No. 88-89 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-VSTIMOTHY JOHN CAMPBELL, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barb Claassen, Asst. Atty. General, Helena 

A. Michael Salvagni, County Attorney, Bozeman, Montana 

Marty Lambert, Deputy County Atty., Bozeman 

For Respondent : 

Larry Jent, Rozeman, Montana 

Submitted on Briefs: June 22, 1988 

Decided,: September 12, 1988 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The State of Montana (State), appeals an order of the 

Eighteenth Judicial District Court, Gallatin County, 

dismissing a fugitive warrant issued on Timothy Campbell 

(Campbell), defendant/respondent, and the court's quashing of 

a writ of extradition. We reverse. 

The issue presented by the State is whether the 

District Court improperly dismissed the extradition 

proceedings? 

A stipulation of facts is attached to the State's 

brief. According to this stipulation, Campbell was charged 

in the Eighteenth Judicial District Court on a "Complaint for 

Fugitive Warrant" on September 11, 1987. The complaint 

stated Campbell was charged in the state of Wisconsin with 

feloniously and intentionally failing to return rented 

personal property. Campbell made an initial appearance on 

September 14, 1987, posted bail and was released. Campbell 

was advised of his rights to petition the court for a writ of 

habeas corpus and to refuse to waive extradition to 

Wisconsin. Campbell refused to waive extradition at that 

time . 

On October 16, 1987, a 30-day extension was granted by 

the District Court because the necessary extradition papers 

had not yet been processed. The Governor of the State of 

Montana signed a Governor's Warrant for extradition on 

October 30, 1987, commanding that Campbell be apprehended on 

the original theft charges and additional charges of carrying 

a concealed weapon, reckless use of a weapon, and possession 

of tetrahydrocannabinol. 

On November 16, 1987, Campbell and his attorney 

appeared at the hearing held pursuant to the 30-day extension 

granted October 16, 1987. The District Judge directed that 
the Governor's Warrant be served on the defendant and that 

the State of Wisconsin pick him up no later than one week 

from that date. The record reflects the following: that the 

Governor's Warrant was served upon the defendant at the 

November 16 hearing in compliance with the court's order; 

that Campbell was allowed to remain free on bail; and, the 

sheriff's return of service of the warrant was filed with the 

clerk. 

Paragraph seven of the stipulation of facts states: 

Defense counsel . . . was out of town 

during the week of November 22 through 

29, 1987. Because the defendant was 

released on bail, the Gallatin County 

Sheriff 's office did not know the 

whereabouts of the defendant. [Defense 

counsel's] secretary would not divulge 

the defendant's address to the sheriff's 

office. 

Upon being --- told that the defendant was 

-- not in custody, --- and that the Gallatin 

Count~ Sheriff could - not suarantee that 

- the defendant would a~~ea; A. on November 

--- 23, 1987, the Wisconsin authoFities sent 

--- no one to Montana to pick 9 the 

defendant . . . (~mwhazs added. ) - 

The above time sequence is important because on November 16, 

1987, the District Court stated Campbell had to be extradited 

by the Wisconsin authorities within a week. 

At a November 23, 1987 meeting in the District Court 

chambers, acting defense counsel, since regular counsel was 

unavailable, made a motion to dismiss the proceedings. The 

court denied the motion. Nonetheless, the District Court 

informed the parties that the states of Montana and Wisconsin 

would have one more opportunity to extradite Campbell and 

that it would dismiss the extradition proceedings and 

Campbell would be released if extradition was not completed. 

The District Court did not state a specific time limit. On 
December 14, 1987, the County Attorney sent a letter to 

defense counsel which stated: 

The Sheriff has made arrangements with 

agents from the State of Wisconsin 

concerning Campbell. The Wisconsin 

authorities will be here on Wednesday, 

December 30, 1987, at 10:OO a.m., to take 

Campbell into custody. 

If you are still in contact with 

Campbell, please advise him concerning 

this date. If you are not in contact 

with Campbell, please advise the court so 

that other arrangements can be made. 

I trust that no further arrangements 

concerning this extradition will be 

necessary. 

On December 29, 1987, Campbell formally moved the court 

for an order dismissing the fugitive warrant on grounds that 

the statutory time limit had expired pursuant to § 46-30-304, 

MCA. On December 30, 1987, Campbell again appeared before 

the court. On this date a police officer from Wisconsin was 

present in the courtroom for the purpose of returning 

Campbell to Wisconsin. However, rather than releasing 

Campbell to the Wisconsin authorities, the court made the 

following statement: 

THE COURT: Well, I don't know if I've 

got the authority to do it, but I'm going 

to dismiss the matter and discharge the 

Defendant and quash the writ of 

extradition on the basis that the State 

of Montana and the State of Wisconsin 

have consistently failed to comply with 

Court orders about getting this Defendant 

out of here. 

For example, on September 14, 1987, I 

gave the State 30 days within which to 

extradite the Defendant. They came 

before me on October 16 and had not 

extradited him. I gave them another 30 

days. On November 16 they came before me 

and still had not extradited him. I gave 
them 7 days to get him out of here, and 

it's December 30 now. They still haven't 

extradited him. 

You can take this matter up to the 

Supreme Court and get a writ of 

supervisory control or whatever you think 

empowers the States of Montana and 

Wisconsin to jack a defendant around like 

this. 

Let him go. 

The District Court also ordered exoneration of Campbell's 

bail. 

The District Court made no findings of fact or 

conclusions of law and from the bench dismissed the matter, 

discharged the defendant, and quashed the writ of 

extradition. It is from this ruling that the State appeals. 

The State timely filed a notice of appeal on January 13, 

1988. The State requests this Court reverse the District 

Court and declare the Governor's Warrant effective. 

The State contends the District Court was required to 

honor the Governor's Warrant once it was issued under the 

Uniform Criminal Extradition Act. Section 46-30-101, et 

seq., MCA. The State claims Campbell was not arrested on the 

Governor's Warrant and therefore no time limitation ever 

began to run. Campbell's claim is that he was not extradited 

within the time period prescribed in § 46-30-304, MCA. This 

section, read along with S 46-30-302, MCA, allows a 90-day 

time period that a party may be held in custody or on bond 

prior to discharge and a release from bail. 

This 90-day limit was addressed by this Court in 

Petition of Blackburn (Mont. 1985), 701 P.2d 715, 42 St.Rep. 

525. In Blackburn, petitioner argued that Part 3 of Chapter 

30, Title 46, MCA, imposed time limits on the issuance of the 

Governor's Warrant. We held "the time limits in section 

46-30-302 and -304 refer only to the length of detention 
permitted before an accused person must be released from 

custody in the asylum state" and that " [tlhese sections do 

not require dismissal of extradition proceedings for any 

supposed time limits on issuance of the Governor's Warrant." 

Blackburn, 701 P.2d at 719. 

Campbell claims he was arrested on the Governor's 

Warrant on November 16, 1987, when he was served with the 

document at the hearing. Campbell therefore argues that the 

issue before this Court should be whether the District Court 

could release Campbell because the state of Wisconsin failed 

to physically transport him back to Wisconsin. Campbell 

claims Article IV, Section 2 of the United States 

Constitution controls in this instance. Campbell is correct 

that this section is applicable as it states: 

A person charged in any State with 

Treason, Felony, or other Crime, who 

shall flee from Justice, and be found in 

another State, shall on demand of the 

executive Authority of the State from 

which he fled, be delivered up to be 

removed to the State having Jurisdiction 

of the Crime. 

U.S.Const. art. IV, § 2. 

Campbell argues he should have been released because 

the Wisconsin authorities did not pick him up within 30 days 

after the Governor's Warrant was served upon him and he 

became "arrested." He claims the controlling federal law 

under 18 U.S.C. cS. 3182 mandates that "[ilf no such agent 

appears within thirty days from the time of the arrest, the 

prisoner may be discharged." (Emphasis added.) Therefore, 

Campbell claims, the District Court had the jurisdiction and 

authority to dismiss this case. We disagree. The court 

could discharge Campbell, if he was detained, or release him 

from bail in this instance, but the 30-day provision does not 

allow dismissal of the proceedings nor does it grant the 

court the ability to quash a writ of extradition. 
Campbell recognizes that the authority is split as to 

whether the 30-day provision of 18 U.S.C. 5 3182 is mandatory 

or provisional. See generally, Long v. Cauthron (Ark.App. 

1987), 731 S.W.2d 792; State v. Paskowski (Tenn.Cr.App. 

1983), 647 S.W.2d 238; People v. Superior Court (Lopez) (Cal. 

1982), 182 Cal.Rptr. 132 (cases holding the 30-day limit in 

18 U.S.C. 5 3182 is discretionary and not a mandatory "may 

discharge" on the court), and contra, Hill v. Roberts (1978), 

359 So.2d 911 (case holding word "may" in provision of 18 

U.S.C. 5 3182 is mandatory, although the 30-day period is 

tolled for any delay attributable to fugitive). 

In this instance, Campbell claims none of the delay is 

attributable to him. We note, nonetheless, that Campbell 

could not be located on November 23, 1987 and it was because 

of this inability that the Gallatin County Sheriff informed 

the Wisconsin authorities not to come to Montana. To some 

extent, this delay can therefore be attributed to Campbell. 

A district courts' power of inquiry with regard to 

extradition proceedings is limited. The court can determine 

whether the documents are in order on their face; whether the 

petitioner was charged with a crime in the demanding state; 

whether petitioner is the person named in the extradition 

request; and whether petitioner is a fugitive. Blackburn, 

701 P.2d at 717. 

Here, the District Court summarily dismissed the 

extradition proceedings. The case of Carter v. Coleman 

(Fla.App. 1984), 443 So.2d 491, is instructive in this 

instance. The Carter court stated: 

[Dlismissal of the entire proceeding [is] 

improper since the authority to honor or 

reject an extradition demand lies solely 

with the Governor . . . (Citations 

omitted. ) 
[Wle construe the language in the trial 

court's order to mean that the trial 

court . . . intended only to dismiss its 

own court proceedings and to discharge 

the fugitive warrant and bail bond which 

it had issued therein. Such a discharge 

from bond or custody does not mean 

dismissal of all extradition proceedings. 

Thus, appellant's rearrest on a valid 

Governor's warrant issued after such 

discharge is not barred. (Citation 

omitted. ) 

Carter, 443 So.2d at 492-493. 

The Governor's Warrant was legally effective on 

December 30, 1987, even though the 30-day limit had expired. 

Our holding today is in accord with numerous states 

which have held that the time period involved in extradition 

proceedings is not mandatory but discretionary. Long, supra; 

Paskowski, supra; People v. Superior Court (Lopez), supra. 

In Stynchcombe v. Whitley (Ga. 1978), 242 S.E.2d 720, 

721-722, the purpose behind the extradition statutes is 

stated in a situation similar to what we are faced with in 

this case. In Stynchcombe, 242 S.E.2d at 721, the court 

citing People ex rel. Gummow v. Larson (Ill. 1966), 220 

N.E.2d 165, stated: 

"The purpose of these sections of the 

extradition law is to prevent 

unreasonably lengthy periods of 

confinement of fugitives pending 

consummation of extradition proceedings 

by the demanding state (citations). . . " 

The court further stated in Stynchcombe, 242 S.E.2d at 722, 

citing In re Colasanti (N.J. 1969), 249 A.2d 1: 

"The sections only limit the time during 

which one arrested as a fugitive may be 

kept in jail (or on bail in lieu thereof) 

pending the completion of extradition 

proceedings and the issuance of the 

governor's arrest warrant." 
Our extradition statutes have the purpose of allowing 

the accused to be held in jail, or on bail as in this case, 

after the initial charge while awaiting the Governor's 

Warrant. Additionally, the time limitations stated in the 

statutes suggest that the fugitive not be detained for an 

undue or unreasonable length of time. Accord, Rreckenridge 

v. Hindman (Kan.App. 1984), 691 P.2d 405; Application of 

Dunster (N.J. 1974), 328 A.2d 238. Here, Campbell was not 

detained or incarcerated but instead was free on bail. 

The court should not have discharged the defendant 

where the more reasonable approach, since all parties were 

finally present before the court including the Wisconsin 

authorities, would have been to deliver the fugitive 

according to the Governor's Warrant. The court did not have 

authority to quash the writ of extradition and the warrant 

was valid on that date. 

We reverse the oral order of the District Court 

quashing the writ of extradition. 

We concur: 

hief Justice 

@e 

Justices 
Mr. Justice LTohn C. Sheehy, dissenting: 

I dissent. 

It is apparent from the record that the District Judge 

in this case became properly impatient with the unexplained 

delay of the Wisconsin authorities to consummate an arrest of 

the defendant under the Governor's warrant. His court was 

being played with, the defendant's rights were being ignored, 

and there is considerable doubt under the statutes of Montana 

and the federal laws that he had any further jurisdiction to 

hand over the defendant to Wisconsin. 

The majority have misread or misinterpreted the 

applicable statutes here. The authority for Montana 

officials to arrest a defendant wanted in another state for a 

crime is found in 5 46-30-227, MCA. If the defendant does 

not consent to extradition, he must be committed to the 

county jail for not exceeding 30 days or admitted to bail, 5 

46-30-302, MCA, to provide time to obtain a requisition from 

the demanding state. Upon receipt of the requisition, the 

Governor of this state may then issue an arrest warrant 

against the defendant. Section 46-30-213, MCA. The 30-day 

period is a limitation upon the power of Montana to hold the 

defendant without a requisition from the demanding state when 

Montana proceeds against him under 5 46-30-227, MCA. 

In this case, the warrant from the Governor was not 

issued within the 30-day period. Campbell first appeared 

before the court on September 14, 1987, and the warrant of 

the Governor was not obtained until October 30, 1987. Yet 

the state had a statutory means to continue to hold the 

defendant under bail. It could have, under 9 46-30-304, 

MCA, moved the District Court for an additional 60 days. The 
defendant was entitled to his release at the end of that 

period or on November 13, 1987. 

The state itself maintains that the defendant was never 

arrested under the Governor's Warrant, only that he was 

served with a copy of it. Yet an arrest under the Governor's 

warrant is the sine qua - non of extradition proceedings. Only 

the Governor has the statutory power to issue a warrant of 

arrest which will result in the delivery of a defendant to 

another state's jurisdiction. Section 46-30-201, MCA. Since 

no arrest occurred under the Governor's Warrant, the 

defendant was clearly entitled to be discharged from custody 

at the expiration of the time extended by the District Court. 

It is true that in this case the District Court stated 

it would quash the writ of extradition. Of course, the 

District Court had no such power. Yet discharging the 

defendant from custody in this case was proper. The 

defendant had not been arrested under the authority of the 

Governor's warrant within the time permitted by the statutes. 

If the argument of the State is correct, the defendant was 

never arrested under the Governor's warrant. The defendant 

was clearly entitled to be released from custody and his bond 

discharged. 

Finally, nothing in this case prevents the state of 

Wisconsin from starting over and doing it right. This is the