                                                  No.    88-89

                    I N THE SUPREME COURT O F THE STATE O F MONTANA

                                                     1988




STATE O F MONTANA,

                      P l a i n t i f f and A p p e l l a n t ,
          -VS-

TIMOTHY JOHN CAMPBELL,

                      D e f e n d a n t and R e s p o n d e n t .




A P P E A L FROM:     D i s t r i c t C o u r t of t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
                      I n and f o r t h e C o u n t y of G a l l a t i n ,
                      T h e H o n o r a b l e T h o m a s O l s o n , Judge p r e s i d i n g .

COUNSEL O F RECORD:

          For A p p e l l a n t :

                      Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
                      Barb Claassen, Asst. Atty. General, Helena
                      A . Michael S a l v a g n i , C o u n t y A t t o r n e y , B o z e m a n , M o n t a n a
                      Marty L a m b e r t , D e p u t y C o u n t y A t t y . , B o z e m a n

          For R e s p o n d e n t :

                      L a r r y Jent, Rozeman, Montana




                                                     S u b m i t t e d on B r i e f s :    June 2 2 ,      1988

                                                         Decided,:          September 12,           1988




                                                     Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

      The State of Montana (State), appeals an order of the
Eighteenth   Judicial   District    Court, Gallatin   County,
dismissing a fugitive warrant issued on Timothy Campbell
(Campbell), defendant/respondent, and the court's quashing of
a writ of extradition. We reverse.
      The issue presented by the State is whether the
District   Court   improperly    dismissed  the   extradition
proceedings?
      A stipulation of facts is attached to the State's
brief. According to this stipulation, Campbell was charged
in the Eighteenth Judicial District Court on a "Complaint for
Fugitive Warrant" on September 11, 1987.     The complaint
stated Campbell was charged in the state of Wisconsin with
feloniously and intentionally failing to return rented
personal property.   Campbell made an initial appearance on
September 14, 1987, posted bail and was released. Campbell
was advised of his rights to petition the court for a writ of
habeas corpus and to refuse to waive extradition to
Wisconsin.    Campbell refused to waive extradition at that
time .
       On October 16, 1987, a 30-day extension was granted by
the District Court because the necessary extradition papers
had not yet been processed.     The Governor of the State of
Montana signed a Governor's Warrant for extradition on
October 30, 1987, commanding that Campbell be apprehended on
the original theft charges and additional charges of carrying
a concealed weapon, reckless use of a weapon, and possession
of tetrahydrocannabinol.
      On November 16, 1987, Campbell and his attorney
appeared at the hearing held pursuant to the 30-day extension
granted October 16, 1987.   The District Judge directed that
the Governor's Warrant be served on the defendant and that
the State of Wisconsin pick him up no later than one week
from that date. The record reflects the following: that the
Governor's Warrant was served upon the defendant at the
November 16 hearing in compliance with the court's order;
that Campbell was allowed to remain free on bail; and, the
sheriff's return of service of the warrant was filed with the
clerk.
       Paragraph seven of the stipulation of facts states:
            Defense counsel  ...   was out of town
            during the week of November 22 through
            29, 1987.    Because the defendant was
            released on bail, the Gallatin County
            Sheriff 's office did    not know the
            whereabouts of the defendant.   [Defense
            counsel's] secretary would not divulge
            the defendant's address to the sheriff's
            office.
          Upon being - - - told that the defendant was
          not - custody, - - - Gallatin
          -      in             and that the
          C o u n t ~ Sheriff could - suarantee that
                                    not
          the defendant would a ~ ~ e a ; November
          -                       A
                                  .
                                           on
          23, - - the Wisconsin authoFities sent
          -     1987,
          no one to Montana to pick 9 -
          - - -                                    the
          defendant  ..      . (~mwhazs  added. )
The above time sequence is important because on November 16,
1987, the District Court stated Campbell had to be extradited
by the Wisconsin authorities within a week.
      At a November 23, 1987 meeting in the District Court
chambers, acting defense counsel, since regular counsel was
unavailable, made a motion to dismiss the proceedings. The
court denied the motion.    Nonetheless, the District Court
informed the parties that the states of Montana and Wisconsin
would have one more opportunity to extradite Campbell and
that it would dismiss the extradition proceedings and
Campbell would be released if extradition was not completed.
The District Court did not state a specific time limit. On
December 14, 1987, the County Attorney     sent a letter to
defense counsel which stated:
           The Sheriff has made arrangements with
           agents from the State of Wisconsin
           concerning Campbell.       The Wisconsin
           authorities will be here on Wednesday,
           December 30, 1987, at 10:OO a.m., to take
           Campbell into custody.
          If you are still in contact with
          Campbell, please advise him concerning
          this date.   If you are not in contact
          with Campbell, please advise the court so
          that other arrangements can be made.
           I trust that no further arrangements
           concerning this extradition will be
           necessary.
      On December 29, 1987, Campbell formally moved the court
for an order dismissing the fugitive warrant on grounds that
the statutory time limit had expired pursuant to § 46-30-304,
MCA.   On December 30, 1987, Campbell again appeared before
the court. On this date a police officer from Wisconsin was
present in the courtroom for the purpose of returning
Campbell to Wisconsin.      However, rather than releasing
Campbell to the Wisconsin authorities, the court made the
following statement:
           THE COURT: Well, I don't know if I've
           got the authority to do it, but I'm going
           to dismiss the matter and discharge the
           Defendant    and  quash   the   writ   of
           extradition on the basis that the State
           of Montana and the State of Wisconsin
           have consistently failed to comply with
           Court orders about getting this Defendant
           out of here.
           For example, on September 14, 1987, I
           gave the State 30 days within which to
           extradite the Defendant.       They came
           before me on October 16 and had not
           extradited him.   I gave them another 30
           days. On November 16 they came before me
           and still had not extradited him. I gave
           them 7 days to get him out of here, and
           it's December 30 now. They still haven't
           extradited him.
           You can take this matter up to the
           Supreme Court    and   get   a writ    of
           supervisory control or whatever you think
           empowers the States of Montana and
           Wisconsin to jack a defendant around like
           this.
           Let him go.
The District Court also ordered exoneration of Campbell's
bail.
      The District Court made no findings of fact or
conclusions of law and from the bench dismissed the matter,
discharged   the  defendant,  and   quashed  the writ    of
extradition. It is from this ruling that the State appeals.
The State timely filed a notice of appeal on January 13,
1988.   The State requests this Court reverse the District
Court and declare the Governor's Warrant effective.
      The State contends the District Court was required to
honor the Governor's Warrant once it was issued under the
Uniform Criminal Extradition Act.      Section 46-30-101, et
seq., MCA. The State claims Campbell was not arrested on the
Governor's Warrant and therefore no time limitation ever
began to run. Campbell's claim is that he was not extradited
within the time period prescribed in § 46-30-304, MCA. This
section, read along with S 46-30-302, MCA, allows a 90-day
time period that a party may be held in custody or on bond
prior to discharge and a release from bail.
      This 90-day limit was addressed by this Court in
Petition of Blackburn (Mont. 1985), 701 P.2d 715, 42 St.Rep.
525. In Blackburn, petitioner argued that Part 3 of Chapter
30, Title 46, MCA, imposed time limits on the issuance of the
Governor's Warrant.    We held "the 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"   and that   "   [tlhese sections do
not require dismissal of extradition proceedings for any
supposed time limits on issuance of the Governor's Warrant."
Blackburn, 701 P.2d at 719.
      Campbell claims he was arrested on the Governor's
Warrant on November 16, 1987, when he was served with the
document at the hearing. Campbell therefore argues that the
issue before this Court should be whether the District Court
could release Campbell because the state of Wisconsin failed
to physically transport him back to Wisconsin.      Campbell
claims Article    IV, Section 2 of the United States
Constitution controls in this instance. Campbell is correct
that this section is applicable as it states:
           A person charged in any State with
           Treason, Felony, or other Crime, who
           shall flee from Justice, and be found in
           another State, shall on demand of the
           executive Authority of the State from
           which he fled, be delivered up to be
           removed to the State having Jurisdiction
           of the Crime.

U.S.Const. art. IV, § 2.
      Campbell argues he should have been released because
the Wisconsin authorities did not pick him up within 30 days
after the Governor's Warrant was served upon him and he
became "arrested."    He claims the controlling federal law
under 18 U.S.C. cS. 3182 mandates that "[ilf no such agent
appears within thirty days from the time of the arrest, the
prisoner may be discharged."   (Emphasis added.) Therefore,
Campbell claims, the District Court had the jurisdiction and
authority to dismiss this case.    We disagree.    The court
could discharge Campbell, if he was detained, or release him
from bail in this instance, but the 30-day provision does not
allow dismissal of the proceedings nor does it grant the
court the ability to quash a writ of extradition.
      Campbell recognizes that the authority is split as to
whether the 30-day provision of 18 U.S.C. 5 3182 is mandatory
or provisional.   See generally, Long v. Cauthron (Ark.App.
1987), 731 S.W.2d 792; State v. Paskowski (Tenn.Cr.App.
1983), 647 S.W.2d 238; People v. Superior Court (Lopez) (Cal.
1982), 182 Cal.Rptr. 132 (cases holding the 30-day limit in
18 U.S.C. 5 3182 is discretionary and not a mandatory "may
discharge" on the court), and contra, Hill v. Roberts (1978),
359 So.2d 911 (case holding word "may" in provision of 18
U.S.C. 5 3182 is mandatory, although the 30-day period is
tolled for any delay attributable to fugitive).
      In this instance, Campbell claims none of the delay is
attributable to him.    We note, nonetheless, that Campbell
could not be located on November 23, 1987 and it was because
of this inability that the Gallatin County Sheriff informed
the Wisconsin authorities not to come to Montana.   To some
extent, this delay can therefore be attributed to Campbell.
      A district courts' power of inquiry with regard to
extradition proceedings is limited. The court can determine
whether the documents are in order on their face; whether the
petitioner was charged with a crime in the demanding state;
whether petitioner is the person named in the extradition
request; and whether petitioner is a fugitive.     Blackburn,
701 P.2d at 717.
      Here, the District Court summarily dismissed the
extradition proceedings.  The case of Carter v. Coleman
(Fla.App. 1984), 443 So.2d 491, is instructive in this
instance.   The Carter court stated:
            [Dlismissal of the entire proceeding [is]
            improper since the authority to honor or
            reject an extradition demand lies solely
            with the Governor . . .        (Citations
            omitted. )
          [Wle construe the language in the trial
          court's order to mean that the trial
          court .  . . intended only to dismiss its
          own court proceedings and to discharge
          the fugitive warrant and bail bond which
          it had issued therein. Such a discharge
          from bond or custody does not mean
          dismissal of all extradition proceedings.
          Thus, appellant's rearrest on a valid
          Governor's warrant issued after such
          discharge is not barred.         (Citation
          omitted. )
Carter, 443 So.2d at 492-493.
      The Governor's Warrant was legally effective on
December 30, 1987, even though the 30-day limit had expired.
      Our holding today is in accord with numerous states
which have held that the time period involved in extradition
proceedings is not mandatory but discretionary. Long, supra;
Paskowski, supra; People v. Superior Court (Lopez), supra.
      In Stynchcombe v. Whitley (Ga. 1978), 242 S.E.2d 720,
721-722, the purpose behind the extradition statutes is
stated in a situation similar to what we are faced with in
this case.   In Stynchcombe, 242 S.E.2d at 721, the court
citing People ex rel. Gummow v. Larson (Ill. 1966), 220
N.E.2d 165, stated:
          "The purpose of these sections of the
          extradition    law    is    to    prevent
          unreasonably    lengthy    periods     of
          confinement    of    fugitives    pending
          consummation of extradition proceedings
          by the demanding state (citations). . . "
The court further stated in Stynchcombe, 242 S.E.2d at 722,
citing In re Colasanti (N.J. 1969), 249 A.2d 1:
           "The sections only limit the time during
           which one arrested as a fugitive may be
           kept in jail (or on bail in lieu thereof)
           pending the completion of extradition
           proceedings and the issuance of the
           governor's arrest warrant."
      Our extradition statutes have the purpose of allowing
the accused to be held in jail, or on bail as in this case,
after the initial charge while awaiting the Governor's
Warrant.   Additionally, the time limitations stated in the
statutes suggest that the fugitive not be detained for an
undue or unreasonable length of time. Accord, Rreckenridge
v. Hindman (Kan.App. 1984), 691 P.2d 405; Application of
Dunster (N.J. 1974), 328 A.2d 238.    Here, Campbell was not
detained or incarcerated but instead was free on bail.
      The court should not have discharged the defendant
where the more reasonable approach, since all parties were
finally present before the court including the Wisconsin
authorities, would have been to deliver the fugitive
according to the Governor's Warrant. The court did not have
authority to quash the writ of extradition and the warrant
was valid on that date.
      We reverse the oral order of the District Court
quashing the writ of extradition.




We concur:


 hief Justice




@
e
Justices
Mr. Justice LTohn C. Sheehy, dissenting:


     I dissent.
     It is apparent from the record that the District Judge
in this case became properly impatient with the unexplained
delay of the Wisconsin authorities to consummate an arrest of
the defendant under the Governor's warrant.    His court was
being played with, the defendant's rights were being ignored,
and there is considerable doubt under the statutes of Montana
and the federal laws that he had any further jurisdiction to
hand over the defendant to Wisconsin.
     The majority    have misread or misinterpreted the
applicable statutes here.       The authority for Montana
officials to arrest a defendant wanted in another state for a
crime is found in 5 46-30-227, MCA.    If the defendant does
not consent to extradition, he must be committed to the
county jail for not exceeding 30 days or admitted to bail, 5
46-30-302, MCA, to provide time to obtain a requisition from
the demanding state.   Upon receipt of the requisition, the
Governor of this state may then issue an arrest warrant
against the defendant.   Section 46-30-213, MCA. The 30-day
period is a limitation upon the power of Montana to hold the
defendant without a requisition from the demanding state when
Montana proceeds against him under 5 46-30-227, MCA.
     In this case, the warrant from the Governor was not
issued within the 30-day period.     Campbell first appeared
before the court on September 14, 1987, and the warrant of
the Governor was not obtained until October 30, 1987. Yet
the state had a statutory means to continue to hold the
defendant under bail.    It could have, under    9 46-30-304,
MCA, moved the District Court for an additional 60 days. The
defendant was entitled to his release at the end of that
period or on November 13, 1987.
     The state itself maintains that the defendant was never
arrested under the Governor's Warrant, only that he was
served with a copy of it. Yet an arrest under the Governor's
warrant is the sine qua - of extradition proceedings. Only
                        non
the Governor has the statutory power to issue a warrant of
arrest which will result in the delivery of a defendant to
another state's jurisdiction. Section 46-30-201, MCA. Since
no arrest occurred under the Governor's Warrant, the
defendant was clearly entitled to be discharged from custody
at the expiration of the time extended by the District Court.
     It is true that in this case the District Court stated
it would quash the writ of extradition.       Of course, the
District Court had no such power.        Yet discharging the
defendant from custody in this case was proper.           The
defendant had not been arrested under the authority of the
Governor's warrant within the time permitted by the statutes.
If the argument of the State is correct, the defendant was
never arrested under the Governor's warrant. The defendant
was clearly entitled to be released from custody and his bond
discharged.
     Finally, nothing in this case prevents the state of
Wisconsin from starting over and doing it right. This is the
