                          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

FILED                                      AT NASHVILLE

                                       JANUARY 1995 SESSION
 October 4, 1995

Cecil Crowson, Jr.
                  EDWARD RABIE,
Appellate Court Clerk                      *   C.C.A. # O1CO1-9310-CR-00341

                     Appellant,            *   DAVIDSON COUNTY

               VS.                         *   Hon. Seth W. Norman, Judge

               HANK HILLIN, SHERIFF,       *   (Habeas Corpus)

                     Appellee.             *




               For Appellant:                      For Appellee:

               Patrick T. McNally, Attorney        Charles W. Burson
               Hollins, Wagster &                  Attorney General
                  Yarbrough, P.C.
               424 Church Street 22nd Floor        Michael E. Moore
               Third National Financial Center     Solicitor General
               Nashville, TN 37219
                                                   Jerry L. Smith
               Geoffrey Coston, Attorney           Deputy Attorney General
               2813 West End Ave.                  500 Charlotte Avenue
               Nashville, TN 37203                 Nashville, TN 37243-0497
               (at trial court)
                                                   Jon Seaborg
                                                   Asst. Dist. Attorney General
                                                   102 Metropolitan Courthouse
                                                   Nashville, TN 37201




               OPINION FILED:




               AFFIRMED




               GARY R. WADE, JUDGE
                            OPINION

          The petitioner, Edward Rabie, appeals from the trial

Court's denial of his petition for writ of habeas corpus.    The

single issue presented for review is whether the extradition

documents were legally sufficient to authorize the governor of

this state to detain and return the petitioner to Kentucky.



          We affirm the judgment of the trial court.



          The petitioner had been indicted in Kentucky on

several counts of securities fraud related to his operation of

a health corporation.   On January 15, 1993, the petitioner was

arrested in this state on a rendition warrant issued by the

governor of Tennessee for extradition to Kentucky.    Seven days

later, the petitioner filed a petition for writ of habeas

corpus in Davidson County alleging that he had been unlawfully

taken into custody.



          The case was transferred to the Criminal Court and

after reviewing the pleadings, briefs, and trial exhibits, the

trial judge denied the petition.    The petitioner filed a

motion for a new trial, was denied relief, and then gave

notice of appeal.   Later, the state filed a motion to consider

post-judgment facts and to dismiss the appeal based upon

Kentucky having recalled its previous requisition and having

submitted a second extradition warrant.    Based on that, this

court remanded this cause to the trial court for the limited

purpose of reviewing its original denial of the writ in view

of the new extradition documents.     See Tenn. Code Ann. § 40-9-


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117 (providing that the governor may "issue another warrant

whenever he deems proper").    The trial court made these

findings:

            [T]he extradition documents issued by the
            Governor of Kentucky and the Governor of
            Tennessee are proper on their face and require
            extradition of the Petitioner to Kentucky under
            T.C.A. § 40-9-112 for his acts inside Kentucky
            and under T.C.A. § 40-9-113 for his acts
            outside Kentucky that resulted in crimes inside
            Kentucky.

In his appeal of that order, the petitioner argues that the

documents failed to establish either of the two prerequisites

for extradition: (1) that he committed the offense while in

Kentucky; or (2) that he performed acts while in another state

(presumably in New York) which caused the commission of crimes

in Kentucky.



            The authority to extradite originates in the federal

constitution:

            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.    In 1951, Tennessee adopted the

Uniform Criminal Extradition Act.   See Tenn. Code Ann. § 40-9-

101 thru -130.   Pursuant to that act, "it is the duty of the

governor of this state to have arrested and delivered up to

the executive authority of any other state any person charged

in that state with treason, felony or other crime, who has

fled from justice and is found in this state."   Tenn. Code

Ann. § 40-9-109; see also Yates v. Gillese, 841 S.W.2d 332,

335 (Tenn. Crim. App. 1992).

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          The demand from another state, however, may only be

honored by the governor of Tennessee when (1) it is in

writing; (2) authenticated by the executive authority making

the demand; and (3) in compliance with the requirements of

§ 40-9-112.   Tenn. Code Ann. §§ 40-9-110 and -112; see also

Earhart v. Hicks, 656 S.W.2d 873, 876 (Tenn. Crim. App. 1983).

Tenn. Code Ann. § 40-9-112 governs those cases in which the

accused was present in the demanding state at the time of the

offense; it provides as follows:

          Allegations required in demand for
          extradition.-- A warrant of extradition must
          not be issued unless the documents presented by
          the executive authority making the demand show
          that:
                (1) Except in cases arising under § 40-9-
          113, the accused was present in the demanding
          state at the time of the commission of the
          alleged crime, and thereafter fled from the
          state;
                (2) The accused is now in this state; and
                (3) He is lawfully charged by indictment
          found or by information filed by a prosecuting
          officer and supported by affidavit to the
          facts, or by affidavit made before a magistrate
          in that state, with having committed a crime
          under the laws of that state, or that he has
          been convicted of a crime in that state and has
          escaped from confinement or broken his parole.



          When the accused is not actually in the demanding

state at the time of the offense, but rather committed acts in

another state which resulted in a crime in the demanding

state, Tenn. Code Ann. § 40-9-113 applies; that section

provides as follows:

          Acts resulting in crime in state in which
          accused is not present.-- The governor of this
          state may also surrender, on demand of the
          executive authority of any other state, any
          person in this state charged in such other
          state in the manner provided in § 40-9-112 with
          committing an act in this state, or in a third


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state, intentionally resulting in a crime in
the state whose executive authority is making
the demand. The provisions of this chapter not
otherwise inconsistent shall apply to such
cases, notwithstanding that the accused was not
in that state at the time of the commission of
the crime, and has not fled therefrom.




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           Extradition proceedings are summary in nature and

are designed only to test whether the rendition warrant is

valid.   E.g., de la Beckwith v. Evatt, 819 S.W.2d 453, 456-57

(Tenn. Crim. App. 1991).   This state's authority to review the

propriety of the transfer to the demanding state is limited to

the following issues:

           (1) whether the extradition documents are in
           order on their face;

           (2) whether the petitioner has been charged
           with a crime in the demanding state;

           (3) whether the petitioner is the person named in
           the request for the extradition; and

           (4) whether the petitioner is a fugitive.

Sneed v. State, 872 S.W.2d 930, 934 (Tenn. Crim. App. 1993)

(quoting de la Beckwith v. Evatt, 819 S.W.2d at 456); see also

Michigan v. Doran, 439 U.S. 282 (1978).      Here, the

petitioner's only claim is that the extradition documents are

facially invalid.



           The state initially argued for a dismissal on the

basis that this court should not take any action because the

petitioner had requested a hearing before the governor.         The

state claimed that Tenn. Code Ann. § 40-9-108(b) did not

provide this court with any authority to act until the

governor acted on the request.       The state has asked us to

consider the hearing request as a post-judgment fact.         Tenn.

R. App. P. 14.   A supporting affidavit and a copy of the

letter requesting the hearing have been provided.        In

response, the petitioner filed his own motion alleging that he

had withdrawn his request for a hearing before the governor.

Afterward, the state confirmed that the petitioner had, in

                                 6
fact, withdrawn his request for the hearing.    In consequence,

whether the petitioner's request for a governor's hearing

precludes the exercise of jurisdiction by this court is no

longer at issue.



           We now turn to the merits of the petition.   The

purpose of our statutory scheme is to require the state to

establish a sufficient basis for extradition.   Earhart v.

Hicks, 656 S.W.2d at 876.   Here, all of the amended documents,

whether initiated in Kentucky or Tennessee, describe the

petitioner as a fugitive from justice in Kentucky.    The

documents include allegations that the petitioner, who resided

in New York but had flown to Tennessee for business, was in

both Kentucky and another state during the times the crimes

were committed.    Those allegations are sufficient on their

face.   Whether or not the Kentucky indictments meet the

requirements of law or whether the petitioner is actually

guilty of the offenses are not appropriate questions for our

review.   See State ex rel Bradford v. Thomas, 653 S.W.2d 755,

756 (Tenn. Crim. App. 1983); Tenn. Code Ann. § 40-9-114.      The

extradition process does not deprive the petitioner of any

possible defense.



           Accordingly, the judgment is affirmed.




                                Gary R. Wade, Judge

CONCUR:




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John H. Peay, Judge




William S. Russell, Special Judge




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