No. 90-382
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Appellant,
v.
JAN 22 1991
MARY GAYNELL HOLLIMAN,
Defendant and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mike Salvagni, County Attorney, Bozeman, Montana;
Marty Lambert, Deputy County Attorney, Bozeman,
Montana; Marc Racicot, Attorney General, Helena,
Montana; Kathy Seeley, Assistant Attorney General,
Helena, Montana
For Respondent:
Marcelle Quist, Bolinger C Quist, Bozeman, Montana
Submitted on briefs: December 13, 1990
Decided; January 22, 1991
Filed: . -
@
r,
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
The State of Montana appeals from an order of the Eighteenth
Judicial District Court, Gallatin County, quashing and vacating a
governor's warrant issued on defendant Mary Gaynell Holliman. We
reverse.
The issue presented by the State is whether the District Court
improperly quashed and vacated the governor's warrant issued in
proceedings to extradite Holliman.
On January 30, 1990, the State filed a fugitive complaint
against Holliman. The complaint stated that she was charged in the
State of Mississippi with the crime of "uttering a forgery.'' On
January 31, 1990, Holliman appeared in District Court on the
fugitive complaint. The court set bail at $2,000 and appointed an
attorney to represent Holliman.
At the same time, extradition of Holliman was being sought,
she faced a felony deceptive practices charge in Gallatin County.
On February 22, 1990, Holliman pleaded guilty to the deceptive
practices charge. Later, the District Court sentenced Holliman to
five years1 imprisonment. The court suspended Holliman's sentence,
on the condition that she serve 120 days in the Gallatin County
jail with credit for the 60 days she had previously served.
On February 26, 1990, a hearing was held on the fugitive
complaint. Holliman refused to waive extradition. The District
Court granted a 30 day extension for the extradition ' t be
'o
finalized by the State of Mis~issippi.~~ March 26, 1990, the
On
court held another hearing to review Hollimanls extradition. At
the conclusion of the hearing, the court noted that Holliman was
serving time in the county jail on the felony deceptive practice
conviction and granted the State until April 30, 1990, to serve the
governorlswarrant. On April 30, 1990, Holliman requested that she
be released from the fugitive warrant because the governorls
warrant had not been received. In response to Hollimanlsrequest,
the District Court released Holliman on the fugitive Mississippi
warrant and explained that I1[i]f while the Defendant is serving the
remainder of her jail sentence from another matter the Governorls
warrant does arrive then the court will again review this matter."
Finally, on May 15, 1990, Governor Stephens issued a
governorls warrant commanding that the authorities apprehend
Holliman. The District Court received the warrant on May 18, 1990.
Later, in District Court, the State informed the court that
Holliman was being held on the governorls warrant. Hollimanls
incarceration on the deceptive practices conviction expired on May
19, 1990. The District Court set bail on the governorls warrant
at $2,000. The court also continued the matter until May 29, 1990,
to give Holliman and her attorney an opportunity to review the
extradition documents.
The District Court held a hearing on Hollimanls extradition
May 29, 1990, during which the State requested that the court
continue to hold Holliman for seven days to allow Mississippi
authorities to arrive to transport Holliman back to Mississippi.
In response, Holliman objected to the time it had taken to obtain
the governor's warrant and argued that, because it had not been
obtained within 90 days, the warrant was "not correctl1 and she
should be released. The State contended that the 90 days referred
to by Holliman applied only to incarceration of Holliman prior to
her arrest under the governor's warrant. Holliman then requested
a bail hearing. The District Court suggested that Holliman file
a motion for reduction of bail and a petition for writ of habeas
corpus.
The District Court held a hearing on the motion to reduce bail
on June 4, 1990. At the time of hearing, Holliman had not yet been
extradited to Mississippi. The court, obviously angered at the
delays in extraditing Holliman to Mississippi, released Holliman
on her own recognizance. Later, the court issued a written order
releasing Holliman, and quashing and vacating the governor's
warrant. The State now appeals from the ~istrictCourt's order
quashing and vacating the governor's warrant.
Whether the District Court improperly quashed and vacated the
governor's warrant issued in proceedings to extradite Holliman.
In 1973, Montana adoptedthe Uniform criminal Extradition Act,
ch. 513, 5 14, Laws of (Montana) 1973, 1405. Under Montana's
~xtraditionAct, the State charged Holliman by fugitive complaint
on January 30, 1990, pursuant to 5 46-30-301, MCA. She appeared
before the court on the fugitive warrant on January 31, 1990.
Hollimanlsclaim before the District Court on June 4, 1990, and now
on appeal, was that she was not extradited within the time period
prescribed in 5 5 46-30-302 and -304, MCA, and therefore should be
released. Section 46-30-302, MCA, states:
If from the examination before the judge or magistrate
it appears that the person held is the person charged
with having committed the crime alleged and, except in
cases arising under 46-30-204, that he has fled from
justice, the judge or magistrate must by a warrant
reciting the accusation commit him to the county jail for
such a time not exceeding 30 days and 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 give bail as provided
in 46-30-303 or until he shall be legally discharged.
Section 46-30-304, MCA, reads:
If the accused is not arrested under the warrant of the
governor by the expiration of the time specified in the
warrant, bond, or undertaking, a judge or magistrate may
discharge him or may recommit him for a further period
of 60 days or a supreme court justice or district court
judge may again take bail for his appearance and
surrender, as provided in 46-30-303, for a period not to
exceed 60 days after the date of the new bond or
undertaking.
These sections allow a 90 day time period that a fugitive awaiting
a governor's warrant may be held in custody or on bond prior to
discharge and a release from bail. The 90 day limit set by 5 5 46-
30-302 and -304, MCA, expired on or about April 30, 1990.
Holliman argues that the 90 day time limit set forth in 55 46-
30-302 and -304, MCA, requires that a governor's warrant issue
within 90 days of the filing of the fugitive complaint or the
governor's warrant is invalid. The State does not dispute, and the
record reveals, that Holliman was not arrested on the governor's
warrant within the time limit set by 5 5 46-30-302 and -304, MCA,
for custody on a fugitive warrant. In fact, on April 30, 1990, the
District Court released Holliman on the fugitive warrant because
the governor's warrant had not been received. The release of
Holliman on the fugitive warrant did not result in the actual
release of Holliman because she was still serving her 120 day jail
sentence on the deceptive practices conviction.
The State, relying on In Re Petition of Blackburn (1985), 215
Mont. 440, 701 P.2d 715, argues that Holliman's custody under the
governor's warrant is valid and the District Court had no authority
to quash the warrant. In Blackburn, Montana's governor issued a
warrant at the request of the State of Colorado, approximately four
months after the petitioner Blackburn was arrested, arraigned and
released regarding the Colorado charges. In holding that the
arrest of Blackburn under the governor's warrant was proper, this
Court recognized that the time limits set forth in 46-30-
302 and -304, MCA, do not apply to the issuance and execution of
a governor's warrant. Blackburn, we stated:
We hold that 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. These sections do not require dismissal
of extradition proceedings for any supposed time limits
on issuance of the governor's warrant.
Blackburn, 215 Mont. at 446, 701 P.2d at 719; State v. Campbell
(1988), 233 Mont. 502, 506, 761 P.2d 393, 396.
Blackburn is consistent with the holdings in other states
applying the Uniform Criminal Extradition Act. "The ninety-day
period in the act merely limits the time an accused may be
incarcerated while awaiting a governor's warrant; it does not
require that a governor's warrant issue within the ninety-day
period.l1 Commonwealth of Pennsylvania v. Storms (Pa. 1986), 504
A.2d 329, 330; See also Orton v. State (Fla. 1983), 431 So.2d 236,
237; Stynchcombe v. Whitley (Ga. 1978), 242 S.E.2d 720, 721-22;
Application of Simpson (Kan. 1978), 586 P.2d 1389, 1390.
Here, the District Court had no authority to quash the
governor's warrant issued May 15, 1990. Holliman was discharged
from the fugitive warrant on April 30, 1990, after the expiration
of the 90 day imprisonment on the fugitive complaint, as was proper
under extradition statutes. She remained in custody under the
deceptive practices conviction, however, and was arrested under
the governor's warrant. This procedure did not violate the
extradition statutes.
Accordingly, the District Court's order is reversed, and the
governor's warrant is in full force and effect.
we concur:
- Justices ' ,i