NM Stat § 31-5-12 (2021)
2021 New Mexico Statutes|Chapter 31 - Criminal Procedure|Article 5 - Interstate Compacts|Section 31-5-12 - Agreement on Detainers.

The Agreement on Detainers is entered into with all other jurisdictions legally joining therein in a form substantially as follows: AGREEMENT ON DETAINERS Article 1 - Findings 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 - Definitions As used in this agreement: A. "state" means a state of the United States, the United States, a territory or possession of the United States, the District of Columbia or the commonwealth of Puerto Rico; B. "sending state" means a state in which a prisoner is incarcerated at the time that he initiates a request for final disposition pursuant to Article 3 of this agreement or at the time that a request for custody or availability is initiated pursuant to Article 4 of this agreement; and C. "receiving state" means the state in which trial is to be had on an indictment, information or complaint pursuant to Article 3 or Article 4 of this agreement. Article 3 - Prisoner's Request for Final Disposition 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 days after he has 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, 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. 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 Subarticle A shall be given or sent by the prisoner to the warden, commissioner of corrections 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 corrections 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 Subarticle A shall operate as a request for final disposition of all untried indictments, informations 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 corrections 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 subarticle 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 Subarticle A 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 Subarticle D, 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 subarticle 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 Subarticle A shall void the request. Article 4 - Prosecutor's Request for Final Disposition A. The appropriate officer of the jurisdiction in which an untried indictment, information or complaint is pending is 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 of this agreement upon presentation of a written request for temporary custody or availability to the appropriate authorities of the state in which the prisoner is incarcerated, but the court having jurisdiction of the indictment, information or complaint shall have duly approved, recorded and transmitted the request, and there shall be a period of thirty days after receipt by the appropriate authorities before the request is honored, within which period the governor of the sending state may disapprove the request for temporary custody or availability, either upon his own motion or upon motion of the prisoner. B. Upon receipt of the officer's written request as provided in Subarticle A, 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 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 Subarticle A, 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 of this agreement, 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 - Transfer of Custody A. In response to a request made under Article 3 or Article 4 of this agreement, the appropriate authority in a sending state shall offer to deliver temporary custody of the prisoner to the appropriate authority in the state where the indictment, information or complaint is pending against the 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 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; and (2) a 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 refuses or fails to accept temporary custody of the person, or if 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 of this agreement, the appropriate court of the jurisdiction where the indictment, information or complaint had been pending shall enter an order dismissing it 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 or 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 the 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 subarticle govern unless the states concerned 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 an [and] in the government of a party state or between a party state and its subdivisions as to the payment of costs or responsibilities therefor. Article 6 - Application A. In determining the duration and expiration dates of the time periods provided in Articles 3 and 4 of this agreement, the running of the 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 - Compact Administrator 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 - Party States This agreement shall enter into full force and effect as to a party state when such state has enacted the agreement into law. A state party to this agreement may withdraw herefrom by enacting a statute repealing this agreement. 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 the withdrawal takes effect, nor shall it affect their rights in respect thereof. Article 9 - Construction 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. History: 1953 Comp., § 41-20-19, enacted by Laws 1971, ch. 270, § 1. ANNOTATIONSCross references. — For filing interstate compacts with supreme court librarian, see 14-3-20 NMSA 1978. Not applicable to parolees. — The interstate agreement on detainers does not apply to parolees. State v. Frohnhofer, 2011-NMCA-109, 150 N.M. 643, 267 P.3d 78, cert. denied, 2011-NMCERT-009, 269 P.3d 903. Where the state of New Mexico lodged a detainer against defendant; defendant requested a final disposition of the detainer; prior to the 180-day deadline, defendant was paroled in Colorado; and defendant's trial did not commence before the 180-deadline, the district court properly denied defendant's motion to dismiss, because the interstate agreement on detainers did not apply to defendant who was a parolee. State v. Frohnhofer, 2011-NMCA-109, 150 N.M. 643, 267 P.3d 78, cert. denied, 2011-NMCERT-009, 269 P.3d 903. Applicability. — The Interstate Agreement on Detainers Act is an agreement between the governments of member states. The federal government also subscribes to the act and, for purposes of it, is considered a single state. It applies to transfers between states, not transfers within a state. Hence, it has no application if a prisoner in federal custody in one federal judicial district faces another federal indictment in a different federal judicial district. U.S. v. Walling, 974 F.2d 140 (10th Cir. 1992). Applicability. — The provisions of the Interstate Agreement on Detainers Act do not apply to pretrial detainees. U.S. v. Muniz, 1 F.3d 1018 (10th Cir. 1993) Agreement not applicable where detainer for sentencing only. — A request for the disposition of an outstanding sentencing is not cognizable under the Interstate Agreement on Detainers; the 180-day requirement of Paragraph A of Article 3 applies only where a detainer for "trial" is present, not where the detainer is only for sentencing. State v. Sparks, 1986-NMCA-010, 104 N.M. 62, 716 P.2d 253, cert. denied, 103 N.M. 798, 715 P.2d 71. Probation and parole proceedings. — This section does not apply to probation revocation proceedings. State v. McDonald, 1991-NMCA-132, 113 N.M. 305, 825 P.2d 238, cert. denied, 113 N.M. 44, 822 P.2d 1127 (1992). Probation and parole proceedings. — The Interstate Agreement on Detainers Act applies only to detainers lodged on untried criminal charges and has no applicability to probation or parole revocation detainers. McDonald v. N.M. Parole Bd., 955 F.2d 631 (10th Cir. 1991), cert. denied, 504 U.S. 920, 112 S. Ct. 1968, 118 L. Ed. 2d 568 (1992). Prisoner's burden of substantial compliance. — Where a prisoner bypasses the statutory procedure and attempts to communicate directly with the receiving state, absent actual notice by the receiving state, he or she has the burden of complying substantially with the requirements of the Interstate Agreement on Detainers Act. State v. Tarango, 1987-NMCA-027, 105 N.M. 592, 734 P.2d 1275, cert. denied, 105 N.M. 521, 734 P.2d 761, overruled on other grounds by Zurla v. State, 1990-NMSC-011, 109 N.M. 640, 789 P.2d 588. Substantial compliance. — Substantial compliance for purposes of the Interstate Agreement on Detainers Act means the prisoner must file the proper documents, including the certificate of status, with the proper prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction, using registered or certified mail, return receipt requested. State v. Tarango, 1987-NMCA-027, 105 N.M. 592, 734 P.2d 1275, cert. denied, 105 N.M. 521, 734 P.2d 761, overruled on other grounds by Zurla v. State, 1990-NMSC-011, 109 N.M. 640, 789 P.2d 588. The defendant failed to meet the requirements of this section since his petition for a writ of habeas corpus requesting revocation of the Arizona arrest warrant and removal of detainer did not constitute a request for final disposition of detainer, and there was no evidence that he gave actual notice to Arizona, or otherwise substantially complied with the statutory requirements. Palmer v. Williams, 1995-NMSC-040, 120 N.M. 63, 897 P.2d 1111. The defendant's letter to the district attorney's office stating, "Were you to file a detainer . . ., I could request final disposition" was inadequate to activate his rights under the Interstate Agreement for Detainers Act. State v. Morawe, 1996-NMCA-110, 122 N.M. 489, 927 P.2d 44. Actual notice of critical information required. — While the defendant did not have to furnish the certificate required by Paragraph A of Article 3 to give the prosecutor and the district court actual notice, he did have an obligation to furnish the information that would be contained therein. Since the county prosecutor and the district court did not have actual notice of critical information, such as the fact that the defendant was presently incarcerated in the Texas penal complex, the defendant was not relieved of his burden of substantially complying with the requirements of this agreement. State v. Smith, 1993-NMCA-070, 115 N.M. 749, 858 P.2d 416, cert. denied, 115 N.M. 795, 858 P.2d 1274. Invocation of protections. — Writs of habeas corpus ad prosequendum will not, by themselves, invoke the protections of the Interstate Agreement on Detainers. State v. Montoya, 1994-NMCA-155, 119 N.M. 95, 888 P.2d 977, cert. denied, 119 N.M. 168, 889 P.2d 203 (1995). Expiration of 180-day period on Sunday. — Where the 180-day limitation period of Paragraph A of Article 3 expires on a Sunday, a trial is timely if held the next day. State v. Alderete, 1980-NMCA-084, 95 N.M. 691, 625 P.2d 1208, cert. denied, 94 N.M. 674, 615 P.2d 991. Time limitation tolled only when prisoner unable to stand trial or on continuance for good cause. — The time limitations of the Interstate Agreement on Detainers Act (Section 31-5-12 NMSA 1978) are intended to permit sufficient time and opportunity for the disposition of all pretrial proceedings and the commencement of trial before the time limitations expire. Time is tolled only when the prisoner is "unable to stand trial"; in all other circumstances, the mechanism for reasonably or necessarily extending the time limits is by a request for continuance "for good cause shown." State v. Shaw, 1982-NMCA-133, 98 N.M. 580, 651 P.2d 115. Evidence of "for good cause shown". — Continuances because of the unavailability of a trial judge, where the assigned judge was elected to the supreme court and the other judges in the district had a full complement of cases, and because of a local rule which required the assignment of all cases involving a single defendant to one judge were "for good cause shown," pursuant to Paragraph A of Article 3 of this section. State v. Aaron, 1984-NMCA-124, 102 N.M. 187, 692 P.2d 1336. Good cause for continuance. — The state had good cause to request a continuation beyond the 120-day limit for commencement of the defendant's trial based on its discovery that the grand jury that indicted the defendant included an unsworn juror, a deficiency that required additional time to correct. State v. Livernois, 1997-NMSC-019, 123 N.M. 128, 934 P.2d 1057. Continuation of trial date does not violate 180-day period. — Where a trial has in fact been continued although there is no formal order continuing the trial date, the 180-day limitation period of Paragraph A of Article 3 is not violated. State v. Alderete, 1980-NMCA-084, 95 N.M. 691, 625 P.2d 1208, cert. denied, 94 N.M. 674, 615 P.2d 991. State's representation that it will reindict is not a de facto continuance under Paragraph A of Article 3. State v. Shaw, 1982-NMCA-133, 98 N.M. 580, 651 P.2d 115. Time period does not commence anew upon refiling of indictment. — A second indictment on the identical charges for which a defendant was previously returned to New Mexico for pretrial and trial proceedings cannot avoid the time restrictions of Paragraph A of Article 3 on the theory that the time commences anew from the filing of the second indictment. State v. Shaw, 1982-NMCA-133, 98 N.M. 580, 651 P.2d 115. When defendant's request for final disposition does not trigger 180-day rule. — Where the defendant wrote the district attorney in Albuquerque to request a final disposition of pending Arizona charges on the same day that he pleaded guilty to California felony charges, he had not entered upon "term of imprisonment" within this section; therefore, his request did not trigger section's requirement of trial within 180 days after request for disposition of the charge. State v. Duncan, 1980-NMCA-162, 95 N.M. 215, 619 P.2d 1259. Triggering the 180 day provision. — The Interstate Agreement for Detainers Act becomes effective only when a detainer is filed, and a letter sent by the defendant to the district attorney's office before issuance of the detainer was insufficient to trigger the 180-day trial provision. State v. Morawe, 1996-NMCA-110, 122 N.M. 489, 927 P.2d 44. Not applicable to sentencing. — Because the Interstate Agreement on Detainers Act does not apply to sentencing and because a habitual offender proceeding addresses sentence enhancement, a defendant held in prison in another state does not have a right to a final disposition of habitual offender status within 180 days of serving a request for a final disposition. State v. Padilla, 2006-NMCA-070, 139 N.M. 700, 137 P.3d 640, cert. denied, 2006-NMCERT-006, 140 N.M. 224, 141 P.3d 1278. Waiver of time limits. — Although the defendant did not specifically request a waiver of the Interstate Agreement on Detainers Act time limitations, such a waiver was implied from the defendant's waiver of all speedy trial time limitations. State v. Montoya, 1994-NMCA-155, 119 N.M. 95, 888 P.2d 977, cert. denied, 119 N.M. 168, 889 P.2d 203 (1995). Agreement not pertinent following absolute release of prisoner. — When a sending state absolutely releases a prisoner within 120 days of his arrival in the receiving state, provisions of the Interstate Agreement on Detainers Act cease to be pertinent. State v. Quiroz, 1980-NMCA-039, 94 N.M. 517, 612 P.2d 1328, cert. denied, 94 N.M. 675, 615 P.2d 992. Law reviews. — For annual survey of New Mexico criminal procedure, see 16 N.M.L. Rev. 25 (1986). Am. Jur. 2d, A.L.R. and C.J.S. references. — Validity, construction, and application of interstate agreement on detainers, 98 A.L.R.3d 160. Availability of postconviction relief under 28 USCS § 2254 based on alleged governmental violation of Interstate Agreement on Detainers Act (18 USCS Appx), 63 A.L.R. Fed. 155.