IC 35-33-10
Chapter 10. Securing Attendance of Defendants and Uniform
Extradition Act
IC 35-33-10-1 Defendant in custody; order to appear; defendant at liberty; notice
to appear; arrest upon failure to appear
Sec. 1. (a) When a criminal action is pending against a defendant
and the defendant is in the custody of any law enforcement officer,
the court may order the law enforcement officer to produce the
defendant before the court for prosecution. If the defendant is at
liberty within the state as a result of an order releasing him on his
own recognizance or on bail, the court may cause the defendant or
his attorney to be notified to appear at a designated time. Upon
failure to appear after such notification, the court may issue a
warrant for the defendant's immediate arrest.
(b) The method selected to secure the attendance of the defendant
shall not be a ground for objection at any stage of the criminal
proceeding if the method is allowed by this article. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-2 Defendant confined under judgment or court order or awaiting
trial for another offense; order or warrant of detainer
Sec. 2. (a) When an indictment or information is pending against
a defendant confined in this state under a judgment or court order,
the court with jurisdiction over the pending criminal action shall,
after application by the prosecuting attorney, order that the defendant
be produced before the court for prosecution. The defendant shall not
be entitled to release pending trial on the indictment or information.
The court may order that the defendant be surrendered to the sheriff
of the county in which the court issuing the order is located. The
court may order the sheriff to convey the defendant from the
institution and commit the defendant to the jail or to another place of
custody specified in the order. If the proceeding is delayed, the court
may order the defendant returned temporarily to the institution until
the presence of the defendant before the court is required.
(b) When an indictment or information is pending against a
defendant:
(1) confined in an institution within this state pending trial for
another offense; or
(2) who has been released by order of another court pending
trial before that court for another offense;
the court shall, upon motion of the prosecuting attorney, issue a
warrant of detainer to the court before which the other prosecution
is pending. The court to which the order of detainer is issued, shall,
upon termination of the proceedings before the court, deliver custody
of the defendant to the sheriff of the county in which the court
issuing the warrant is situated. Upon delivery, the court shall return
the warrant to the court of issuance showing such fact. A duplicate
copy of the return shall be served upon the prosecuting attorney who
requested the issuance of the warrant. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-3 Uniform Criminal Extradition Act
Sec. 3. (1) Where appearing in this section, the term "governor"
includes any person performing the functions of governor by
authority of the law of this state. The term "executive authority"
includes the governor and any person performing the functions of
governor in a state other than this state. The term "state", referring to
a state other than this state, refers to any other state or territory,
organized or unorganized, of the United States of America.
(2) Subject to the qualifications of this section and the provisions
of the Constitution of the United States controlling, and acts of
congress in pursuance thereof, it is the duty of the governor of this
state to have arrested and delivered up to the executive authority of
any other state of the United States any person charged in that state
with treason, a felony, or other crime who has fled from justice and
is found in this state.
(3) No demand for the extradition of a person charged with crime
in another state shall be recognized by the governor unless in writing
and accompanied by a copy of an indictment found or by an
information supported by affidavit in the state having jurisdiction of
the crime, or by a copy of an affidavit made before a magistrate
there, together with a copy of any warrant which was issued thereon.
The indictment, information, or affidavit made before the magistrate
must substantially charge the person demanded with having
committed a crime under the law of that state; and the copy must be
authenticated by the executive authority making the demand, which
shall be prima facie evidence of its truth.
(4) When a demand shall be made upon the governor of this state
by the executive authority of another state for the surrender of a
person so charged with crime, the governor may call upon the
attorney general or any prosecuting officer in this state to investigate
or assist in investigating the demand, and to report to him the
situation and circumstances of the person so demanded, and whether
he ought to be surrendered.
(5) A warrant of extradition shall not be issued unless the
documents presented by the executive authority making the demand
show that:
(a) except in cases arising under subsection 7 of this section, the
accused was present in the demanding state at the time of the
commission of the alleged crime, and thereafter fled from the
state;
(b) the accused is now in this state; and
(c) he is lawfully charged by indictment found or by
information filed by a prosecuting officer and supported by
affidavit to the facts, or by affidavit made before a magistrate
in that state, with having committed a crime under the laws of
that state, or that he has been convicted of a crime in that state
and has escaped from confinement or has broken the terms of
his bail, probation, or parole, or that the sentence or some
portion of it otherwise remains unexecuted and that the person
claimed has not been discharged or otherwise released from the
sentence.
(6) When it is desired to have returned to this state a person
charged in this state with a crime, and such person is imprisoned or
is held under criminal proceedings then pending against him in
another state, the governor of this state may agree with the executive
authority of such other state for the extradition of such person before
the conclusion of such proceedings or his term of sentence in such
other state, upon condition that such person be returned to such other
state at the expense of this state as soon as the prosecution in this
state is terminated. The governor of this state may also surrender on
demand of the executive authority of any other state any person in
this state who is charged in the manner provided in subsection 24 of
this section with having violated the laws of the state whose
executive authority is making the demand, even though such person
left the demanding state involuntarily.
(7) The governor of this state may also surrender, on demand of
the executive authority of any other state, any person in this state
charged in such other state in the manner provided in subsection 5 of
this section with committing an act in this state, or in a third state,
intentionally resulting in a crime in the state whose executive
authority is making the demand; and the provisions of this section
not otherwise inconsistent shall apply to such cases, notwithstanding
that the accused was not in that state at the time of the commission
of the crime and has not fled therefrom.
(8) If the governor shall decide that the demand should be
complied with, he shall sign a warrant of arrest, which shall be sealed
with the state seal, and be directed to a sheriff, marshal, coroner, or
other person whom he may think fit to entrust with the execution
thereof; and the warrant must substantially recite the facts necessary
to the validity of its issue.
(9) Such warrant shall authorize the officer or other person to
whom directed to arrest the accused at any place where he may be
found within the state, to command the aid of all sheriffs and law
enforcement officers in the execution of the warrant, and to deliver
the accused subject to the provision of this section, to the duly
authorized agent of the demanding state.
(10) Every such officer or other person empowered to make the
arrest shall have the same authority in arresting the accused to
command assistance therein, as sheriffs and other officers have by
law in the execution of any criminal process directed to them, with
the like penalties against those who refuse their assistance.
(11) 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 has been informed of the demand
made for his surrender, of the crime with which he is charged and
that he has the right to demand legal counsel; and if the prisoner, his
friends, or counsel shall state that he or they desire to test the legality
of the arrest, the prisoner shall be taken forthwith before a judge of
a court of record in this state who shall fix a reasonable time to be
allowed him within which to apply for a writ of habeas corpus. And
when such writ is applied for, notice thereof, and of the time and
place of hearing thereon, shall be given to the public 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.
(12) An officer who recklessly delivers to the agent for extradition
of the demanding state a person in his custody under the governor's
warrant in disobedience to subsection 11 of this section commits a
Class B misdemeanor.
(13) The officer or person executing the governor's warrant of
arrest, or the agent of the demanding state to whom the prisoner may
have been delivered, may, when necessary, confine the prisoner in
the jail of any county or city through which he may pass; and the
keeper of such jail must receive and safely keep the prisoner until the
person having charge of him is ready to proceed on his route, such
person being chargeable with the expense of keeping.
(14) Whenever any person within this state shall be charged on
the oath of any credible person before any judge of this state with the
commission of a crime in any other state, and, except in cases arising
under subsection 7 of this section, with having fled from justice, or
whenever complaint shall have been made before any judge in this
state setting forth on the affidavit of any credible person in another
state that a treason or felony has been committed in such other state
and that the accused has been charged in such state with the
commission of the treason or felony, and, except in cases arising
under subsection 7 of this section, has fled therefrom and is believed
to have been found in this state, the judge shall issue a warrant
directed to the sheriff of the county in which the oath or complaint
is filed directing him to apprehend the person charged, wherever he
may be found in this state, and bring him before the same or any
other judge, who may be convenient of access to the place where the
arrest may be made, to answer the charge or complaint and affidavit.
A certified copy of the sworn charge or complaint and affidavit upon
which the warrant is issued shall be attached to the warrant.
(15) The arrest of a person may be lawfully made also by an
officer or a private citizen without a warrant upon reasonable
information that the accused stands charged in the courts of another
state with a crime punishable by death or imprisonment for a term
exceeding one (1) year; but when so arrested the accused must be
taken before a judge with all practicable speed, and complaint must
be made against him under oath setting forth the ground for the arrest
as in the last preceding subsection; and thereafter his answer shall be
heard as if he has been arrested on warrant.
(16) If from the examination before the judge, it appears that the
person held is the person charged with having committed the crime
alleged and that he probably committed the crime, and, except in
cases arising under subsection 7 of this section, that he has fled from
justice, the judge shall commit him to jail by a warrant reciting the
accusation for such time specified in the warrant as will enable the
arrest of the accused to be made under a warrant of the governor on
a requisition of the executive authority of the state having
jurisdiction of the offense, unless the accused gives bail as provided
in subsection 17 of this section, or until he shall be legally
discharged.
(17) Unless the offense with which the prisoner is charged is
shown to be an offense punishable by death or life imprisonment
under the laws of the state in which it was committed, the judge must
admit the person arrested to bail by bond or undertaking, with
sufficient sureties, and in such sum as he deems proper, for his
appearance before him at a time specified in such bond or
undertaking, and for his surrender, to be arrested upon the warrant of
the governor of this state. The prisoner shall not be admitted to bail
after issuance of a warrant by the governor of this state.
(18) If the accused is not yet arrested under warrant of the
governor by the expiration of the time specified in the warrant, bond,
or undertaking, the judge may discharge him or may recommit him
to a further day, or may again take bail for his appearance and
surrender, as provided in subsection 17 of this section; and at the
expiration of the second period of commitment, or if he has been
bailed and appeared according to the terms of his bond or
undertaking, the judge may either discharge him, or may require him
to enter into a new bond or undertaking, to appear and surrender
himself at another day.
(19) If the prisoner is admitted to bail and fails to appear and
surrender himself according to the conditions of his bond, the court,
by proper order, shall declare the bond forfeited; and recovery may
be had thereon in the name of the state as in the case of other bonds
or undertakings given by the accused in criminal proceedings within
this state.
(20) If a criminal prosecution has been instituted against such
person under the laws of this state and is still pending, the governor
at his discretion either may surrender him on the demand of the
executive authority of another state or may hold him until he has
been tried and discharged, or convicted and punished in this state.
(21) The guilt or innocence of the accused as to the crime of
which he is charged may not be inquired into by the governor or in
any proceedings after the demand for extradition accompanied by a
charge of crime in legal form as above provided shall have been
presented to the governor, except as it may be involved in identifying
the person held as the person charged with the crime.
(22) The governor may recall his warrant of arrest or may issue
another warrant whenever he deems proper.
(23) Whenever the governor of this state shall demand a person
charged with a crime in this state from the chief executive of any
other state or from the chief justice or an associate justice of the
Supreme Court of the District of Columbia authorized to receive
such demand under the laws of the United States, he shall issue a
warrant under the seal of this state to some agent commanding him
to receive the person so charged if delivered to him and convey him
to the proper officer of the county in this state in which the offense
was committed.
(24) When the return to this state of a person charged with a crime
in this state is required, the prosecuting attorney of the county in
which the offense is committed shall present to the governor his
written application for a requisition for the return of the person
charged, in which application shall be stated the name of the person
so charged, the crime charged against him, the approximate time,
place, and circumstances of its committal, the state in which he is
believed to be, including the location of the accused therein at the
time the application is made, and certifying that in the opinion of the
said prosecuting attorney the ends of justice require the arrest and
return of the accused to this state for trial, and that the proceeding is
not instituted to enforce a private claim. The application shall be
verified by affidavit, shall be executed in triplicate, and shall be
accompanied by three (3) certified copies of the indictment returned,
or information and affidavit filed, or of the complaint made to the
magistrate, stating the offense with which the accused is charged.
The prosecuting attorney may also attach such further affidavits and
other documents in triplicate as he shall deem proper to be submitted
with such application. One (1) copy of the application with the action
of the governor indicated by the endorsement thereon and one (1) of
the certified copies of the indictment or complaint or information and
affidavit shall be filed in the office of the secretary of state to remain
of record in that office. The other copies of all papers shall be
forwarded with the governor's requisition.
(25) The expenses shall be paid out of the general fund of the
county treasury of the county wherein the crime is alleged to have
been committed. The expenses shall be the fees paid to the officers
of the state on whose governor the requisition is made, as now
provided by law, for all necessary travel in returning such prisoner.
(26) A person brought into this state on extradition based on a
criminal charge shall not be subject to service of personal process in
civil actions arising out of the same facts as the criminal proceeding
to answer for which he is returned until he has been convicted in the
criminal proceeding, or if acquitted, until he has had ample
opportunity to return to the state from which he was extradited.
(27) After a person has been brought back to this state upon
extradition proceedings, he may be tried in this state for other crimes
which he may be charged with having committed here, as well as that
specified in the requisition for his extradition.
(28) This section shall be so interpreted and construed as to
effectuate its general purpose to make uniform the law of those states
which enact it.
(29) Nothing in this section contained shall be deemed to
constitute a waiver by the state of its right, power, or privilege to
regain custody of such person by extradition proceedings or
otherwise for the purpose of trial, sentence, or punishment for any
crime committed within this state, nor shall any proceedings had
under this section which result in, or fail to result in, extradition be
deemed a waiver by this state of any of its rights, privileges, or
jurisdiction in any way whatsoever.
(30) This section may be cited as the Uniform Criminal
Extradition Act. As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.178-1984,
SEC.1.
IC 35-33-10-4 Agreement on detainers; defendants confined in other jurisdiction
of United States
Sec. 4. 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.
IC 35-33-10-5 Defendants confined in federal institutions
Sec. 5. Securing Attendance of Defendant Confined in Federal
Institutions. (1) A defendant against whom a criminal action is
pending in a court of record of this state, and who is confined in a
federal prison or other institution either within or outside this state,
may, with the consent of the attorney general of the United States, be
produced in such court for the purpose of criminal prosecution,
pursuant to the provisions of:
(a) Section four thousand eighty-five of title eighteen of the
United States Code as in effect on July 26, 1973; or
(b) subsection 2 of this section.
(2) When such a defendant is in federal custody as specified in
subsection 1, a court in which the criminal action against such
defendant is pending, may, upon application of the prosecuting
attorney of such county, issue a certificate, known as a writ of habeas
corpus ad prosequendum, addressed to the attorney general of the
United States, certifying that such defendant has been charged by
indictment or information filed against him in the specified court
with the offense or offenses alleged therein, and that attendance of
the defendant in such court for the purpose of criminal prosecution
thereon is necessary in the interest of justice and requesting the
attorney general of the United States to cause such defendant to be
produced in such court, under custody of a federal public servant,
upon a designated date and for a period of time necessary to
complete the prosecution. Upon issuing such a certificate, the court
may deliver it, or cause or authorize it to be delivered, together with
a certified copy of the indictment or information upon which it is
based, to the attorney general of the United States or to his
representative authorized to entertain the request. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-6 Defendants outside United States
Sec. 6. Securing Attendance of Defendants Who Are Outside The
United States. (1) When a criminal action for a crime committed in
this state is pending in a court of this state with jurisdiction over the
crime against a defendant who is in a foreign country with which the
United States has an extradition treaty, and when the indictment or
information charges a crime which is specified in such treaty as an
extraditable one, the prosecuting attorney of the county in which
such crime was allegedly committed may make an application to the
governor, requesting him to make an application to the president of
the United States to institute extradition proceedings for the return
of the defendant to this country and state for the purpose of
prosecution of such action. The prosecuting attorney's application
must comply with any rules, regulations and guidelines established
by the governor for such applications and must be accompanied by
all the documents required by such rules, regulations and guidelines.
(2) Upon receipt of the prosecuting attorney's application, the
governor if satisfied that the defendant is in the foreign country in
question, that the crime charged is an extraditable one pursuant to the
treaty in question, and that there are no factors or impediments which
in law preclude such an extradition, may in his discretion make an
application, addressed to the secretary of state of the United States,
requesting that the president of the United States institute extradition
proceedings for the return of the defendant from such foreign
country. The governor's application must comply with any rules,
regulations and guidelines established by the secretary of state for
such applications and must be accompanied by all the documents
required by such rules, regulations and guidelines.
(3) If the governor's application is granted and the extradition is
achieved or attempted, all expenses incurred therein must be borne
by the county from which the application emanated.
(4) The provisions of this section apply equally to extradition or
attempted extradition of a person who is a fugitive following the
entry of a judgment of conviction against him in a criminal court of
this state. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-7 Corporate defendants
Sec. 7. Securing Attendance of Corporate Defendants. (1) The
court attendance of a corporation for purposes of commencing or
prosecuting a criminal action against it may be accomplished by the
issuance and service of a summons.
(a) A corporation shall be deemed in attendance for purposes of
commencing or prosecuting a criminal action against it whenever an
officer, director or counsel for such corporation is present. If such
officer, director or counsel fails or refuses to appear, the court shall
proceed with trial and judgment. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10
Chapter 10. Securing Attendance of Defendants and Uniform
Extradition Act
IC 35-33-10-1 Defendant in custody; order to appear; defendant at liberty; notice
to appear; arrest upon failure to appear
Sec. 1. (a) When a criminal action is pending against a defendant
and the defendant is in the custody of any law enforcement officer,
the court may order the law enforcement officer to produce the
defendant before the court for prosecution. If the defendant is at
liberty within the state as a result of an order releasing him on his
own recognizance or on bail, the court may cause the defendant or
his attorney to be notified to appear at a designated time. Upon
failure to appear after such notification, the court may issue a
warrant for the defendant's immediate arrest.
(b) The method selected to secure the attendance of the defendant
shall not be a ground for objection at any stage of the criminal
proceeding if the method is allowed by this article. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-2 Defendant confined under judgment or court order or awaiting
trial for another offense; order or warrant of detainer
Sec. 2. (a) When an indictment or information is pending against
a defendant confined in this state under a judgment or court order,
the court with jurisdiction over the pending criminal action shall,
after application by the prosecuting attorney, order that the defendant
be produced before the court for prosecution. The defendant shall not
be entitled to release pending trial on the indictment or information.
The court may order that the defendant be surrendered to the sheriff
of the county in which the court issuing the order is located. The
court may order the sheriff to convey the defendant from the
institution and commit the defendant to the jail or to another place of
custody specified in the order. If the proceeding is delayed, the court
may order the defendant returned temporarily to the institution until
the presence of the defendant before the court is required.
(b) When an indictment or information is pending against a
defendant:
(1) confined in an institution within this state pending trial for
another offense; or
(2) who has been released by order of another court pending
trial before that court for another offense;
the court shall, upon motion of the prosecuting attorney, issue a
warrant of detainer to the court before which the other prosecution
is pending. The court to which the order of detainer is issued, shall,
upon termination of the proceedings before the court, deliver custody
of the defendant to the sheriff of the county in which the court
issuing the warrant is situated. Upon delivery, the court shall return
the warrant to the court of issuance showing such fact. A duplicate
copy of the return shall be served upon the prosecuting attorney who
requested the issuance of the warrant. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-3 Uniform Criminal Extradition Act
Sec. 3. (1) Where appearing in this section, the term "governor"
includes any person performing the functions of governor by
authority of the law of this state. The term "executive authority"
includes the governor and any person performing the functions of
governor in a state other than this state. The term "state", referring to
a state other than this state, refers to any other state or territory,
organized or unorganized, of the United States of America.
(2) Subject to the qualifications of this section and the provisions
of the Constitution of the United States controlling, and acts of
congress in pursuance thereof, it is the duty of the governor of this
state to have arrested and delivered up to the executive authority of
any other state of the United States any person charged in that state
with treason, a felony, or other crime who has fled from justice and
is found in this state.
(3) No demand for the extradition of a person charged with crime
in another state shall be recognized by the governor unless in writing
and accompanied by a copy of an indictment found or by an
information supported by affidavit in the state having jurisdiction of
the crime, or by a copy of an affidavit made before a magistrate
there, together with a copy of any warrant which was issued thereon.
The indictment, information, or affidavit made before the magistrate
must substantially charge the person demanded with having
committed a crime under the law of that state; and the copy must be
authenticated by the executive authority making the demand, which
shall be prima facie evidence of its truth.
(4) When a demand shall be made upon the governor of this state
by the executive authority of another state for the surrender of a
person so charged with crime, the governor may call upon the
attorney general or any prosecuting officer in this state to investigate
or assist in investigating the demand, and to report to him the
situation and circumstances of the person so demanded, and whether
he ought to be surrendered.
(5) A warrant of extradition shall not be issued unless the
documents presented by the executive authority making the demand
show that:
(a) except in cases arising under subsection 7 of this section, the
accused was present in the demanding state at the time of the
commission of the alleged crime, and thereafter fled from the
state;
(b) the accused is now in this state; and
(c) he is lawfully charged by indictment found or by
information filed by a prosecuting officer and supported by
affidavit to the facts, or by affidavit made before a magistrate
in that state, with having committed a crime under the laws of
that state, or that he has been convicted of a crime in that state
and has escaped from confinement or has broken the terms of
his bail, probation, or parole, or that the sentence or some
portion of it otherwise remains unexecuted and that the person
claimed has not been discharged or otherwise released from the
sentence.
(6) When it is desired to have returned to this state a person
charged in this state with a crime, and such person is imprisoned or
is held under criminal proceedings then pending against him in
another state, the governor of this state may agree with the executive
authority of such other state for the extradition of such person before
the conclusion of such proceedings or his term of sentence in such
other state, upon condition that such person be returned to such other
state at the expense of this state as soon as the prosecution in this
state is terminated. The governor of this state may also surrender on
demand of the executive authority of any other state any person in
this state who is charged in the manner provided in subsection 24 of
this section with having violated the laws of the state whose
executive authority is making the demand, even though such person
left the demanding state involuntarily.
(7) The governor of this state may also surrender, on demand of
the executive authority of any other state, any person in this state
charged in such other state in the manner provided in subsection 5 of
this section with committing an act in this state, or in a third state,
intentionally resulting in a crime in the state whose executive
authority is making the demand; and the provisions of this section
not otherwise inconsistent shall apply to such cases, notwithstanding
that the accused was not in that state at the time of the commission
of the crime and has not fled therefrom.
(8) If the governor shall decide that the demand should be
complied with, he shall sign a warrant of arrest, which shall be sealed
with the state seal, and be directed to a sheriff, marshal, coroner, or
other person whom he may think fit to entrust with the execution
thereof; and the warrant must substantially recite the facts necessary
to the validity of its issue.
(9) Such warrant shall authorize the officer or other person to
whom directed to arrest the accused at any place where he may be
found within the state, to command the aid of all sheriffs and law
enforcement officers in the execution of the warrant, and to deliver
the accused subject to the provision of this section, to the duly
authorized agent of the demanding state.
(10) Every such officer or other person empowered to make the
arrest shall have the same authority in arresting the accused to
command assistance therein, as sheriffs and other officers have by
law in the execution of any criminal process directed to them, with
the like penalties against those who refuse their assistance.
(11) 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 has been informed of the demand
made for his surrender, of the crime with which he is charged and
that he has the right to demand legal counsel; and if the prisoner, his
friends, or counsel shall state that he or they desire to test the legality
of the arrest, the prisoner shall be taken forthwith before a judge of
a court of record in this state who shall fix a reasonable time to be
allowed him within which to apply for a writ of habeas corpus. And
when such writ is applied for, notice thereof, and of the time and
place of hearing thereon, shall be given to the public 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.
(12) An officer who recklessly delivers to the agent for extradition
of the demanding state a person in his custody under the governor's
warrant in disobedience to subsection 11 of this section commits a
Class B misdemeanor.
(13) The officer or person executing the governor's warrant of
arrest, or the agent of the demanding state to whom the prisoner may
have been delivered, may, when necessary, confine the prisoner in
the jail of any county or city through which he may pass; and the
keeper of such jail must receive and safely keep the prisoner until the
person having charge of him is ready to proceed on his route, such
person being chargeable with the expense of keeping.
(14) Whenever any person within this state shall be charged on
the oath of any credible person before any judge of this state with the
commission of a crime in any other state, and, except in cases arising
under subsection 7 of this section, with having fled from justice, or
whenever complaint shall have been made before any judge in this
state setting forth on the affidavit of any credible person in another
state that a treason or felony has been committed in such other state
and that the accused has been charged in such state with the
commission of the treason or felony, and, except in cases arising
under subsection 7 of this section, has fled therefrom and is believed
to have been found in this state, the judge shall issue a warrant
directed to the sheriff of the county in which the oath or complaint
is filed directing him to apprehend the person charged, wherever he
may be found in this state, and bring him before the same or any
other judge, who may be convenient of access to the place where the
arrest may be made, to answer the charge or complaint and affidavit.
A certified copy of the sworn charge or complaint and affidavit upon
which the warrant is issued shall be attached to the warrant.
(15) The arrest of a person may be lawfully made also by an
officer or a private citizen without a warrant upon reasonable
information that the accused stands charged in the courts of another
state with a crime punishable by death or imprisonment for a term
exceeding one (1) year; but when so arrested the accused must be
taken before a judge with all practicable speed, and complaint must
be made against him under oath setting forth the ground for the arrest
as in the last preceding subsection; and thereafter his answer shall be
heard as if he has been arrested on warrant.
(16) If from the examination before the judge, it appears that the
person held is the person charged with having committed the crime
alleged and that he probably committed the crime, and, except in
cases arising under subsection 7 of this section, that he has fled from
justice, the judge shall commit him to jail by a warrant reciting the
accusation for such time specified in the warrant as will enable the
arrest of the accused to be made under a warrant of the governor on
a requisition of the executive authority of the state having
jurisdiction of the offense, unless the accused gives bail as provided
in subsection 17 of this section, or until he shall be legally
discharged.
(17) Unless the offense with which the prisoner is charged is
shown to be an offense punishable by death or life imprisonment
under the laws of the state in which it was committed, the judge must
admit the person arrested to bail by bond or undertaking, with
sufficient sureties, and in such sum as he deems proper, for his
appearance before him at a time specified in such bond or
undertaking, and for his surrender, to be arrested upon the warrant of
the governor of this state. The prisoner shall not be admitted to bail
after issuance of a warrant by the governor of this state.
(18) If the accused is not yet arrested under warrant of the
governor by the expiration of the time specified in the warrant, bond,
or undertaking, the judge may discharge him or may recommit him
to a further day, or may again take bail for his appearance and
surrender, as provided in subsection 17 of this section; and at the
expiration of the second period of commitment, or if he has been
bailed and appeared according to the terms of his bond or
undertaking, the judge may either discharge him, or may require him
to enter into a new bond or undertaking, to appear and surrender
himself at another day.
(19) If the prisoner is admitted to bail and fails to appear and
surrender himself according to the conditions of his bond, the court,
by proper order, shall declare the bond forfeited; and recovery may
be had thereon in the name of the state as in the case of other bonds
or undertakings given by the accused in criminal proceedings within
this state.
(20) If a criminal prosecution has been instituted against such
person under the laws of this state and is still pending, the governor
at his discretion either may surrender him on the demand of the
executive authority of another state or may hold him until he has
been tried and discharged, or convicted and punished in this state.
(21) The guilt or innocence of the accused as to the crime of
which he is charged may not be inquired into by the governor or in
any proceedings after the demand for extradition accompanied by a
charge of crime in legal form as above provided shall have been
presented to the governor, except as it may be involved in identifying
the person held as the person charged with the crime.
(22) The governor may recall his warrant of arrest or may issue
another warrant whenever he deems proper.
(23) Whenever the governor of this state shall demand a person
charged with a crime in this state from the chief executive of any
other state or from the chief justice or an associate justice of the
Supreme Court of the District of Columbia authorized to receive
such demand under the laws of the United States, he shall issue a
warrant under the seal of this state to some agent commanding him
to receive the person so charged if delivered to him and convey him
to the proper officer of the county in this state in which the offense
was committed.
(24) When the return to this state of a person charged with a crime
in this state is required, the prosecuting attorney of the county in
which the offense is committed shall present to the governor his
written application for a requisition for the return of the person
charged, in which application shall be stated the name of the person
so charged, the crime charged against him, the approximate time,
place, and circumstances of its committal, the state in which he is
believed to be, including the location of the accused therein at the
time the application is made, and certifying that in the opinion of the
said prosecuting attorney the ends of justice require the arrest and
return of the accused to this state for trial, and that the proceeding is
not instituted to enforce a private claim. The application shall be
verified by affidavit, shall be executed in triplicate, and shall be
accompanied by three (3) certified copies of the indictment returned,
or information and affidavit filed, or of the complaint made to the
magistrate, stating the offense with which the accused is charged.
The prosecuting attorney may also attach such further affidavits and
other documents in triplicate as he shall deem proper to be submitted
with such application. One (1) copy of the application with the action
of the governor indicated by the endorsement thereon and one (1) of
the certified copies of the indictment or complaint or information and
affidavit shall be filed in the office of the secretary of state to remain
of record in that office. The other copies of all papers shall be
forwarded with the governor's requisition.
(25) The expenses shall be paid out of the general fund of the
county treasury of the county wherein the crime is alleged to have
been committed. The expenses shall be the fees paid to the officers
of the state on whose governor the requisition is made, as now
provided by law, for all necessary travel in returning such prisoner.
(26) A person brought into this state on extradition based on a
criminal charge shall not be subject to service of personal process in
civil actions arising out of the same facts as the criminal proceeding
to answer for which he is returned until he has been convicted in the
criminal proceeding, or if acquitted, until he has had ample
opportunity to return to the state from which he was extradited.
(27) After a person has been brought back to this state upon
extradition proceedings, he may be tried in this state for other crimes
which he may be charged with having committed here, as well as that
specified in the requisition for his extradition.
(28) This section shall be so interpreted and construed as to
effectuate its general purpose to make uniform the law of those states
which enact it.
(29) Nothing in this section contained shall be deemed to
constitute a waiver by the state of its right, power, or privilege to
regain custody of such person by extradition proceedings or
otherwise for the purpose of trial, sentence, or punishment for any
crime committed within this state, nor shall any proceedings had
under this section which result in, or fail to result in, extradition be
deemed a waiver by this state of any of its rights, privileges, or
jurisdiction in any way whatsoever.
(30) This section may be cited as the Uniform Criminal
Extradition Act. As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.178-1984,
SEC.1.
IC 35-33-10-4 Agreement on detainers; defendants confined in other jurisdiction
of United States
Sec. 4. 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.
IC 35-33-10-5 Defendants confined in federal institutions
Sec. 5. Securing Attendance of Defendant Confined in Federal
Institutions. (1) A defendant against whom a criminal action is
pending in a court of record of this state, and who is confined in a
federal prison or other institution either within or outside this state,
may, with the consent of the attorney general of the United States, be
produced in such court for the purpose of criminal prosecution,
pursuant to the provisions of:
(a) Section four thousand eighty-five of title eighteen of the
United States Code as in effect on July 26, 1973; or
(b) subsection 2 of this section.
(2) When such a defendant is in federal custody as specified in
subsection 1, a court in which the criminal action against such
defendant is pending, may, upon application of the prosecuting
attorney of such county, issue a certificate, known as a writ of habeas
corpus ad prosequendum, addressed to the attorney general of the
United States, certifying that such defendant has been charged by
indictment or information filed against him in the specified court
with the offense or offenses alleged therein, and that attendance of
the defendant in such court for the purpose of criminal prosecution
thereon is necessary in the interest of justice and requesting the
attorney general of the United States to cause such defendant to be
produced in such court, under custody of a federal public servant,
upon a designated date and for a period of time necessary to
complete the prosecution. Upon issuing such a certificate, the court
may deliver it, or cause or authorize it to be delivered, together with
a certified copy of the indictment or information upon which it is
based, to the attorney general of the United States or to his
representative authorized to entertain the request. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-6 Defendants outside United States
Sec. 6. Securing Attendance of Defendants Who Are Outside The
United States. (1) When a criminal action for a crime committed in
this state is pending in a court of this state with jurisdiction over the
crime against a defendant who is in a foreign country with which the
United States has an extradition treaty, and when the indictment or
information charges a crime which is specified in such treaty as an
extraditable one, the prosecuting attorney of the county in which
such crime was allegedly committed may make an application to the
governor, requesting him to make an application to the president of
the United States to institute extradition proceedings for the return
of the defendant to this country and state for the purpose of
prosecution of such action. The prosecuting attorney's application
must comply with any rules, regulations and guidelines established
by the governor for such applications and must be accompanied by
all the documents required by such rules, regulations and guidelines.
(2) Upon receipt of the prosecuting attorney's application, the
governor if satisfied that the defendant is in the foreign country in
question, that the crime charged is an extraditable one pursuant to the
treaty in question, and that there are no factors or impediments which
in law preclude such an extradition, may in his discretion make an
application, addressed to the secretary of state of the United States,
requesting that the president of the United States institute extradition
proceedings for the return of the defendant from such foreign
country. The governor's application must comply with any rules,
regulations and guidelines established by the secretary of state for
such applications and must be accompanied by all the documents
required by such rules, regulations and guidelines.
(3) If the governor's application is granted and the extradition is
achieved or attempted, all expenses incurred therein must be borne
by the county from which the application emanated.
(4) The provisions of this section apply equally to extradition or
attempted extradition of a person who is a fugitive following the
entry of a judgment of conviction against him in a criminal court of
this state. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-7 Corporate defendants
Sec. 7. Securing Attendance of Corporate Defendants. (1) The
court attendance of a corporation for purposes of commencing or
prosecuting a criminal action against it may be accomplished by the
issuance and service of a summons.
(a) A corporation shall be deemed in attendance for purposes of
commencing or prosecuting a criminal action against it whenever an
officer, director or counsel for such corporation is present. If such
officer, director or counsel fails or refuses to appear, the court shall
proceed with trial and judgment. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10
Chapter 10. Securing Attendance of Defendants and Uniform
Extradition Act
IC 35-33-10-1 Defendant in custody; order to appear; defendant at liberty; notice
to appear; arrest upon failure to appear
Sec. 1. (a) When a criminal action is pending against a defendant
and the defendant is in the custody of any law enforcement officer,
the court may order the law enforcement officer to produce the
defendant before the court for prosecution. If the defendant is at
liberty within the state as a result of an order releasing him on his
own recognizance or on bail, the court may cause the defendant or
his attorney to be notified to appear at a designated time. Upon
failure to appear after such notification, the court may issue a
warrant for the defendant's immediate arrest.
(b) The method selected to secure the attendance of the defendant
shall not be a ground for objection at any stage of the criminal
proceeding if the method is allowed by this article. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-2 Defendant confined under judgment or court order or awaiting
trial for another offense; order or warrant of detainer
Sec. 2. (a) When an indictment or information is pending against
a defendant confined in this state under a judgment or court order,
the court with jurisdiction over the pending criminal action shall,
after application by the prosecuting attorney, order that the defendant
be produced before the court for prosecution. The defendant shall not
be entitled to release pending trial on the indictment or information.
The court may order that the defendant be surrendered to the sheriff
of the county in which the court issuing the order is located. The
court may order the sheriff to convey the defendant from the
institution and commit the defendant to the jail or to another place of
custody specified in the order. If the proceeding is delayed, the court
may order the defendant returned temporarily to the institution until
the presence of the defendant before the court is required.
(b) When an indictment or information is pending against a
defendant:
(1) confined in an institution within this state pending trial for
another offense; or
(2) who has been released by order of another court pending
trial before that court for another offense;
the court shall, upon motion of the prosecuting attorney, issue a
warrant of detainer to the court before which the other prosecution
is pending. The court to which the order of detainer is issued, shall,
upon termination of the proceedings before the court, deliver custody
of the defendant to the sheriff of the county in which the court
issuing the warrant is situated. Upon delivery, the court shall return
the warrant to the court of issuance showing such fact. A duplicate
copy of the return shall be served upon the prosecuting attorney who
requested the issuance of the warrant. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-3 Uniform Criminal Extradition Act
Sec. 3. (1) Where appearing in this section, the term "governor"
includes any person performing the functions of governor by
authority of the law of this state. The term "executive authority"
includes the governor and any person performing the functions of
governor in a state other than this state. The term "state", referring to
a state other than this state, refers to any other state or territory,
organized or unorganized, of the United States of America.
(2) Subject to the qualifications of this section and the provisions
of the Constitution of the United States controlling, and acts of
congress in pursuance thereof, it is the duty of the governor of this
state to have arrested and delivered up to the executive authority of
any other state of the United States any person charged in that state
with treason, a felony, or other crime who has fled from justice and
is found in this state.
(3) No demand for the extradition of a person charged with crime
in another state shall be recognized by the governor unless in writing
and accompanied by a copy of an indictment found or by an
information supported by affidavit in the state having jurisdiction of
the crime, or by a copy of an affidavit made before a magistrate
there, together with a copy of any warrant which was issued thereon.
The indictment, information, or affidavit made before the magistrate
must substantially charge the person demanded with having
committed a crime under the law of that state; and the copy must be
authenticated by the executive authority making the demand, which
shall be prima facie evidence of its truth.
(4) When a demand shall be made upon the governor of this state
by the executive authority of another state for the surrender of a
person so charged with crime, the governor may call upon the
attorney general or any prosecuting officer in this state to investigate
or assist in investigating the demand, and to report to him the
situation and circumstances of the person so demanded, and whether
he ought to be surrendered.
(5) A warrant of extradition shall not be issued unless the
documents presented by the executive authority making the demand
show that:
(a) except in cases arising under subsection 7 of this section, the
accused was present in the demanding state at the time of the
commission of the alleged crime, and thereafter fled from the
state;
(b) the accused is now in this state; and
(c) he is lawfully charged by indictment found or by
information filed by a prosecuting officer and supported by
affidavit to the facts, or by affidavit made before a magistrate
in that state, with having committed a crime under the laws of
that state, or that he has been convicted of a crime in that state
and has escaped from confinement or has broken the terms of
his bail, probation, or parole, or that the sentence or some
portion of it otherwise remains unexecuted and that the person
claimed has not been discharged or otherwise released from the
sentence.
(6) When it is desired to have returned to this state a person
charged in this state with a crime, and such person is imprisoned or
is held under criminal proceedings then pending against him in
another state, the governor of this state may agree with the executive
authority of such other state for the extradition of such person before
the conclusion of such proceedings or his term of sentence in such
other state, upon condition that such person be returned to such other
state at the expense of this state as soon as the prosecution in this
state is terminated. The governor of this state may also surrender on
demand of the executive authority of any other state any person in
this state who is charged in the manner provided in subsection 24 of
this section with having violated the laws of the state whose
executive authority is making the demand, even though such person
left the demanding state involuntarily.
(7) The governor of this state may also surrender, on demand of
the executive authority of any other state, any person in this state
charged in such other state in the manner provided in subsection 5 of
this section with committing an act in this state, or in a third state,
intentionally resulting in a crime in the state whose executive
authority is making the demand; and the provisions of this section
not otherwise inconsistent shall apply to such cases, notwithstanding
that the accused was not in that state at the time of the commission
of the crime and has not fled therefrom.
(8) If the governor shall decide that the demand should be
complied with, he shall sign a warrant of arrest, which shall be sealed
with the state seal, and be directed to a sheriff, marshal, coroner, or
other person whom he may think fit to entrust with the execution
thereof; and the warrant must substantially recite the facts necessary
to the validity of its issue.
(9) Such warrant shall authorize the officer or other person to
whom directed to arrest the accused at any place where he may be
found within the state, to command the aid of all sheriffs and law
enforcement officers in the execution of the warrant, and to deliver
the accused subject to the provision of this section, to the duly
authorized agent of the demanding state.
(10) Every such officer or other person empowered to make the
arrest shall have the same authority in arresting the accused to
command assistance therein, as sheriffs and other officers have by
law in the execution of any criminal process directed to them, with
the like penalties against those who refuse their assistance.
(11) 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 has been informed of the demand
made for his surrender, of the crime with which he is charged and
that he has the right to demand legal counsel; and if the prisoner, his
friends, or counsel shall state that he or they desire to test the legality
of the arrest, the prisoner shall be taken forthwith before a judge of
a court of record in this state who shall fix a reasonable time to be
allowed him within which to apply for a writ of habeas corpus. And
when such writ is applied for, notice thereof, and of the time and
place of hearing thereon, shall be given to the public 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.
(12) An officer who recklessly delivers to the agent for extradition
of the demanding state a person in his custody under the governor's
warrant in disobedience to subsection 11 of this section commits a
Class B misdemeanor.
(13) The officer or person executing the governor's warrant of
arrest, or the agent of the demanding state to whom the prisoner may
have been delivered, may, when necessary, confine the prisoner in
the jail of any county or city through which he may pass; and the
keeper of such jail must receive and safely keep the prisoner until the
person having charge of him is ready to proceed on his route, such
person being chargeable with the expense of keeping.
(14) Whenever any person within this state shall be charged on
the oath of any credible person before any judge of this state with the
commission of a crime in any other state, and, except in cases arising
under subsection 7 of this section, with having fled from justice, or
whenever complaint shall have been made before any judge in this
state setting forth on the affidavit of any credible person in another
state that a treason or felony has been committed in such other state
and that the accused has been charged in such state with the
commission of the treason or felony, and, except in cases arising
under subsection 7 of this section, has fled therefrom and is believed
to have been found in this state, the judge shall issue a warrant
directed to the sheriff of the county in which the oath or complaint
is filed directing him to apprehend the person charged, wherever he
may be found in this state, and bring him before the same or any
other judge, who may be convenient of access to the place where the
arrest may be made, to answer the charge or complaint and affidavit.
A certified copy of the sworn charge or complaint and affidavit upon
which the warrant is issued shall be attached to the warrant.
(15) The arrest of a person may be lawfully made also by an
officer or a private citizen without a warrant upon reasonable
information that the accused stands charged in the courts of another
state with a crime punishable by death or imprisonment for a term
exceeding one (1) year; but when so arrested the accused must be
taken before a judge with all practicable speed, and complaint must
be made against him under oath setting forth the ground for the arrest
as in the last preceding subsection; and thereafter his answer shall be
heard as if he has been arrested on warrant.
(16) If from the examination before the judge, it appears that the
person held is the person charged with having committed the crime
alleged and that he probably committed the crime, and, except in
cases arising under subsection 7 of this section, that he has fled from
justice, the judge shall commit him to jail by a warrant reciting the
accusation for such time specified in the warrant as will enable the
arrest of the accused to be made under a warrant of the governor on
a requisition of the executive authority of the state having
jurisdiction of the offense, unless the accused gives bail as provided
in subsection 17 of this section, or until he shall be legally
discharged.
(17) Unless the offense with which the prisoner is charged is
shown to be an offense punishable by death or life imprisonment
under the laws of the state in which it was committed, the judge must
admit the person arrested to bail by bond or undertaking, with
sufficient sureties, and in such sum as he deems proper, for his
appearance before him at a time specified in such bond or
undertaking, and for his surrender, to be arrested upon the warrant of
the governor of this state. The prisoner shall not be admitted to bail
after issuance of a warrant by the governor of this state.
(18) If the accused is not yet arrested under warrant of the
governor by the expiration of the time specified in the warrant, bond,
or undertaking, the judge may discharge him or may recommit him
to a further day, or may again take bail for his appearance and
surrender, as provided in subsection 17 of this section; and at the
expiration of the second period of commitment, or if he has been
bailed and appeared according to the terms of his bond or
undertaking, the judge may either discharge him, or may require him
to enter into a new bond or undertaking, to appear and surrender
himself at another day.
(19) If the prisoner is admitted to bail and fails to appear and
surrender himself according to the conditions of his bond, the court,
by proper order, shall declare the bond forfeited; and recovery may
be had thereon in the name of the state as in the case of other bonds
or undertakings given by the accused in criminal proceedings within
this state.
(20) If a criminal prosecution has been instituted against such
person under the laws of this state and is still pending, the governor
at his discretion either may surrender him on the demand of the
executive authority of another state or may hold him until he has
been tried and discharged, or convicted and punished in this state.
(21) The guilt or innocence of the accused as to the crime of
which he is charged may not be inquired into by the governor or in
any proceedings after the demand for extradition accompanied by a
charge of crime in legal form as above provided shall have been
presented to the governor, except as it may be involved in identifying
the person held as the person charged with the crime.
(22) The governor may recall his warrant of arrest or may issue
another warrant whenever he deems proper.
(23) Whenever the governor of this state shall demand a person
charged with a crime in this state from the chief executive of any
other state or from the chief justice or an associate justice of the
Supreme Court of the District of Columbia authorized to receive
such demand under the laws of the United States, he shall issue a
warrant under the seal of this state to some agent commanding him
to receive the person so charged if delivered to him and convey him
to the proper officer of the county in this state in which the offense
was committed.
(24) When the return to this state of a person charged with a crime
in this state is required, the prosecuting attorney of the county in
which the offense is committed shall present to the governor his
written application for a requisition for the return of the person
charged, in which application shall be stated the name of the person
so charged, the crime charged against him, the approximate time,
place, and circumstances of its committal, the state in which he is
believed to be, including the location of the accused therein at the
time the application is made, and certifying that in the opinion of the
said prosecuting attorney the ends of justice require the arrest and
return of the accused to this state for trial, and that the proceeding is
not instituted to enforce a private claim. The application shall be
verified by affidavit, shall be executed in triplicate, and shall be
accompanied by three (3) certified copies of the indictment returned,
or information and affidavit filed, or of the complaint made to the
magistrate, stating the offense with which the accused is charged.
The prosecuting attorney may also attach such further affidavits and
other documents in triplicate as he shall deem proper to be submitted
with such application. One (1) copy of the application with the action
of the governor indicated by the endorsement thereon and one (1) of
the certified copies of the indictment or complaint or information and
affidavit shall be filed in the office of the secretary of state to remain
of record in that office. The other copies of all papers shall be
forwarded with the governor's requisition.
(25) The expenses shall be paid out of the general fund of the
county treasury of the county wherein the crime is alleged to have
been committed. The expenses shall be the fees paid to the officers
of the state on whose governor the requisition is made, as now
provided by law, for all necessary travel in returning such prisoner.
(26) A person brought into this state on extradition based on a
criminal charge shall not be subject to service of personal process in
civil actions arising out of the same facts as the criminal proceeding
to answer for which he is returned until he has been convicted in the
criminal proceeding, or if acquitted, until he has had ample
opportunity to return to the state from which he was extradited.
(27) After a person has been brought back to this state upon
extradition proceedings, he may be tried in this state for other crimes
which he may be charged with having committed here, as well as that
specified in the requisition for his extradition.
(28) This section shall be so interpreted and construed as to
effectuate its general purpose to make uniform the law of those states
which enact it.
(29) Nothing in this section contained shall be deemed to
constitute a waiver by the state of its right, power, or privilege to
regain custody of such person by extradition proceedings or
otherwise for the purpose of trial, sentence, or punishment for any
crime committed within this state, nor shall any proceedings had
under this section which result in, or fail to result in, extradition be
deemed a waiver by this state of any of its rights, privileges, or
jurisdiction in any way whatsoever.
(30) This section may be cited as the Uniform Criminal
Extradition Act. As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.178-1984,
SEC.1.
IC 35-33-10-4 Agreement on detainers; defendants confined in other jurisdiction
of United States
Sec. 4. 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.
IC 35-33-10-5 Defendants confined in federal institutions
Sec. 5. Securing Attendance of Defendant Confined in Federal
Institutions. (1) A defendant against whom a criminal action is
pending in a court of record of this state, and who is confined in a
federal prison or other institution either within or outside this state,
may, with the consent of the attorney general of the United States, be
produced in such court for the purpose of criminal prosecution,
pursuant to the provisions of:
(a) Section four thousand eighty-five of title eighteen of the
United States Code as in effect on July 26, 1973; or
(b) subsection 2 of this section.
(2) When such a defendant is in federal custody as specified in
subsection 1, a court in which the criminal action against such
defendant is pending, may, upon application of the prosecuting
attorney of such county, issue a certificate, known as a writ of habeas
corpus ad prosequendum, addressed to the attorney general of the
United States, certifying that such defendant has been charged by
indictment or information filed against him in the specified court
with the offense or offenses alleged therein, and that attendance of
the defendant in such court for the purpose of criminal prosecution
thereon is necessary in the interest of justice and requesting the
attorney general of the United States to cause such defendant to be
produced in such court, under custody of a federal public servant,
upon a designated date and for a period of time necessary to
complete the prosecution. Upon issuing such a certificate, the court
may deliver it, or cause or authorize it to be delivered, together with
a certified copy of the indictment or information upon which it is
based, to the attorney general of the United States or to his
representative authorized to entertain the request. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-6 Defendants outside United States
Sec. 6. Securing Attendance of Defendants Who Are Outside The
United States. (1) When a criminal action for a crime committed in
this state is pending in a court of this state with jurisdiction over the
crime against a defendant who is in a foreign country with which the
United States has an extradition treaty, and when the indictment or
information charges a crime which is specified in such treaty as an
extraditable one, the prosecuting attorney of the county in which
such crime was allegedly committed may make an application to the
governor, requesting him to make an application to the president of
the United States to institute extradition proceedings for the return
of the defendant to this country and state for the purpose of
prosecution of such action. The prosecuting attorney's application
must comply with any rules, regulations and guidelines established
by the governor for such applications and must be accompanied by
all the documents required by such rules, regulations and guidelines.
(2) Upon receipt of the prosecuting attorney's application, the
governor if satisfied that the defendant is in the foreign country in
question, that the crime charged is an extraditable one pursuant to the
treaty in question, and that there are no factors or impediments which
in law preclude such an extradition, may in his discretion make an
application, addressed to the secretary of state of the United States,
requesting that the president of the United States institute extradition
proceedings for the return of the defendant from such foreign
country. The governor's application must comply with any rules,
regulations and guidelines established by the secretary of state for
such applications and must be accompanied by all the documents
required by such rules, regulations and guidelines.
(3) If the governor's application is granted and the extradition is
achieved or attempted, all expenses incurred therein must be borne
by the county from which the application emanated.
(4) The provisions of this section apply equally to extradition or
attempted extradition of a person who is a fugitive following the
entry of a judgment of conviction against him in a criminal court of
this state. As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-10-7 Corporate defendants
Sec. 7. Securing Attendance of Corporate Defendants. (1) The
court attendance of a corporation for purposes of commencing or
prosecuting a criminal action against it may be accomplished by the
issuance and service of a summons.
(a) A corporation shall be deemed in attendance for purposes of
commencing or prosecuting a criminal action against it whenever an
officer, director or counsel for such corporation is present. If such
officer, director or counsel fails or refuses to appear, the court shall
proceed with trial and judgment. As added by Acts 1981, P.L.298, SEC.2.
