People v. McLemore , 411 Mich. 691 ( 1981 )

411 Mich. 691 (1981) 311 N.W.2d 720

PEOPLE
v.
McLEMORE

Docket Nos. 64801, 64802. (Calendar No. 3).

Supreme Court of Michigan.

Argued April 7, 1981. Decided November 2, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Chari Grove and Rolf E. Berg) and Hoffa, Chodak & Robiner for defendant.

PER CURIAM:

The dispositive issue is whether a writ of habeas corpus ad prosequendum^[1] constitutes a detainer^[2] within the meaning of the Interstate Agreement on Detainers, MCL 780.601 et seq.; MSA 4.147(1) et seq.

I

The prosecution, by means of writs of habeas corpus ad prosequendum issued by the Recorder's Court for the City of Detroit, secured the temporary custody of defendant from authorities at the federal prison in Milan, Michigan, to proceed against him on charges of murder, assault with intent to murder, and carrying a concealed weapon. All charges were dismissed with prejudice at the trial court level based upon a perceived violation of Article IV(c) of the Interstate Agreement on Detainers:

"In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty 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."

II

The prosecution appealed, claiming among other things that the Interstate Agreement on Detainers was inapplicable since a writ of habeas corpus ad prosequendum is not a detainer within the meaning of the Interstate Agreement on Detainers. Although the Court of Appeals rejected the prosecution's claim, the panel nonetheless remanded the case to the trial court for further proceedings because it was unable to determine from the record whether the murder charges and a carrying a concealed weapon charge had been brought within 120 days.^[3]

III

The Interstate Agreement on Detainers is a congressionally sanctioned interstate compact, construction of which presents a federal question.^[4] The United States Supreme Court has ruled that the provisions of the agreement apply if a participating jurisdiction which has untried charges against a prisoner lodges a detainer with the jurisdiction where the prisoner is incarcerated and that a writ of habeas corpus ad prosequendum is not a detainer within the meaning of the agreement. United States v Mauro, 436 U.S. 340; 98 S. Ct. 1834; 56 L. Ed. 2d 329 (1978). The decision in Mauro has been followed regardless of whether the writ emanated from federal or state court.^[5]

We conclude that the writ of habeas corpus ad prosequendum remains available as means for a state to seek temporary custody of an accused incarcerated in another jurisdiction. The decision by federal authorities to honor a writ in the absence of a detainer as a matter of comity does not trigger the provisions of the agreement. Since the prosecution in the instant case obtained temporary custody as a result of the writ and no detainer had been lodged against the defendant, the time provision for trial in Article IV(c) is inapplicable.

We reverse the judgments of the Court of Appeals and Recorder's Court for the City of Detroit, reinstate the charges against the defendant, and remand the case to the Recorder's Court for the City of Detroit for further proceedings consistent with this opinion. We do not address the issues raised on cross-appeal. Upon remand, the defendant may raise the issue involving his constitutional and statutory rights to a speedy trial as well as his claim that the murder charges should be dismissed because the prosecution breached an agreement to grant immunity. The people's motion to strike is denied as moot. We do not retain jurisdiction.

COLEMAN, C.J., and KAVANAGH, WILLIAMS, LEVIN, FITZGERALD, RYAN, and BLAIR MOODY, JR., JJ., concurred.

NOTES

[1] The common-law writ of habeas corpus ad prosequendum is an order by a court directing authorities to produce a prisoner to face criminal charges. See State v Fender, ___ W Va ___, ___; 268 SE2d 120, 123 (1980).

[2] A detainer is "``a notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction'". United States v Mauro, 436 U.S. 340, 359; 98 S. Ct. 1834; 56 L. Ed. 2d 329 (1978). In United States v Dixon, 592 F2d 329, 332, fn 3 (CA 6, 1979), the Court describes a detainer as

"simply a notice filed with the institution in which a prisoner is serving a sentence, advising that the prisoner is wanted to face pending criminal charges elsewhere, and requesting the custodian to notify the filing jurisdiction prior to releasing the prisoner. Filing a detainer is an informal process that generally can be done by any person who has authority to take a prisoner into custody. Furthermore, a detainer remains lodged against a prisoner without any action being taken on it. Ridgeway v United States, 558 F2d 357 (CA 6, 1977), cert den 436 U.S. 946; 98 S. Ct. 2850; 56 L. Ed. 2d 788 (1978). See also United States v Mauro, 436 U.S. 340; 98 S. Ct. 1834; 56 L. Ed. 2d 329 (1978)."

[3] 95 Mich. App. 536; 291 NW2d 109 (1980). The Court of Appeals reversed dismissal of another charge of carrying a concealed weapon after finding only 97 days of unexcused delay had lapsed at the time of dismissal.

[4] Cuyler v Adams, 449 U.S. 433; 101 S. Ct. 703; 66 L. Ed. 2d 641 (1981).

[5] See Foran v Metz, 463 F Supp 1088 (SD NY, 1979); United States ex rel Schlobohm v Medical Center for Federal Prisoners, 453 F Supp 618, 620 (SD Ill, 1978); Bean v United States, 409 A2d 1064, 1066 (DC App, 1979); People v Befeld, 90 Ill App 3d 772; 413 NE2d 550 (1980); State v Boone, 40 Md App 41; 388 A2d 150 (1978); Commonwealth v Florence, ___ Mass App ___, ___; 387 NE2d 152, 153 (1979); State v Kelsey, 592 S.W.2d 509 (Mo App, 1979); Commonwealth v Diggs, 273 Pa Super 121; 416 A2d 1119 (1979); Moore v Whyte, ___ W Va ___; 266 SE2d 137 (1980). See generally Anno: Interstate Agreement on Detainers Act, 98 ALR3d 160, 192-195, 245-247.