COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Hodges 

Argued at Richmond, Virginia 

MARK PHILLIP ECKARD 

v. Record No. 1694-94-2 OPINION BY 

 CHIEF JUDGE NORMAN K. MOON 

COMMONWEALTH OF VIRGINIA AUGUST 15, 1995 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Lee A. Harris, Jr., Judge 

 Craig S. Cooley for appellant. 

 Eugene Murphy, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, 

 on brief), for appellee. 

 Mark Phillip Eckard was convicted on his conditional plea of 

guilty of conspiracy to distribute more than five pounds of 

marijuana and possession of more than five pounds of marijuana 

with the intent to distribute. On appeal, Eckard contends that 

his motion to dismiss the indictments on those crimes should have 

been granted because of the Commonwealth's failure to prosecute 

him within the time limits mandated by the Interstate Agreement 

on Detainers (IAD). Code § 53.1-210, et seq. We hold that 

because Eckard failed to conform to required procedures under 

Article III of the IAD, he did not trigger the prescribed time 

period in which the Commonwealth had to prosecute him, and, 

therefore, the trial court properly denied his motion. 

Accordingly, we affirm his convictions. 

 In March 1991, Eckard was arrested while in possession of 

thirty pounds of marijuana. Eckard was indicted for possession 
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of and intent to distribute more than five pounds of marijuana 

and for conspiracy to distribute more than five pounds of 

marijuana. On December 4, 1991, Eckard, who was free on bond, 

failed to appear in court to answer the charges alleged in the 

indictments. A capias was issued for Eckard's arrest. 

 Eckard was arrested on unrelated charges in Tennessee on 

November 22, 1992. On December 1, 1992, Henrico County 

authorities requested that a detainer be placed against Eckard in 

Tennessee and that Tennessee authorities notify them as soon as 

their jurisdiction had disposed of its local charges against 

Eckard so that extradition procedures could begin. On September 

6, 1993, while in the Shelby County Jail in Tennessee waiting 

transfer to the Tennessee Department of Corrections, Eckard sent 

a communication purporting to be under the IAD requesting that 

the detainer against him be disposed of within 180 days. The 

communication was not accompanied by a certificate of Eckard's 

prison status by the appropriate prison official, and it is 

disputed whether Eckard contacted Tennessee authorities to send 

that certificate. That the Tennessee authorities never sent a 

certification of Eckard's prison status to Virginia as required 

by the IAD is not disputed. 

 On September 17, 1993, the Shelby County Sheriff's 

Department informed Henrico County authorities that Eckard was 

being transferred to the Tennessee Department of Corrections and 

that Virginia would have to lodge its detainer directly with the 

Department of Corrections in Tennessee. The lodging of the 
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Virginia detainer by Henrico County authorities with the 

Department of Corrections became effective October 13, 1993. 

Eckard received formal notice of the lodging of the detainer with 

Tennessee on October 20, 1993, via a standard form which Eckard 

declined to sign. Eckard also refused to sign two other forms, 

one a waiver of extradition, the other a consent to temporary 

transfer of custody, thereby preventing Henrico County 

authorities from transferring him to Virginia for trial. 

 On January 19, 1994, Eckard waived extradition and the 

Commonwealth's IAD Article IV request for temporary custody of 

Eckard to be tried in Virginia was formally acknowledged. Eckard 

was transferred to Henrico County on or about February 20, 1994, 

and tried on June 23, 1994. 

 The IAD is codified in Code §§ 53.1-210 through 53.1-215. 

It provides a method of transferring a prisoner from one 

jurisdiction to another for disposition of pending charges. 

Under the IAD, once a state has lodged a detainer based on an 

untried indictment, information, or complaint against a prisoner 

in another jurisdiction, the authorities must notify the prisoner 

of the detainer and give the prisoner an opportunity to request 

final disposition of the pending charges. Code § 53.1-210, 

Article III (c). 

 Article III (a) of the IAD requires that when a receiving 

state (Virginia) lodges a detainer in the sending state 

(Tennessee), the prisoner must be tried within 180 days after the 

prisoner "has caused to be delivered to the prosecuting officer 
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and the appropriate court of the receiving state, written notice 

of the place of the prisoner's imprisonment and the prisoner's 

request for final disposition of the indictment, information or 

complaint." Delgado v. Commonwealth, 16 Va. App. 50, 54, 428 

S.E.2d 27, 29 (1993). 

 "Specifically, Art. III requires the warden to inform 

the prisoner that a detainer has been lodged against 

him and that he may request final disposition of the 

indictment, information, or complaint upon which the 

detainer is based. If the prisoner makes such a 

request, the warden must forward it, together with a 

certificate providing certain information about the 

prisoner's terms of confinement, to the appropriate 

prosecuting official and court of the receiving State. 

The authorities in the receiving State then must bring 

the prisoner to trial within 180 days, absent good 

cause shown, or the court must dismiss the indictment, 

information, or complaint with prejudice, and the 

detainer will cease to be of any force or effect." 

Id. at 56, 428 S.E.2d at 30 (quoting Carchman v. Nash, 473 U.S. 

716, 721 (1985)) (emphasis added, in part). 

 Article V (c) of the IAD provides the statutory remedy in 

the event that Article III (a) is violated: 

 [i]n 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 III or Article IV 

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. 

 In Delgado, we held that the 180-day limitation begins to 

run only upon receipt by the receiving state of the Article III 

request documents "accompanied by a certificate of the 

appropriate official having custody," together with the 
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information required by Code § 53.1-210, Article III (a). 16 Va. 

App. at 58, 428 S.E.2d at 32. Without proof that those documents 

were received from the warden along with the warden's 

certification of the information required by Article III (a), a 

prisoner is not entitled to a dismissal with prejudice of an 

indictment pending in the receiving state. Id.

 In this case, Eckard's communication of his request for 

final disposition of the pending charges was not accompanied by 

the appropriate certificate from the Tennessee authorities. The 

record also indicates that Eckard's request to Virginia came 

directly from Eckard by certified mail, rather than from the 

Tennessee authorities, and does not show that he contacted the 

Tennessee authorities to send the certificate. 

 Despite our holding in Delgado, Eckard urges us to now adopt 

another position. Eckard argues that a request under Article III 

is not invalid merely because the warden/jailer fails to 

prepare/attach and forward the certificate of the prisoner's 

status. Eckard contends, therefore, that he triggered the 180-

day period on or about September 17, 1993 when he gave notice by 

certified mail to the Clerk of the Henrico Circuit Court and a 

representative of the Henrico Commonwealth's Attorney's Office. 

Eckard maintains this position despite the absence of the 

certification required by Article III (a). In support of his 

argument, Eckard cites Fex v. Michigan, 113 S. Ct. 1085, 1091 

(1993), which held that the 180-day time period of the IAD does 

not commence "until the prisoner's request for final disposition 
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of the charges against him has actually been delivered to the 

court and prosecuting officer of the jurisdiction that lodged the 

detainer against him." 

 Assuming but not deciding that Eckard contacted the 

Tennessee prison authorities to send the certificate, we reaffirm 

our holding in Delgado that without the warden's certificate, the 

180-day period under Article III (a) does not commence.1 In 

doing so, we hold further that the prisoner's request must be 

sent to the receiving state's authorities by the warden, or other 

appropriate prison officials, in the sending state to whom the 

prisoner has first communicated his request. Thus, because 

Eckard's request was both unaccompanied by the warden's 

certificate and was sent to the Henrico Circuit Court Clerk and 

Commonwealth's Attorney directly from Eckard instead of the 

warden, Eckard's motion to dismiss the indictments against him 

with prejudice was properly denied. 

 The language of Article III (b) expressly states that the 

prisoner's request "shall be given or sent by the prisoner to the 

warden." In Delgado, we explained the importance of the 

requirement that a prisoner's request must be first given to the 

warden when we said that the General Assembly did not intend that 

"notice, standing alone, to the sending state's warden of a 

prisoner's request" would start the 180-day period. 16 Va. App 

 

 1

 Because we reaffirm our holding in Delgado, reference should 

be made to that case in which we cited extensive case law in 

support of our holding. 
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at 58, 428 S.E.2d at 32. We also note that Fex bolsters our 

holding in Delgado and is of no support in Eckard's case because 

it dealt with a prisoner who gave his Article III request to the 

warden who in turn forwarded the request to the officials in the 

jurisdiction from which the detainers were lodged. 113 S. Ct. at 

1088. 

 The language in Fex intimates an understanding by the 

Supreme Court that a prisoner's Article III request must come 

through the prison authorities in the sending state and must be 

accompanied by the warden's certificate. In discussing its 

holding that the 180-day period commences on the date the Article 

III request is delivered to the court and prosecuting officer in 

the receiving state, the court noted the insignificance of the 

date upon which notice is given to the warden and by inference, 

therefore, confirmed the requirement that the delivery be made 

through the warden with the warden's certification or the 

required information concerning the prisoner's status. 

 Indications in the text of Article III confirm, in our 

view, that the receiving State's receipt of the request 

starts the clock. The most significant is the 

provision of Article III (b) requiring the warden to 

forward the prisoner's request and accompanying 

documents "by registered or certified mail, return 

receipt requested." The IAD thus provides for 

documentary evidence of the date on which the request 

is delivered to the officials of the receiving state, 

but requires no record of the date on which it is 

transmitted to the warden. 

Id. at 1090 (emphasis added). 

 "`[C]ourt's have generally required that prisoners must 

strictly comply with IAD procedures before they will dismiss 
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charges on the basis of a violation of [the 180-day provision of] 

Article III.'" Casper v. Ryan, 822 F.2d 1283, 1292 (3d Cir. 

1987), cert. denied, 484 U.S. 1012 (1988) (quoting Nash v. 

Jeffes, 739 F.2d 878, 884 (3d Cir. 1984)); see also Johnson v. 

Stagner, 781 F.2d 758, 761 (9th Cir. 1986) ("`formal requirements 

must be met before the timely trial provisions of IAD come into 

play'") (quoting Tinghitella v. California, 718 F.2d 308, 312 

(9th Cir. 1983)). In People v. Merryfield, 83 Ill. App. 3d 1017, 

1021, 404 N.E.2d 907, 910 (1980), the Court held that a prisoner 

failed to comply with the statutory provisions of the IAD because 

he filed his request directly with the trial court and 

prosecuting attorney rather than the warden having custody of 

him. 

 By not sending a written notice and request for final 

disposition to his warden, the defendant failed to 

initiate the procedure under Article III (b) which 

would have caused the certificate, as well as the 

notice and request for final disposition, to be mailed 

by the warden to the State's Attorney and the court. 

Id.

 Similarly, in Ellis v. Commonwealth, 828 S.W.2d 360 (Ky. 

1992), the Court rejected a claim under the IAD because the 

defendant chose to communicate directly with the receiving state 

rather than sending his request to officials in the sending 

state. 828 S.W.2d at 361; also see People v. Garner, 224 Cal. 

App. 3d 1363, 274 Cal. Rptr. 298 (1990) (defendant's speedy trial 

claim rejected when defendant failed under the IAD to present his 

request for disposition of detainers to the warden, and request 
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lacked warden's stamp and was not contained in defendant's 

central prison file in sending state). 

 Requiring prisoners to strictly comply with the 

provisions of the IAD produces substantial benefits. 

First, if a prisoner uses standard IAD form 2, and 

includes the certificate required by Article III (a), 

then the prosecuting authority will be notified that 

the IAD has been invoked and will be better able to 

avoid this severe sanction of dismissal mandated by 

Article V (c). Second, because prosecutors are not 

currently compelled to sort through every prisoner's 

correspondence and pleadings to find IAD references, 

the IAD remains an effective system to rapidly 

adjudicate the claims of prisoners challenging 

extradition. Third, requiring strict compliance with 

the IAD provides the prosecutor with information and 

the ability to decide whether or not to prosecute in 

the [receiving] state. If the prisoner is currently 

serving a lengthy sentence on a serious charge, then 

the [receiving] state might opt not to spend limited 

resources on a second trial unlikely to produce 

additional benefits. 

Norton v. Parke, 892 F.2d 476, 480-81 (6th Cir. 1989), cert.

denied, 494 U.S. 1060 (1990) (citations omitted). 

 We find the rationale of Norton and the other cases cited 

above compelling. The Henrico Commonwealth's Attorney was under 

no duty to act upon Eckard's letter of request for disposition of 

the detainers without receipt of Eckard's notice and request from 

the Tennessee prison authorities accompanied by their 

certification of the required information in Article III (a). 

Compliance with the procedural requirements is the only way the 

Commonwealth can be placed on notice that they must bring the 

prisoner to trial within 180 days. As in other jurisdictions, we 

are aware that Article IX states that the IAD "shall be liberally 

construed so as to effectuate its purposes." However, allowing 
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substantial circumvention of IAD procedures does not serve the 

IAD's purposes, which we view as "the orderly and expeditious 

disposition of charges pending in foreign jurisdictions and the 

establishment of cooperative procedures to facilitate such 

disposition." See Garner, 224 Cal. App. 3d at 1370, 274 Cal. 

Rptr. at 302 (citation omitted).2 

 Accordingly, we affirm Eckard's convictions.3

 Affirmed.

 

 2 While Eckard maintains that he should not be punished for 

the prison official's dereliction of duty, nothing in the record 

supports his contention that he sent his notice of request for 

final disposition to the prison official. Without evidence that 

he did so, we cannot presume that Eckard did in fact request the 

certificate from the warden. "When alleging a violation of the 

IAD, the prisoner bears the burden of establishing its required 

notice was given." United State v. Espinoza, 866 F.2d 1067, 1070 

(9th Cir. 1988) 

 3 The Commonwealth also argues that Eckard's convictions 

should be affirmed because the IAD is not applicable to detainees 

held in local jails and because Eckard refused to waive 

extradition when the Commonwealth took steps under Article IV to 

return Eckard to Virginia to face prosecution. We note that 

Eckard's failure to waive extradition demonstrates the 

disingenuous nature of his appeal. However, we need not address 

either of these issues because of Eckard's failure to follow the 

procedure prescribed by the IAD.