NE Code § 29-759 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-759 - Text of agreement.

29-759.  Text of agreement.The Agreement on Detainers is hereby enacted into law and entered into by this state with all other jurisdictions legally joining therein in the form substantially as follows:"TEXT OF THE AGREEMENT ON DETAINERSThe contracting states solemnly agree that:Article IThe 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 IIAs 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 that he initiates a request for final disposition pursuant to Article III hereof or at the time that a request for custody or availability is initiated pursuant to Article IV hereof.(c) Receiving state shall mean the state in which trial is to be had on an indictment, information or complaint pursuant to Article III or Article IV hereof.Article III(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 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 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 paragraph (a) hereof 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 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 IV(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 V (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 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 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 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 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 V(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 V(a) In response to a request made under Article III or Article IV 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 III 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 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.(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 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 subdivisions, as to the payment of costs, or responsibilities therefor. The costs contemplated by this section which must be paid by the State of Nebraska or the appropriate political subdivision thereof shall be paid in the same manner and extent and from the same funds which would have been used in the case of extradition of a prisoner from another state.Article VI(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV 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 VIIEach 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 VIIIThis 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 IXThis 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."Source  Laws 1963, c. 154, § 1, p. 543. Annotations  1. Detainer 2. Speedy trial 3. Sending and receiving states 4. Miscellaneous 1. Detainer A detainer for a prisoner who has been convicted but not sentenced does not relate to an "untried indictment, information or complaint" and thus does not trigger the procedural requirements of Article III of the interstate Agreement on Detainers. State v. Jimenez, 283 Neb. 95, 808 N.W.2d 352 (2012). For purposes of the Agreement on Detainers, a "detainer" is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he is wanted to face criminal charges pending in another jurisdiction. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). A detainer is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he or she is wanted to face criminal charges pending in another jurisdiction. More specifically, a detainer is a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking the institution either to hold the prisoner for the agency after his or her release or to notify the agency when release of the prisoner is imminent. A state writ of habeas corpus ad prosequendum, seeking the immediate delivery of a prisoner for trial on criminal charges, does not constitute a detainer. Mere notice of pending criminal charges is insufficient to invoke the provisions of the Agreement on Detainers. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997). Under the Agreement on Detainers, a detainer is a notification filed with the institution in which an individual is serving a sentence, advising the prisoner that he is wanted to face criminal charges pending in another jurisdiction. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). 2. Speedy trial A court may not apply Nebraska's 6-month speedy trial statute under section 29-1207 to determine whether a prisoner is timely brought to trial under article III(a) of the Agreement on Detainers. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). The Agreement on Detainers has separate speedy trial provisions depending upon whether its procedures are initiated by the prisoner or authorities in the jurisdiction where the charge is pending. Article III of the agreement prescribes the procedure by which a prisoner against whom a detainer has been lodged may demand a speedy disposition of outstanding charges. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). The 180-day trial limitation under article III(a) of the Agreement on Detainers begins to run on the day the prisoner's request for disposition of untried charges is received by the prosecutor and court of jurisdiction. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). Upon receipt of a prisoner's proper request for disposition of untried charges under article III of the Agreement on Detainers, authorities in the state where a charge is pending must bring the prisoner to trial within 180 days. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). When seeking a discharge on speedy trial grounds under article III(a) of the Agreement on Detainers, defense counsel's performance is deficient when he or she fails to present evidence showing the time limitation for trial under article III(a) has been triggered. The prisoner was prejudiced by counsel's failure when there was a reasonable probability that an appeal or petition for further review from the district court's denial of prisoner's motion to discharge would have resulted in a reversal had the evidence been submitted. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). The Agreement on Detainers controls a defendant's speedy trial rights when he or she is already incarcerated in another state or in a federal facility before an information is filed against the defendant in Nebraska. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001). Article III of the Agreement on Detainers prescribes the procedure by which a prisoner against whom a detainer has been lodged may demand a speedy disposition of outstanding charges. Upon receipt of a proper request for disposition under this article, the receiving state must bring the prisoner to trial within one hundred eighty days. Also, under this article, for a prisoner's demand for disposition of the charges to trigger the one hundred eighty day period, it must be made in the manner required by Article III. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). A ruling on a motion to discharge, based on the speedy trial provisions of the Agreement on Detainers, is a final, appealable order. State v. Rieger, 8 Neb. App. 20, 588 N.W.2d 206 (1999). Under Article III of the Agreement on Detainers, for a prisoner's demand for disposition to trigger the 180-day period, it must be made in the manner therein required. State v. Nearhood, 2 Neb. App. 915, 518 N.W.2d 165 (1994). 3. Sending and receiving states A prisoner is not returned to his original place of imprisonment when he is returned to the sending state simply to face pending charges. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003). If one jurisdiction is actively prosecuting a defendant on current and pending charges, the defendant is unable to stand trial in the state in which he requested final disposition until resolution of the pending charges in the sending state. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003). A ruling denying a motion to dismiss with prejudice for failure to bring an individual to trial within 120 days from the date of his or her arrival in the receiving state is a final, appealable order. The speedy trial provisions of the Agreement on Detainers are triggered only when a detainer is filed with the state where an individual is a prisoner by the state having untried charges pending against the individual. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997). Article IV of the Agreement on Detainers sets forth the procedures by which the authorities where the charges are pending may initiate the process whereby a prisoner is returned to the state for trial. In respect of any proceedings made possible under this article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). Article V(d) of this section permits the receiving state to prosecute a defendant not only for the charge or charges forming the basis of the detainer but also on all other charges arising out of the same transaction. State v. Steele, 7 Neb. App. 110, 578 N.W.2d 508 (1998). The right of a prisoner under Article IV(c) of the Agreement on Detainers to be tried within 120 days of being brought into the state is a statutory right and not a constitutional right. A prisoner may waive this right by not raising the issue prior to or during trial. State v. Harper, 2 Neb. App. 220, 508 N.W.2d 584 (1993). 4. Miscellaneous If an action for untried charges is not brought to trial within the time periods authorized by articles III and IV of the Agreement on Detainers, the action shall be dismissed with prejudice under article V(c) of the agreement. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). In a ruling on a motion to dismiss with prejudice based on alleged violations of the Agreement on Detainers, a trial court's pretrial factual findings regarding the application of provisions of the agreement will not be disturbed on appeal unless clearly wrong. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). To avoid prolonged interference with rehabilitation programs, the Agreement on Detainers provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences. State v. Rieger, 270 Neb. 904, 708 N.W.2d 630 (2006). The Interstate Agreement on Detainers applies solely to persons who have entered upon a term of imprisonment and therefore does not include pretrial detainees. State v. Reed, 266 Neb. 641, 668 N.W.2d 245 (2003). The provisions of the Agreement on Detainers apply only when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party state. State v. Steele, 261 Neb. 541, 624 N.W.2d 1 (2001). In ruling on a motion to dismiss with prejudice based on alleged violations of the Agreement on Detainers, it is proper for the trial court to hold a pretrial evidentiary hearing to determine whether a detainer was filed against the defendant and, if a detainer was filed, to determine whether the provisions of the agreement were violated. The Agreement on Detainers provides the procedure whereby persons who are imprisoned in one state or by the United States, and who are also charged with crimes in another state or by the United States, can be tried expeditiously for the pending charges while they are serving their current sentences, in order to avoid prolonged interference with rehabilitation programs. Because the Agreement on Detainers is a congressionally sanctioned interstate compact, it is a federal law subject to federal construction and, thus, U.S. Supreme Court interpretations of the Agreement on Detainers are binding upon state courts. Articles IV and V of the Agreement on Detainers provide the procedures by which the authorities in the state where the charges are pending, the receiving state, may initiate the process whereby a prisoner is transferred to the receiving state for trial on the pending charges. State v. Williams, 253 Neb. 619, 573 N.W.2d 106 (1997). Habeas corpus is not the proper action to challenge the validity of a detainer based upon an untried complaint, where the state filing the detainer has not requested transfer of the prisoner. Wickline v. Gunter, 233 Neb. 878, 448 N.W.2d 584 (1989). Article V(c) of the Agreement on Detainers provides for dismissal of a pending complaint on which a detainer is based if the appropriate authority shall refuse or fail to accept custody of the prisoner against whom the charges are pending or fail to bring that prisoner to trial within the period provided in Article III or Article IV. The Agreement also provides the remedy of dismissal of charges with prejudice in those specific cases not including possible errors made by another party's prison officials. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). The Agreement on Detainers was designed to promote the expeditious and orderly disposition of outstanding charges against a prisoner and to determine the proper status of any and all detainers based on untried indictments, informations, or complaints. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). The provisions of the Agreement on Detainers apply only when a detainer has been lodged against a prisoner who has entered a term of imprisonment in a party state. State v. Reynolds, 218 Neb. 753, 359 N.W.2d 93 (1984). The phrase "unable to stand trial" included in article VI(a) of this section includes those periods of delay occasioned by the defendant. Failure to appear at a preliminary hearing due to re-incarceration is clearly an example of a delay occasioned by the defendant. State v. Meyer, 7 Neb. App. 963, 588 N.W.2d 200 (1998).