requirements of the Interstate Agreement on Detainers, s. 976.05. State v. Eesley, 225 Wis. 2d 248, 591 N.W.2d 846 (1999), 97-1839.

976.05 Annotation The “anti-shuffling” provision under sub. (4) (e) may be waived if the prisoner requests a procedure that is inconsistent with the statute. It is not necessary to knowingly and intentionally relinquish the rights under sub. (4) (e); even if the prisoner is unaware of these rights, they may be waived by a request for contrary treatment. State v. Nonahal, 2001 WI App 39, 241 Wis. 2d 397, 626 N.W.2d 1, 00-0603.

976.05 Annotation The defendant waived his right to a speedy trial by his conduct, discharging his attorney six days before the scheduled trial and agreeing to a trial date outside of the 180-day limit. Having asked for, and accepted, treatment inconsistent with his rights under this section, the defendant cannot then assert those rights in an effort to win a dismissal of charges. State v. Miller, 2003 WI App 74, 261 Wis. 2d 866, 661 N.W.2d 466, 02-0851.

976.05 Annotation The apparent failure of Illinois prison authorities to comply with the IAD by failing to notify the defendant of Wisconsin charges does not warrant dismissal of the Wisconsin charge. State v. Townsend, 2006 WI App 177, 295 Wis. 2d 844, 722 N.W. 2d 753, 03-0429.

976.05 Annotation This section applies to detainers lodged against prisoners that are based on untried indictments, informations, or complaints. There is nothing that indicates that the rights accorded to prisoners under it attach when there are no untried charges outstanding. Status as a parolee does not keep a former prisoner within this statute. Pharm v. Bartow, 2007 WI 13, 298 Wis. 2d 702, 727 N.W. 2d 1, 04-0583.

976.05 Annotation A prisoner has the following rights after he or she files a request for disposition under sub. (3): 1) transportation to a receiving state to answer pending charges; 2) commencement of a trial within 180 days in the receiving state; 3) return to the sending state to complete the prisoner’s term of incarceration; and 4) upon completion of the prisoner’s term of incarceration in the sending state, return to the receiving state to serve any term of incarceration that has been imposed there. Pharm v. Bartow, 2007 WI 13, 298 Wis. 2d 702, 727 N.W. 2d 1, 04-0583.

976.05 Annotation Once a prisoner has properly requested a prompt and final disposition of pending criminal charges, the only way the state could avoid its obligation to bring the prisoner to trial within 180 days of the request under sub. (3) was to dismiss the untried complaint or information. Because the state only modified the arrest warrant to rule out nationwide extradition and did not withdraw the detainer and dismiss the criminal complaint, the source for the prisoner’s request for a speedy trial was still in existence. State v. Tarrant, 2009 WI App 121, 321 Wis. 2d 69, 772 N.W.2d 750, 08-1736.

976.05 Annotation A detainer is a notification filed with the institution in which a prisoner is serving a sentence, advising that the prisoner is wanted to face pending criminal charges in another jurisdiction. How a prison first learns of a warrant or pending charges has no bearing on whether a detainer has been lodged. What matters is whether a notification satisfying the definition of a detainer is filed. Here, the sheriff’s department confirmed for the prison the existence of a nationwide arrest warrant and pending charges, and then faxed copies directly to the prison, which constituted a detainer. State v. Onheiber, 2009 WI App 180, 322 Wis. 2d 708, 777 N.W.2d 682, 09-0460.

976.05 Annotation When the defendant presented no evidence demonstrating that a 3rd party who signed a receipt for defendant’s request for a speedy trial was an agent for the prosecuting officer in this case, the date on which the defendant “caused to be delivered to the prosecuting officer” his request for a speedy trial under sub. (3) (a) was the date on which the parties agreed that the request was delivered to the district attorney’s office. State v. Thomas, 2013 WI App 78, 348 Wis. 2d 699, 834 N.W.2d 425, 12-0823.

976.05 Annotation Pursuant to Blackburn, in the absence of evidence of intentional or negligent sabotage by the state, the defendant is required to strictly comply with this section’s technical requirements. State v. Thomas, 2013 WI App 78, 348 Wis. 2d 699, 834 N.W.2d 425, 12-0823.

976.05 Annotation A writ of habeas corpus ad prosequendum issued by a federal court directing state authorities to produce a state prisoner for a federal criminal trial is not a detainer under this section. United States v. Mauro, 436 U.S. 340 (1978).

976.05 Annotation A prisoner has a right to a pretransfer hearing. Cuyler v. Adams, 449 U.S. 433 (1981).

976.06 976.06 Agreement on detainers; additional procedure. Following receipt of the officer’s written request as provided in s. 976.05 (4) (a), the prisoner shall forthwith be taken before a judge of a court of record of this state, who shall inform the prisoner of the request for temporary custody or availability, the crime with which charged and that the prisoner has the right to petition the governor to deny the request, to contest the request and to demand and procure legal counsel. If the prisoner or the prisoner’s counsel shall state that the prisoner or the prisoner and counsel desire to test the legality of granting temporary custody or availability, the judge shall set a date for hearing which shall be not later than the expiration of the 30-day period established by s. 976.05 (4) (a). If a hearing is set, notice of the hearing shall be given to the appropriate officer of the state requesting temporary custody or availability and to the authorities having custody of the prisoner in this state. The scope of any hearing or ruling under this section shall be confined to the request for temporary custody or availability, and to the identification of the person sought by the requesting state, but shall not encompass the guilt or innocence of the prisoner as to the crime charged by the requesting state.

976.06 History History: 1975 c. 158, 199; 1981 c. 390.

976.06 Note NOTE: See drafting file in Legislative Reference Bureau for Legislative Council Note to original bill. [Bill 263-A]

976.06 Annotation The state’s failure to hold a hearing within the 30-day period required discharge of the prisoner from a detainer. State v. Sykes, 91 Wis. 2d 436, 283 N.W.2d 446 (Ct. App. 1979).

976.06 Annotation Failure to meet the 30-day time limit requires the commencement of a new proceeding in order to obtain temporary custody over the subject of the petition. State ex rel. Kerr v. McCaughtry, 183 Wis. 2d 54, 515 N.W.2d 276 (Ct. App. 1994).

976.06 Annotation A defendant is prohibited from raising a constitutional issue on an s. 974.06 motion if the claim could have been raised in a previously filed s. 974.02 motion or a direct appeal. State v. Escalera-Naranjo, 185 Wis. 2d 169, 517 N.W.2d 157 (1994).

976.07 976.07 Agreements on extradition; Indian tribes.

976.07(1) (1) The attorney general may negotiate an agreement with any Indian tribe within the borders of this state exercising powers of self-government within the Indian country as defined in 18 USC 1151 to which this state has retroceded jurisdiction under 25 USC 1323, relating to the extradition of witnesses, fugitives and evidence found within the respective jurisdictions of this state and the tribe.

976.07(2) (2) An agreement negotiated under sub. (1) shall provide that a court of the sending jurisdiction, before issuing an order for the extradition of any person, shall:

976.07(2)(a) (a) Notify the person named in the extradition warrant of the right to a hearing and to legal counsel.

976.07(2)(b) (b) Hold a hearing to determine:

976.07(2)(b)1. 1. That the person named in the warrant is the person charged with the crime or is the witness demanded.

976.07(2)(b)2. 2. That there is probable cause to believe that the person named in a criminal extradition warrant was present in the demanding jurisdiction at the time of the alleged crime or that the person committed an act in any place with intent to commit a crime in the demanding jurisdiction.

976.07(2)(c) (c) If the person contests the legality of his or her arrest, allow a reasonable time within which the person may commence an action for habeas corpus.

976.07(3) (3) The attorney general shall submit agreements negotiated under sub. (1) to the governor for approval. The governor shall have 30 days in which to review the agreement. If the governor takes no action within 30 days, the agreement becomes effective.

976.07(4) (4) The attorney general shall provide technical assistance and material support necessary to implement any agreement under this section.

976.07(5) (5) An agreement under this section may be revoked by the governor, after consulting with the attorney general, or by the tribal chairperson upon 6 months’ written notice to the other party unless a different period of time is specified in the agreement.

976.07(6) (6) This section does not:

976.07(6)(a) (a) Enlarge the criminal or civil jurisdiction of either the state or a tribal government under federal law.

976.07(6)(b) (b) Permit an Indian tribe to enter into agreements other than those authorized by its organizational documents and laws.

976.07(6)(c) (c) Permit this state or any of its political subdivisions to enter into agreements prohibited by the state constitution.

976.07 History History: 1981 c. 368, 391.

976.08 976.08 Additional applicability. In this chapter, “prisoner” includes any person subject to an order under s. 938.183 who is confined to a Wisconsin state prison.

976.08 History History: 1987 a. 27; 1995 a. 77; 2005 a. 344; 2013 a. 334.