How Long may a State Wait to Extradite a Prisoner in Another State?

Full question:

A client finished their sentence in Oregon with the exception of 3 yrs of supervised release where he was transferred on an interstate compact to VT. He's had 2 pos ua's in 15 months, but recently picked up a charge out of state for possession of pot. VT has sent him to prison to await extradition to OR. How long does Oregon have to get him and do you think they will spend the money to get him for violating supervised release? He has served his prison time in full.

• Category: Criminal
• Date: 04/07/2025
• State: Vermont

Answer:

I am unable to predict the likelihood of pursuing extradition. Generally, if the person is a repeat offender and/or the charge is more serious than a misdemeanor, the likelihood increases. The answer will depend in part on whether a detainer has been filed and whether the defendant
had "entered upon a term of imprisonment" in VT. A detainer on outstanding charges must be lodged at the institution where the defendant is being held in order to trigger the protections of the agreement on detainers (IAD) (see statute below). If the IAD doesn't apply, speedy trial rights may apply.

ORS 135.747 provides:

"If a defendant charged with a crime, whose trial has
not been postponed upon the application of the
defendant or by the consent of the defendant, is not
brought to trial within a reasonable period of time,
the court shall order the accusatory instrument to be
dismissed."

Determining whether a time period is "reasonable" requires an examination of all "attendant circumstances," which includes the reasons for the delay. The courts generally have concluded that state-caused delays to which a defendant has not consented of 15 months or more are
generally unreasonable and that delays of seven months or less are reasonable." However, this is not a bright-line test, and the analysis of the reasonableness of any delay necessitates consideration of the "attendant circumstances," which includes the reasons for the delay.

There is no statute of limitations, when a criminal crosses state lines...the statute tolls and tolls, and would only come into effect when the offender comes back into the state of jurisdiction...

Please see the following OR statutes to determine applicability:

135.791 Request for final disposition of detainer from prisoner
without state.

When the district attorney of any county shall have received written
notice from a prisoner in another state of the prisoner's request for
final disposition to be made of any untried accusatory instrument which
is the basis of a detainer against the prisoner, the district attorney
promptly shall give written notice to the Governor that such request has
been received. The notice to the Governor shall describe the charge
pending against the prisoner and shall recite the crime of which the
prisoner was convicted in the other state, the sentence imposed and the
date the sentence commenced, or so much of such information as may be
known to the district attorney. The notice to the Governor shall be
accompanied by a summary of the evidence against the prisoner on the
untried charge. Within 10 days after receiving the notice and summary of
evidence, the Governor shall send written direction to the district
attorney either to proceed with prosecution of the prisoner when the
prisoner is made available, or to move the court for dismissal of the
untried indictment, information or complaint and to remove the detainer
against the prisoner. The written direction may be signed by the
Governor or by a person authorized by the Governor to perform
extradition functions. The decision of the Governor shall be final, and
the district attorney shall act as so directed.

135.775 Agreement on Detainers.

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:

AGREEMENT ON DETAINERS

The contracting states solemnly agree that:

ARTICLE I

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 II

As 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 the prisoner initiates a request for final
disposition pursuant to Article III of this agreement or at the time
that a request for custody or availability is initiated pursuant to
Article IV of this agreement.

(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 of this agreement.

(d) "Department of Corrections institution" of this state shall mean
any institution operated by the Department of Corrections.

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, the
prisoner shall be brought to trial within 180 days after the prisoner
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 imprisonment and the request of the prisoner 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 the counsel of the prisoner 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) of this Article shall be given or sent by the prisoner
to the warden or other official having custody of the prisoner, who
shall promptly forward it together with the certificate to the
prosecuting official and court by registered or certified mail, return
receipt requested.

(c) The warden or other official having custody of the prisoner shall
promptly inform the prisoner of the source and contents of any detainer
lodged against the prisoner and shall also inform the prisoner of the
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) of this Article 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 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) of this Article 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) of this Article,
and a waiver of extradition to the receiving state to serve any sentence
there imposed upon the prisoner, after completion of the term of
imprisonment in the sending state. The request for final disposition
shall also constitute a consent by the prisoner to the production of the
body of the prisoner in any court where the presence of the prisoner 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 the execution of
the request for final disposition referred to in paragraph (a) of this
Article 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 the officer has lodged a detainer and who
is serving a term of imprisonment in any party state made available in
accordance with paragraph (a) of Article V 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: 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 30 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 the own motion of the governor or upon motion of the
prisoner.

(b) Upon receipt of the officer's written request as provided in
paragraph (a) of this Article, 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. Such 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 120 days of the arrival of the prisoner in the
receiving state, but for good cause shown in open court, the prisoner or
the counsel of the prisoner 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 the prisoner may have to contest the
legality of the delivery of the prisoner as provided in paragraph (a) of
this Article, 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 paragraph (e) of Article V 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 V

(a) In response to a request made under Article III or Article IV of
this agreement, 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 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 such prisoner, 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 of this agreement, 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 attendance of the prisoner at court and while being transported to
or from any place at which the presence of the prisoner 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 ad 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 contained in
this paragraph 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.

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 such 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 VII

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 VIII

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
the agreement. However, the withdrawal of any state shall not affect the
status of any proceedings already initiated by prisoners or by state
officers at the time such withdrawal takes effect, nor shall it affect
their rights in respect thereof.

ARTICLE IX

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 to this
agreement, 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.

135.793 Procedure where untried instrument pending against
prisoner without state.

Any officer of a jurisdiction in this state in which an untried
accusatory instrument is pending against a prisoner in another state,
and who desires to have the prisoner returned for trial, shall give
written notice and a summary of the evidence against the prisoner to the
Governor in the manner provided in ORS 135.791. The Governor shall,
within 10 days after receiving the notice and summary, send written
direction to such officer either approving or disapproving the return of
the prisoner. The direction by the Governor shall be final, and may be
signed as provided in ORS 135.791. The officer desiring return of a
prisoner shall not seek the court approval provided for in paragraph (a)
of Article IV of the Agreement on Detainers prior to receiving approval
by the Governor.

Please see the following OR case:

STATE v. COFFMAN, 59 Or. App. 18 (1982)
650 P.2d 144
STATE OF OREGON, Respondent, v. CARROL WAYNE COFFMAN, Appellant.
No. 20-949, CA A22221
Oregon Court of Appeals.
Submitted on record and briefs January 22, 1982.
Affirmed September 1, 1982.
Page 19

Appeal from Circuit Court, Tillamook County, Delbert B. Mayer, Judge.

Gary D. Babcock, Public Defender, and Ernest E. Estes, Deputy
Public Defender, Salem, filed the brief for appellant.

Dave Frohnmayer, Attorney General, William F. Gary, Solicitor
General, and Richard David Wasserman, Assistant Attorney
General, Salem, filed the brief for respondent.

Before Buttler, Presiding Judge, and Richardson and Warden,
Judges.

WARDEN, J.

Affirmed.
Page 20

WARDEN, J.

Defendant appeals his conviction for escape in the second
degree. ORS 162.155. He contends that he was denied the right
to a speedy trial under the Interstate Agreement on Detainers,
ORS 135.775, the Sixth Amendment to the United States
Constitution and Article I, Section 10 of the Oregon
Constitution.

On April 12, 1978, defendant escaped from the Tillamook
County prison camp where he was serving a sentence for robbery
in the second degree. On April 19, defendant was indicted for
escape in the second degree in Marion County,[fn1] and an arrest
warrant was issued. Sometime before April 26, defendant was
arrested in California and incarcerated in the Mendocino County
jail. The record does not show whether defendant was charged
with a crime in California or how long he spent in the county
jail. On April 26, 1978, the assistant records officer of the
Oregon State Penitentiary (OSP) sent a copy of the warrant for
defendant's arrest on the escape charge to the Mendocino County
sheriff's office with instructions to "file this as our
detainer and notify us when subject will be available for
pickup." The record is again silent on what proceedings there
may have been in California against defendant after this
correspondence, but he was transferred to the San Quentin State
Prison in California to commence serving a five year term of
imprisonment. On August 10, 1978, the assistant records officer
of OSP sent a letter, together with copies of orders committing
defendant to OSP, to San Quentin prison officials with
instructions to "file these as our detainer and notify us prior
to his discharge or parole."

One year later, on August 12, 1979, defendant signed
documents requesting disposition of outstanding charges against
him in Salem, pursuant to the Interstate Agreement on
Detainers. ORS 135.775. California prison officials did not
send the documents to the prosecuting officer in Oregon. On
January 13, 1981, 17 months after they were signed, the
documents were received at OSP.
Page 21
Defendant was returned to OSP on March 7, 1981, and a new
indictment, charging defendant with escape in the second
degree, was returned on May 19, 1981, in Tillamook County.[fn2] On
June 1, defendant moved to dismiss the charge on the ground of
lack of speedy trial. After a hearing on August 17, the motion
was denied, and on August 20, 1981, defendant was found guilty
of escape in the second degree after trial to the court on
stipulated facts. He was sentenced to a term of imprisonment of
one year to be served concurrently with the sentence he was
serving.

Defendant first contends that his right to a speedy
resolution of the escape charge under the Interstate Agreement
on Detainers was violated. The pertinent language of ORS
135.775 is found in Article III, which provides:

"(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 180
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 * * *."
(Emphasis added.)

We have held that a detainer on outstanding charges must be
lodged at the institution where the defendant is being held in
order to trigger the protections of the agreement on detainers.
State v. Hibdon, 36 Or. App. 97, 102, 583 P.2d 579 (1978); State
v. Puckett, 22 Or. App. 154, 157, 538 P.2d 74 (1975).

In his memorandum filed August 5, 1981, and relied on at
the August 17 hearing on the motion to dismiss, defendant
conceded:

"* * * The only Oregon detainer which was on
file at San Quentin State Prison, involved the
unfinished
Page 22
sentence at Oregon State Penitentiary.
Technically, that detainer did not involve an
untried indictment, information, or complaint.
Thus, the detainer necessary to trigger the
interstate compact was never filed."

On appeal, defendant contends that the two "detainers" that
were filed at the request of the OSP records officer should be
considered by this court as triggering the provisions of the
agreement. However, the papers that the OSP records officer
sent to the Mendocino County sheriff were not effective as a
detainer, because there is nothing in the record that defendant
had "entered upon a term of imprisonment" in the Mendocino
County jail; those sent to San Quentin did not operate as a
detainer, because they were not based on an untried indictment,
information or complaint. ORS 135.775, Article III. Moreover,
as contemplated by the agreement, the appropriate officer to
lodge a detainer against a prisoner is a prosecutor or law
enforcement officer. See United States v. Mauro, 436 U.S. 340,
358, 98 S Ct 1834, 56 L Ed 2d 329 (1978). Because no detainer
against defendant was ever filed, the interstate agreement did
not become operative, and the state was not bound by its
provisions. We acknowledge that being able to cause prisoners
to be held without filing detainers may allow prosecuting
officials to frustrate the purposes[fn3] of the agreement by waiting
until a prisoner is about to be released from the other state's
custody before filing a detainer.[fn4] A prisoner's only remedy in
such a situation is to move for
Page 23
dismissal of the charges on constitutional grounds for lack of
speedy trial.

Defendant here claims that his constitutional right to a
speedy trial was violated. The Supreme Court in Barker v.
Wingo, 407 U.S. 514, 92 S Ct 2182, 33 L Ed 2d 101 (1972), set out
the four factors to be considered in assessing an alleged
constitutional violation of a defendant's right to speedy
trial: the length of the delay, the reason for the delay,
defendant's assertion of his right and prejudice to the
defendant. We apply the same factors in determining defendant's
right to a speedy trial under Oregon's Constitution. State v.
Ivory, 278 Or. 499, 504, 564 P.2d 1039 (1979).

In the present case, the state concedes that the length
of delay, approximately three and one-half years, is sufficient
to trigger an analysis of the other three factors. It is also
conceded by the state that defendant's request for disposition
of outstanding charges on August 12, 1979, was a timely
assertion of his right. The reason for the delay must be
charged partially to defendant for fleeing to California. See
State v. Miebach, 52 Or. App. 709, 718, 629 P.2d 1312, rev den
291 Or. 771 (1981). The remaining delay of approximately three years
is chargeable to the state for lack of due diligence in
bringing defendant to trial. The prosecution is not relieved of
a duty to provide defendant with a speedy trial just because
defendant is in custody elsewhere. United States v. Mauro,
supra, 436 US at 358. The August 10, 1978, letter from OSP to
San Quentin is evidence that the state knew where defendant was
incarcerated. Defendant was not returned for trial in Oregon on
the escape charge until March, 1981. Where due diligence could
have eliminated the delay, it must be charged to the state.

The last factor to be considered is whether there is a
reasonable possibility that defendant was prejudiced by the
delay. State v. Ivory, supra, 278 Or at 507. At the hearing on
the motion to dismiss, defendant conceded that he had suffered
no particular prejudice to his defense from the delay. Instead,
defendant urged the trial court to find prejudice in the fact
that the failure of the state to lodge a detainer against him
foreclosed him from obtaining the
Page 24
protection of the Interstate Agreement on Detainers.[fn5] His
argument presupposes that he has a right to have a detainer
filed or, to put it another way, that the state, because it had
an untried indictment pending against him, was required to file
a detainer. Neither the constitution nor the interstate
agreement contains such a requirement. We will not create one
in order to find a possibility of prejudice to defendant.

Affirmed.

[fn1] The Marion County indictment, charging defendant with escape
from a correctional facility, ORS 162.155(1)(c), was based on
the theory that, while confined in the prison camp, defendant
was constructively confined in the Oregon State Penitentiary in
Marion County.

[fn2] Under our holding in State v. Dillenburg, 49 Or. App. 911,
621 P.2d 1193 (1980), the Marion County indictment was subject to
challenge for improper venue.

[fn3] The purpose of the agreement on detainers is set out in ORS
135.775, Article I:

"The party states find that charges outstanding against a
prisoner, detainers based or 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."

[fn4] See Note, Convicts — The Right to a Speedy Trial and the New
Detainer Statutes, 18 Rutgers L Rev, 828, 859 (1964); see also
U S Dep't of Justice, The Law of Detainers, p 10 (1973).

[fn5] Defendant also contends that the delay affected his parole
possibilities and impaired his rehabilitation. This contention
is raised for the first time on appeal, and we will not
consider it. State v. Green, 49 Or. App. 949, 621 P.2d 67 (1980).