dissenting.
The majority concludes that, under the Interstate Agreement on Detainers ("IAD"), a defendant who requests a transfer back to the sending state on a one-time basis and for the limited purpose of securing the counsel of his choosing, thereby waives any violations of the IAD arising from transfers prior to the requested transfer. Maj. op. at 663, 665-66, 667. Moreover, the majority concludes that, after a waiver as to a single transfer has been made, the defendant may thereafter be shuttled back and forth between the receiving and sending states indefinitely, even though the defendant has neither requested nor consented to these subsequent transfers. Maj. op. at 668, 665-66. The majority also concludes that when a defendant's motion to continue the trial is granted by the trial court in the receiving state, the defendant waives, both retroactively and prospectively, his rights, not only under the speedy trial provision of article IV of the IAD, but under the no return provision of that article as well. Maj. op. at 666-67.
The majority introduces the concept of retroactive waiver into the IAD for the first time. Cases of other jurisdictions construing the IAD do not support this new concept. The majority concludes that the types of defendant conduct constituting a waiver of the protections of article IV, the right to trial within 120 days after arrival in the receiving jurisdiction and the right not to be returned to the sending state before trial on the outstanding charges, are identical. This conclusion conflates the distinct nature of these two rights. Finally, the majority contravenes the express statutory command of article IX of the IAD that the "agreement shall be construed liberally so as to effectuate its purposes." The purposes of the no return provision include: (1) encouraging expedited resolution of outstanding charges against the prisoner by requiring that the receiving state bear the expense of housing the prisoner prior to trial, and (2) protecting the prisoner from prosecutorial abuse of the simplified detainer system by lodging groundless and bad-faith detainers.
Recently, the United States Supreme Court held that article IV(e) is to be interpreted strictly and literally to require dismissal of criminal charges when a prisoner's right of no return is violated. Alabama v. Bozeman, 533 U.S. 146, 155, 121 S.Ct. 2079, 150 L.Ed.2d 188 (2001) (holding that no de minimis exception to article IV (e) exists, and, therefore, a transfer for even one day violates the agreement). Although this is a relatively new case and Congress may change this construction of article IV(e), I feel compelled to apply the Court's mandate and respectfully dissent.
1.
The IAD creates uniform procedures for lodging and executing detainers. Bozeman, 583 U.S. at 146, 121 S.Ct. 2079. A detainer is a legal order that requires a state to hold a currently imprisoned individual when he has finished serving his sentence so that another state may try him for a different crime. Id. "The Agreement attempts to remedy the disadvantages and hardships imposed upon prisoners attendant with the use of detainers and to eliminate potential abuses of the detainer system." United States v. Dixon, 592 F.2d 329, 333 (6th Cir.1979). The central provisions of the IAD are articles III and IV. Id. at 334. Article III sets forth the procedure by which a prisoner against whom a detainer has been lodged can demand speedy disposition of the charges giving rise to the detain-er. Id. Article IV provides a means by which a prosecutor who has lodged a detainer against a prisoner in another jurisdiction can secure temporary custody of that prisoner for the disposition of outstanding charges. Id.
Article IV of the IAD grants two separate rights to a prisoner of one state against whom a detainer is lodged by another state. § 24-60-501, art. IV, C.R.S. (2008). These rights are triggered by the charging jurisdiction's request for temporary custody of the prisoner for the purpose of resolving the charges pending against him. Id. Article IV(c) provides that "trial shall be commenced within one hundred twenty days of the arriv*669al of the prisoner in the receiving state." Article IV(e), referred to by the Supreme Court as the "no return provision," grants a different right to the prisoner:
If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's return 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.
It is article IV(e), the no return provision, that is in issue in this case, and not article TV(e)'s speedy trial provision.
Also relevant to the disposition of this case is article IX, which provides that the "agreement shall be construed liberally so as to effectuate its purposes." The IAD is a federal law subject to federal construction, and we are bound by the decisions of the United States Supreme Court. Bozeman, 533 U.S. at 149, 121 S.Ct. 2079.
With this background in mind, I review some of the facts relevant to this case.
IL.
The record reveals that, while the defendant was transferred from state custody to federal custody six times, only one of those transfers was made at his request. Most importantly, the defendant made his requests for this particular transfer solely for the purpose of contacting his attorney in another state. His request for transfer was necessitated by the jail's failure to obey the trial court's order directing the jail staff to allow the defendant phone access to retain counsel. On November 1, 2002, however, counsel was appointed to represent the defendant, and, therefore, he made no further requests to be returned to the federal penitentiary in Florence, Colorado ("USP-Florence") after that date. Nonetheless, the trial court transferred the defendant four more times after November 1. Moreover, the very first transfer of the defendant from state custody back to federal custody occurred on August 28, 2002, before the defendant's first request for a transfer on September 27, 2002. Thus, as the facts establish, the defendant was transferred five times despite not having requested those transfers.
After sentencing on federal criminal charges, the defendant was incarcerated at USP-Florence. While the defendant was serving his federal sentence, Arapahoe County lodged a detainer with federal authorities against him. Because the defendant was serving his federal sentence at the time it was lodged, the protections of the IAD were triggered.
The defendant was first transported to Arapahoe County on August 27, 2002, one day before his first appearance in district court. At this hearing, the defendant requested a trial continuance, which the court granted, but he did not ask to be remanded to USP-Florence. The trial court nevertheless remanded the defendant to USP-Florence.
Approximately one month later, the defendant was again transported to Arapahoe County on September 25, 2002, for appearances in district court on September 27, October 1, and October 8. At the first of these appearances, the defendant stated that he had been unable to contact his New Mexico attorney because the Arapahoe County jail did not have long distance service. He requested return to USP-Florence, so that he would be able to call the New Mexico attorney. The court denied this request. Instead, the court ordered the district attorney to call the New Mexico attorney to be sure that he intended to represent the defendant. The court further directed the sheriff to advise the jail staff to expect a call from New Mexico and to allow the defendant to receive the call.
At the next appearance, on October 1, 2002, the defendant requested transfer back to USP-Florence because the county jail was not permitting him to make phone calls freely. Onee again, this request was denied, but the trial judge ordered that the defendant be permitted to make local phone calls in order to obtain local counsel. Finally, on October 3, the defendant informed the court that he was still not being permitted to make local phone calls, and that the jail was not complying with the court's earlier order of October *6701. At this hearing, the sheriff explained that a mistake had been made and the defendant had inadvertently been denied phone access. The defendant reiterated his request to be transferred to USP-Florence for the purpose of retaining counsel. The trial court granted the request and the defendant was remanded to USP-Florence on October 6, 2002.
The defendant was transferred back to Arapahoe County in late October and, at a hearing on November 1, 2002, the trial court appointed the public defender to represent the defendant after determining that private counsel was not forthcoming. The public defender purported to revoke all prior waivers of rights made by the defendant. At this point, because retaining private counsel was no longer an issue, the defendant made no further requests for transfer.
Nevertheless, the defendant was returned to USP-Florence four additional times over a period of twenty three months. He was transferred from state to federal custody on November 5, 2002. Again, four months later, on March 4, 2008, he was transferred to state custody and returned to USP-Florence. Again, a month and a half later, he was transferred from state to federal custody on May 14, 2008. And again, almost seventeen months later, he was transferred back to USP-Florence on October 7, 2004. This last transfer occurred after the defendant objected to further transfer by filing his first motion to dismiss the charges for violation of his rights under the IAD; apparently, this transfer occurred as the result of an "administrative error." None of these four most recent transfers benefited the defendant in any way. They were not made for the purpose of allowing the defendant to obtain counsel or to enable him to prepare for trial.
IIL
A defendant may waive his rights under the IAD because the agreement's protections exist for his benefit. See New York v. Hill, 528 U.S. 110, 116, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (quoting Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 704, 65 S.Ct. 895, 89 L.Ed. 1296 (1945); State v. Vinson, 182 S.W.3d 709, 712 (Mo.Ct.App.2006)("The [no return provision] ... is thus for [the defendant's] benefit and is waivable."). Courts have generally agreed that waiver occurs under the IAD when the prisoner requests to be treated in a manner inconsistent with the protections of the particular provision of the agreement at issue. Hill, 528 U.S. at 114, 120 S.Ct. 659 (collecting cases). In the context of the no return provision, a request by the prisoner to be transferred back to the sending state has been held repeatedly to be the type of "inconsistent" conduct that constitutes waiver. See, eg., Webb v. Keohane, 804 F.2d 413, 415 (7th Cir.1986); U.S. v. Black, 609 F.2d 1330, 1334 (9th Cir.1979); United States v. Eaddy, 595 F.2d 341, 344 (6th Cir.1979); Vinson, 182 S.W.3d at 712; State v. Hill, 638 So.2d 1376, 1379-80 (Ala.Crim.App.1993); People v. Browning, 104 Mich.App. 741, 306 NW.2d 326, 334-35 (1981). The Supreme Court has suggested that a receiving state might be permitted to transfer a prisoner back to the sending state before trial "when it would be mutually advantageous and the prisoner accordingly waives his rights under Article IV(e)." Bozeman, 533 U.S. at 157, 121 S.Ct. 2079. However, when a transfer back to the sending state before trial occurs and is neither requested by the prisoner nor made for his benefit, the IAD requires dismissal of the charges. Id. at 155-56, 121 S.Ct. 2079; Browning 306 N.W.2d at 335 ("Where the transfer back is not done at the request of defendant or his attorney, we believe that the state should be charged with the responsibility therefore.").
In this case, the defendant was returned from state custody to federal custody five separate times without his consent, express or implied. The defendant's request to be remanded to USP-Florence was for the limited purpose of retaining counsel because he was denied the ability to communicate with counsel by the receiving state, Colorado. This request came after the initial transfer on August 27, 2002, which was made, again, at the trial court's initiative, not the defendant's. After the appointment of counsel, he was transferred four additional times over a period of twenty-three months. As of November 1, 2002, the defendant's need to retain counsel was no longer a concern and so *671the four transfers that occurred after that date were made neither for the defendant's benefit nor at his request. Indeed, the record discloses that the most recent of these transfers, which occurred almost two years after the appointment of counsel, was made as the result of an "administrative error." Our lower courts have held, and I agree, that "the purpose of the [IAD] requires that the adverse consequences of official oversights be visited upon the prosecution, not upon the prisoner." People v. Lincoln, 42 Colo.App. 512, 601 P.2d 641, 644 (1979).
The majority holds that the first transfer, which occurred on August 27, 2002, did not violate the IAD because the defendant waived his right to challenge this particular transfer. The defendant did not request the transfer, nor does the record indicate any ostensible benefit which acerued to the defendant as a result of the transfer. It is unclear to me precisely what conduct the majority argues constituted a waiver of this first violation: the defendant's subsequent request for transfer, which was not made until one month after this transfer, maj. op. at 665-66, 666, 667, or his request for a continuance of the trial made at that first hearing, maj. op. at 666-67. I therefore address each of these arguments below.
A.
With respect to the retroactive theory of waiver, the majority concludes that the defendant's requests for transfer, which occurred later in time, on September 27, October 1 and October 3, effectively waived his unilateral transfer on August 27, even though he made no request for transfer at that time. The majority fails to cite any authority for the proposition that a violation of the IAD may be waived retroactively, that is, after the violation has already occurred. Maj. op at 665-66, 666, 667.
There exists, however, authority for the contrary proposition, at least in the context of article III's speedy trial provision. Monroe v. State, 978 So.2d 177, 183 (Fla.Dist.Ct.App.2007); State v. Smith, 686 SW.2d 543, 549 (Mo.Ct.App.1985); State v. Mason, 90 N.J.Super. 464, 218 A.2d 158, 163 (App.Div.1966); Commonwealth v. Mayle, 780 A.2d 677, 683 (Pa.Super.Ct.2001). In these cases, the various jurisdictions held that a defendant could not validly waive his rights under the IAD after the statute's speedy trial time had expired. In Monroe, for example, the court held that, even though the defendant had expressly agreed to waive his speedy trial rights on various occasions, he was entitled to discharge since these "waivers" were made after the 180-day period had expired and the violation had already occurred. 978 So.2d at 188. Thus, the case law indicates that courts have been unwilling to recognize retroactive waivers of speedy trial rights under the IAD.
I can find no compelling reason to reject this trend in the context of the right of no return under article IV(e). While, as I explain below, I recognize that speedy trial and no return rights should not be conflated in terms of the conduct required to waive each, the inconsistent conduct analysis of Hill provides no basis for holding that retroactive waiver is inconsistent with speedy trial rights but consistent with no return rights. Therefore, I conclude that the defendant's subsequent request to transfer back to the sending state could not remedy the first violation of IV (e) that occurred here.
B.
The majority also states that, "arguably," the defendant acted inconsistently with the no return protection of article IV(e) by moving for a trial continuance which was granted, and therefore waived his right not to be returned to the sending state before trial. Maj. op. at 666-67. This holding conflates the concept of waiver under the no return provision, IV(e), with waiver under the speedy trial provision, IV(c).
While it is true that rights under the IAD may be waived, "[wlhat suffices for waiver depends on the nature of the right at issue." Hill, 528 U.S. at 114, 120 S.Ct. 659. As mentioned, other jurisdictions have held that IAD rights may be waived if the defendant takes actions inconsistent with the particular right. Id. (collecting cases). This formulation has been cited with approval by the Supreme Court. Id. Under Hill, the particu*672lar type of conduct that will be "inconsistent" will depend on the nature of the right at issue.
In the context of the speedy trial provision of IV(c), the particular inconsistent conduct giving rise to waiver has been held to include a defendant's motion for a continuance of the trial. Reed v. Farley, 512 U.S. 339, 353, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994); see also Hill, 528 U.S. at 115, 120 S.Ct. 659 (finding waiver in the context of article III's 180-day speedy trial requirement). This rule makes sense. Requesting that trial be delayed is logically inconsistent with demanding that it occur speedily and within the statutory time frame. As mentioned, other jurisdictions have held that a defendant may waive his rights under IV(e)'s no return provision by requesting a transfer to the sending state. Again, these actions are logically inconsistent with the protections afforded by the specific provision: a request to be transferred is inconsistent with the right not to be transferred.1
The majority conflates these two provisions, articles IV (c) and IV(e), and the kinds of conduct required to waive their protections. It holds that a defendant who requests a continuance, conduct that is not inconsistent with the right granted by IV(e) to remain in the receiving state, waives not only his speedy trial rights, but his no return rights as well. While requesting a continuance is inconsistent with the speedy trial rights of the IAD, nothing in the nature of the request for a trial continuance itself is inconsistent with the right to remain in the receiving state until trial.
The majority finds support for the proposition that a waiver of article IV(c) speedy trial rights constitutes a waiver of article IV (e) no return rights by relying upon dictum in Boze-man that cites Hill, which addressed speedy trial rights under article III:
Although we reject Alabama's interpretation of the Agreement, our decision does not bar a receiving State from returning a prisoner when it would be mutually advantageous and the prisoner accordingly waives his rights under Article IV(e) Cf. Hill, 528 U.S. at 114-115[, 120 S.Ct. 659] (holding that a defendant may waive his rights under Art. III of the Agreement).
533 U.S. at 157, 121 S.Ct. 2079 (emphasis added). The majority argues that by citing Hill in the context of a general discussion of waiver, Bozeman analogizes the manner in which no return rights may be waived to the manner in which speedy trial rights under article IV may be waived. Maj. op at 667. I disagree that this statement in Bozeman and reference to Hill analogizes waivers of article IV (c) rights to waivers of article IV (e) rights. Hill, an article III case, is cited in Bozeman for the general proposition that IAD rights may be waived by inconsistent conduct, and not for the proposition that the manner in which no return rights and speedy trial rights are waived is identical. Id. To the contrary, Hill states that "[wlhat suffices for waiver depends on the nature of the right at issue." 528 U.S. at 114, 120 S.Ct. 659. Hence, the majority's construction of the manner in which the two distinct article IV rights may be waived, that the waiver of one also waives the other, contravenes the only case it relies on for support.
IV.
I now turn to the four transfers that occurred after November 1, 2002, after counsel *673was appointed to represent the defendant. The majority exeuses these violations of article IV(e) of the IAD by holding, without citing authority, that the defendant's request for a transfer for the limited purpose of securing the counsel of his choosing acted as an absolute waiver of his right to refuse all subsequent non-consensual transfers, irrespective of how many times these transfers might occur. Maj. op. at 663, 665-66. Here, the majority holds that the waiver lasted for over two years.
The majority's decision allows a waiver made on a one-time basis and for a limited purpose to continue indefinitely, for the lifetime of pre-trial proceedings. It holds that a limited, one-time waiver excuses all transfers, whether consensual or not, for potential ly years on end. This contravenes the purposes of the IAD as stated by the Supreme Court and the various federal cireuit courts of appeal, and violates article IX's command that the "agreement shall be construed liberally so as to effectuate its purposes."
The majority suggests that the purposes for which Congress enacted the no return provision of article IV(e) are unclear. Mj. op. at 665. I disagree. The Supreme Court and several federal circuit courts of appeal have articulated at least two purposes of Article IV(e) with which the majority's holding is at odds: (1) encouraging expedited resolution of outstanding charges against the prisoner by requiring that the receiving state bear the expense of housing the prisoner prior to trial; and (2) protecting the prisoner from prosecutorial abuse of the simplified detainer system by lodging groundless and bad-faith detainers. Bozeman, 533 U.S. at 154, 121 S.Ct. 2079; Dixon, 592 F.2d at 336.
In Bozeman, the Court explained that "the purpose of the 'no return' provision cannot be . a simple, direct effort to prevent the interruption of rehabilitation." 533 U.S. at 154, 121 S.Ct. 2079. Instead,
[tlhe agreement not only prevents "return," but it also requires the receiving State to pay for the prisoner's incarceration in that State during the period prior to trial ... That requirement may provide the receiving State with an incentive to shorten the pretrial period-to proceed to 6 trial faster than 120 days or not to seek extensions-thus disposing of detainers, and the attendant "uncertainties which obstruct programs of prisoner treatment and rehabilitation," in the most "expeditious" manner.
Id. at 155, 121 S.Ct. 2079 (quoting 18 U.S.C.A. § 2 art. I). If the receiving state could use a one-time request for transfer as an exeuse to shuttle the prisoner back and forth to the sending state indefinitely, then the state would be able to cireumvent one of the primary purposes of article IV(e): encouraging expeditious resolution of pending charges by requiring the receiving state to bear the expense of housing the prisoner. This is precisely what happened here. By transferring the defendant back to USP-Florence on these four occasions, Colorado saved itself the expense of housing the defendant for non-trivial periods of time during an extensive pretrial period.
Dizon illustrates another purpose Congress had in mind when it adopted IV(e): preventing prosecutorial abuse of the IAD's simplified detainer system. 592 F.2d at 336. Again, IV(e) forces the receiving state to bear the burden of housing the prisoner prior to trial in order to achieve its aims, which, as Dixon points out, include discouraging the lodging of frivolous or bad faith detainers. To treat a request for a one-time transfer as a license to prosecutors to transfer prisoners without restraint effectively bypasses the financial deterrent on prosecutorial misconduct article IV(e) was designed to impose.
Finally, the majority claims that nothing in the statute suggests that a defendant's IV(e) right not to be transferred to the sending state prior to trial "springs back into effect each time he is returned to that state for further proceedings in the same prosecution." Maj. op. at 665-66. There appears to be no authority directly on point either way. However, the few jurisdictions that have even obliquely addressed this issue have all indicated a willingness to treat each transfer separately. See, e.g., Black, 609 F.2d at 1334 (defendant alleged that the government violated the IAD's no return provisions; the court noted that the defendant was returned to the sending state's eustody on three sepa*674rate occasions, but that "[oln each occasion he requested the return."). Likewise, the Supreme Court suggested as much in Boze-man: "[EJvery prisoner arrival in the receiving State, whether followed by a very brief stay or a very long stay in the receiving State, triggers IV(e)'s 'no return' requirement." 533 U.S. at 154, 121 S.Ct. 2079 (emphasis in original).
I am authorized to state Chief Justice MULLARKEY and Justice MARTINEZ join in this dissent.
. This reasoning has been echoed by other courts, and most explicitly by Browning, 306 N.W.2d at 335. Citing Eaddy, 595 F.2d at 344, and Gray v. Benson, 443 F.Supp. 1284 (D.Kan. 1978), Browning examined the concept of waiver in the article IV context and distinguished the manner in which the separate and distinct speedy trial and no return rights might be waived:
[It is not difficult to accept that the right to trial before return might be waived by a prisoner whose priorities require a return before trial. Similarly, the right to trial within a certain number of days may likewise be waived, for reasons which are similarly high on the prisoner's priorities. Certainly, our own 180-day rule may be impliedly waived by the defendant if the case stands ready for trial within that time, but the "defendant's delaying motions" cause a sufficient delay to preclude trial from commencing before the end of that period.
306 N.W.2d at 335 (internal citations omitted). Significantly, the Browning court concluded that the fact that the defendant had waived his speedy trial rights under article III and under article IV(c) was not determinative of whether he had waived his article IV(e) no return rights. Id.