Carlton v. State

Eldridge, Judge,

dissenting.

I respectfully dissent.

1.

According to the clear wording of Article III (a), the right of a prisoner to be tried within 180 days accrues only after the precise operational procedures set forth in the [Interstate Agreement on Detainers] are completely satisfied. It is incumbent upon the prisoner to initiate these procedures, and the Court of Appeals has previously indicated that the notice provisions of Article III (b) must be strictly complied with.4

In that regard, Article III (b) states that: “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.”

In the instant case, Carlton served the prosecuting official, but *659he failed to mail his IAD request, certified mail with return receipt requested, to the Walker County Superior Court. The majority claims that “the copy of the letter in the record shows it was sent to the clerk of the superior court, and the first page of the letter shows it was filed on October 6, 1998.” However, the letter sent was a form letter addressed to Herbert E. Franklin, District Attorney, Walker County, and was signed for by the district attorney’s office. On the bottom of the last page of the district attorney’s letter is a form “cc: Clerk of Court” without identification of any clerk of court to which the letter was sent or any indication whatsoever that such was actually done. The record shows no return receipt from the clerk of court, although eight return receipts are in the record for other documents sent certified mail, return receipt requested. In fact, nowhere in the record does Carlton even claim he sent the IAD letter to the clerk of court, although he states in the record six different times that he mailed it to the district attorney. It would appear the letter was sent to the district attorney’s office, which made a copy of the original and filed it with the court clerk. “[T]he plain language of Article III (b) simply does not support [any other] argument, as it requires that notice ‘shall’ be served on the prosecuting officer and court ‘by registered or certified mail, return receipt requested.’ Nowhere does Article III (b) suggest that alternative forms of service will be deemed acceptable.”5

The dismissal of a criminal case (or, in this case, not permitting the State to even begin a criminal case) is an extreme sanction which can be invoked only if there has been a strict compliance with the statute. Here, there is no evidence in the record that the IAD request was mailed to the Clerk of Walker County Superior Court, registered mail, return receipt requested, as required under the IAD. “The record in the present case shows that the defendant filed his written request with the district attorney’s office, but he did not file his request with the court or otherwise comply with the remaining requirements of the statute.”6 Accordingly, the trial court did not err in denying Carlton’s motion to dismiss. A trial court’s judgment, right for any reason, will be affirmed.7

2. Carlton based his IAD request on a detainer filed pursuant to an arrest warrant for possession of methamphetamine; no indictment has ever been filed with regard thereto. The plain language of the IAD limits its application to “any untried indictment, information or complaint.”8 And the Supreme Court of the United States has held that the plain language of the Agreement controls over the “ ‘broader *660purposes of the legislation.’ ”9 Further, it is important to recognize, as the majority does not, that “Art. Ill does not apply to all detainers, but only to those based on ‘any untried indictment, information or complaint.’ ”10 “[T]he phrase ‘untried indictment, information or complaint’ in Art. Ill refers to criminal charges pending against a prisoner.”11

In this case, an arrest warrant — with the standard sworn affidavit that accompanies sheriff’s arrest warrants12 — is not a “pending criminal charge.” At best, it entitles Carlton to a preliminary hearing before a magistrate, which may or may not result in a bind-over, which may or may not result in presentment before a grand jury, which may or may not result in the return of a true bill.

The majority’s reliance on the 1978 case of United States v. Mauro, supra, is. misplaced. Even the most cursory reading shows that Mauro dealt with federal habeas corpus applications and has nothing whatsoever to do with the legal issue before us. In fact, the Mauro Court expressly held that a writ of habeas corpus ad prose-quendum was not a “detainer” under Art. Ill at all, but was a “ ‘written request for temporary custody’ ” within the meaning of the IAD.13 That Court held that a writ of habeas corpus ad prosequendum was not an “untried indictment, information or complaint.”14 To then hold, as does the majority, that Mauro “implicitly acknowledged” that a detainer based upon an arrest warrant triggers the IAD under Art. Ill is error.

Apparently recognizing that the plain language of the IAD actually controls, the majority has decided to hold that an arrest warrant is a “complaint”. for purposes of the IAD, so as to fit within the parameters of Article HI of the Agreement. However, even under the majority’s controlling authority for this novel proposition, Black’s Law Dictionary, a “complaint” under Art. Ill is a federal criminal charging tool that is analogous to an accusation here in Georgia, and a misdemeanor trial may commence upon a complaint as it does upon an accusation. Fed. R. Crim. P. 3, 58 (b) (1). As such, a “complaint” is an instrument demonstrating “pending charges.” Upon the filing of a complaint, an arrest warrant may issue, but the warrant is not the complaint, itself. Fed. R. Crim. P. 3, 4. An arrest warrant based on a *661sheriff’s affidavit — absent indictment, information, or complaint — does not demonstrate “pending charges.”

Decided March 29, 2002 Albert L. Watson III, for appellant. Herbert E. Franklin, Jr., District Attorney, Christopher Arnt, Assistant District Attorney, for appellee.

Further, Sixth Amendment rights attach upon the filing of a complaint, as they do upon the filing of other charging instruments. Fed. R. Crim. R 5 (c).15 Such rights do not, as here, attach upon the mere issuance of an arrest warrant.16

In short, there is nothing about an arrest warrant issued on a sheriff’s affidavit that remotely resembles a “complaint” under Art. Ill for purposes of the LAD. I believe it unwise for this Court to import federal charging procedures into Georgia law — with the myriad of constitutional ramifications that come with such procedures — simply to reverse a single case.

As a respected member of this Court, Judge Benham correctly determined in Newt v. State17 that “the statute [IAD] relates only to an ‘untried indictment, information or complaint,’ and does not apply to warrants for arrest.”18 So it has been since 1989. The majority’s reliance on the 1978 Mauro case of which this Court was aware at the time Newt was decided provides no legitimate reason for overruling established precedent. Accordingly, the trial court did not err in denying Carlton’s motion to dismiss.

I am authorized to state that Chief Judge Blackburn joins in this dissent and Judge Ruffin joins in Division 2 of this dissent.

(Footnotes omitted.) Clater v. State, 266 Ga. 511, 512-513 (3) (467 SE2d 537) (1996).

(Emphasis in original.) Id. at 513 (3).

Johnson v. State, 154 Ga. App. 512, 513 (268 SE2d 782) (1980).

State v. Sims, 248 Ga. App. 277, 278 (546 SE2d 47) (2001).

OCGA § 42-6-20, Art. Ill (a), Ga. L. 1972, p. 938, § 1; Ga. L. 2000, p. 1589, § 3.

Carchman v. Nash, 473 U. S. 716, 723 (II), 729 (III) (C) (105 SC 3401, 87 LE2d 516) (1985); United States v. Mauro, 436 U. S. 340 (98 SC 1834, 56 LE2d 329) (1978).

(Footnote omitted.) Carchman v. Nash, supra at 727 (III) (B).

Id. at 725 (III) (A).

OCGA § 17-4-41.

Mauro, supra at 361-362 (IV) (B), (V) (“We therefore conclude that a writ of habeas corpus ad prosequendum is not a detainer for purposes of the Agreement.”).

Id. at 357.

United States v. Marion, 404 U. S. 307, 321-322 (92 SC 455, 30 LE2d 468) (1971); accord Haisman v. State, 242 Ga. 896, 897 (2) (252 SE2d 397) (1979).

Id.

190 Ga. App. 301 (379 SE2d 11) (1989).

(Punctuation omitted.) Id. Accord United States v. Bottoms, 755 F2d 1349 (9th Cir. 1985); Crawford v. State, 669 NE2d 141, 148 (Ind. 1996); Taylor v. State, 582 S2d 152 (Fla. 1991); Locklear v. Commonwealth, 7 Va. App. 659 (376 SE2d 793) (1989); Blakey v. State, 232 Mont. 178 (755 P2d 1380) (1988).