Updated 12/24/09

Detainers, § 976.05 – Definition, Nationwide Arrest Warrant as Satisfying
State v. William M. Onheiber, 2009 WI App 180 (pdf link provided, to capture relevant document, ¶4); AG’s PFR filed 12/21/09
Pro se
Issue/Holding: Faxing to the defendant’s prison an arrest warrant and complaint, followed by verbal confirmation of the validity of same, satisfied the § 976.05 definition of “detainer,” notwithstanding the issuing authority’s express disavowal to the prison of intent to lodge a detainer.
¶11   We fail to see how the foregoing could possibly not demonstrate “notification filed with the institution in which a prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.” Indeed, we recently referred to a nationwide arrest warrant interchangeably as a detainer. See Tarrant, 772 N.W.2d 750, ¶3.

¶12   Nonetheless, the State argues the nationwide arrest warrant should not be considered a detainer because the prison learned of it indirectly, and because the warrant is similar to a writ of habeas corpus ad prosequendum, which was determined in Eesley not to constitute a detainer.

¶13   We reject the notion that how a prison first learns of a warrant or pending charges has any bearing on whether a detainer has been lodged. What matters is whether a notification satisfying the definition of a detainer is filed. Here, the sheriff’s department confirmed the existence of the nationwide arrest warrant and pending charges, and then faxed copies directly to the prison.

The court impressively catalogs the detrimental effects of a detainer, as distinguished from a “temporary writ” such as habeas corpus ad prosequendum, ¶¶14-18. And, the court all but holds that a “nationwide arrest warrant” is enough, ¶13 n. 8 (“Although we need not decide the issue in light of the direct delivery of the warrant and complaint in this case, a strong argument can be made that mere entry of a nationwide arrest warrant into the NCIC or a similar national database is sufficient to constitute the lodging of a detainer when a prison learns of the warrant by accessing that database.”). Very strong reaction, too, to State's non-detainer rationale which apparently tested the outer limit of the court’s patience (relatively uncharted terrain, at least with respect to State argumentation; nor, if you happen to be the trial judge who agreed with that rationale, can you be pleased with the tone), worth quoting in full:
¶19   The State cannot file a detainer but then circumvent the requirements of the Interstate Agreement on Detainers by simply informing prison officials the State does not want the detainer to be called a detainer. Such a result would be farcical. Given that the facts of this case fit precisely within the established definition of a detainer, and given the State’s knowledge of the continuing and irreversible detrimental effects of the detainer on Onheiber, the State’s position in this case is unfortunate. The district attorney and attorney general are:
the representative[s] not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
Nelson v. State, 59 Wis.  2d 474, 483, 208 N.W.2d 410 (1973) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). Our supreme court further recognized: “The office of prosecutor is an agency of the executive branch of government which is charged with the duty to see that the laws are faithfully executed and enforced in order to maintain the rule of law.” Id. (quoting ABA Project on Standards for Criminal Justice, The Prosecution Function and The Defense Function, § 1.1(a)). The State’s handling of this case does not promote the rule of law.
Ouch! The State has filed a petition for review. Interesting to see what will come of it.
Detainers – Interstate Act, Construction, Generally
State v. Benjamin D. Tarrant, 2009 WI App 121
For Tarrant: Susan E. Alesia, SPD, Madison Appellate
¶8        Discussion. The IAD is a congressionally approved interstate compact that establishes procedures for the transfer of a prisoner in one jurisdiction to the temporary custody of another. [2] State v. Grzelak, 215 Wis. 2d 577, 580, 573 N.W.2d 538 (Ct. App. 1997). In order to have consistency with the IAD interpretations of other federal and state courts, we must give considerable weight to federal and states courts’ decisions construing the IAD. State v. Whittemore, 166 Wis. 2d 127, 133, 479 N.W.2d 566 (Ct. App. 1991). And, federal interpretations of the IAD trump state court interpretations because construction of interstate compacts, approved by congress under the Commerce Clause, presents a federal question. Mushlin, § 10.21, at 384-85.
Detainers – Interstate Act – Elimination of Extradition Authority, in Response to Request for Speedy Disposition
State v. Benjamin D. Tarrant, 2009 WI App 121
For Tarrant: Susan E. Alesia, SPD, Madison Appellate
¶1        Benjamin D. Tarrant appeals from the circuit court’s denial of his motion to dismiss criminal charges against him, premised on the State of Wisconsin’s failure to comply with the time limits of the Interstate Agreement on Detainers (IAD). We reverse, because the modification of a national arrest warrant, after Tarrant invoked the speedy trial provisions of the IAD, frustrated the principal purpose of the IAD, to protect prisoners by encouraging the prompt and final disposition of untried criminal charges.

¶22      Conclusion. Once a prisoner has properly requested a prompt and final disposition of pending criminal charges, the only way the State can avoid its obligation to bring the prisoner to trial within 180 days of the request is to dismiss the untried complaint or information. Because Green Lake county only modified the arrest warrant to rule out nationwide extradition and did not withdraw the detainer and dismiss the criminal complaint, the source for Tarrant’s request for a speedy trial was still in existence. Tarrant did not get the prompt and final disposition required by the IAD. Therefore, we reverse his conviction and remand to the circuit court with directions to dismiss the criminal complaint or Information with prejudice as required by Wis. Stat. § 976.05(3)(d). State v. Townsend, 2006 WI App 177, ¶12, 295 Wis. 2d 844, 722 N.W.2d 753.

Solid discussion by court of purposes of IAD, namely “to prevent or lessen a number of detrimental effects that can arise when a detainer is lodged,” ¶18. Court also rejects the idea that proof of prejudice is necessary, ¶21.
Detainers – Interstate Agreement on Detainers – Generally
State ex rel Frederick Lee Pharm v. Bartow, 2007 WI 13, affirming 2005 WI App 215
For Pharm: Jon G. Furlow, Nia Enemuch-Trammell, Roisin H. Bell (Pro Bono Project)
¶14      The IAD is an interstate compact that prescribes "procedures by which a member State may obtain for trial a prisoner incarcerated in another member jurisdiction and by which the prisoner may demand the speedy disposition of certain charges pending against him in another jurisdiction." State v. Eesley, 225 Wis.  2d 248, 254, 591 N.W.2d 846 (1999) (quoting United States v. Mauro, 436 U.S. 340, 343 (1978)). Both Wisconsin and Nevada are party states to the IAD. The IAD is set out in Wis. Stat. § 976.05 and Nev. Rev. Stat. § 178.620 (2005). The IAD aids in efficient prosecution of crimes and it removes uncertainties that obstruct programs of prisoner treatment and rehabilitation by clarifying prisoner status. § 976.05(1).

¶15      The IAD is a congressionally sanctioned interstate compact within the meaning of the Compact Clause of the United States Constitution, Art. I, § 10, cl. 3, "and thus is a federal law subject to federal construction." Carchman v. Nash, 473 U.S. 716, 719 (1985) (citing Cuyler v. Adams, 449 U.S. 433, 438-442 (1981)). Therefore, in order to accord more consistency with the IAD interpretations of other federal and state courts, we may employ federal rules of construction in interpreting Wis. Stat. § 976.05.

Discussion follows re: procedure when IAD is triggered by detainer, ¶¶16-19.
Detainers – Interstate Agreement on Detainers – Inapplicable to SVP Commitment Following Return under IAD to Serve Criminal Sentence
State ex rel Frederick Lee Pharm v. Bartow, 2007 WI 13, affirming 2005 WI App 215
For Pharm: Jon G. Furlow, Nia Enemuch-Trammell, Roisin H. Bell (Pro Bono Project)
Issue: Whether, following Pharm’s release in another state prison on life-time parole and his return here under the IAD to serve a Wisconsin sentence, he was subject to ch. 980 commitment proceedings on his release from that sentence.
¶24      Furthermore, the language of the IAD is clear and unambiguous. The IAD applies to detainers lodged against prisoners that are based on untried indictments, informations or complaints. … There is nothing in the IAD that indicates that the rights accorded to prisoners under it attach when there are no untried charges outstanding. Therefore, we conclude that under the plain language of the statute, a prisoner has the following rights after he or she files a Request for Disposition under Article III (§ 976.05(3)): (1) transportation to a receiving state to answer pending charges; (2) commencement of a trial within 180 days in the receiving state; (3) return to the sending state to complete the prisoner's term of incarceration; and (4) upon completion of the prisoner's term of incarceration in the sending state, return to the receiving state to serve any term of incarceration that has been imposed there.
Nor did the civil commitment invalidate Pharm’s waiver of extradition, ¶¶36-39.
Detainers – Interstate Agreement on Detainers – Inapplicable to Parole
State ex rel Frederick Lee Pharm v. Bartow, 2007 WI 13, affirming 2005 WI App 215
For Pharm: Jon G. Furlow, Nia Enemuch-Trammell, Roisin H. Bell (Pro Bono Project)
Issue/Holding: The IAD applies only during “imprisonment,” and is therefore inapplicable to “parole”:
¶25      Pharm also argues that his Nevada parole is "imprisonment," as that term is used in the IAD. Imprisonment is not defined in the IAD. Therefore, it is defined according to its common meaning. Perrin, 444 U.S. at 42 (stating that unless otherwise defined, words will be interpreted as taking their common meaning) (citation omitted)). Federal courts have defined imprisonment as "that definable period of time during which a prisoner must be confined in order to complete or satisfy the prison term or sentence which has been ordered." United States v. Dobson, 585 F.2d 55, 58-59 (3rd Cir. 1978) (emphasis in original); see also United States v. Reed, 620 F.2d 709, 711 (9th Cir. 1980) (concluding a person on parole is not imprisoned under the IAD).

¶27      In addition, if the definition of imprisonment under the IAD were interpreted to include both actual confinement and extended supervision or parole, a prisoner sentenced to parole for life in a sending state would remain indefinitely in the sending state and would never be eligible to serve his or her sentence in the receiving state. This result is not in accord with the plain language of the IAD. State ex rel. Otterstetter v. McManus, 243 N.W.2d 730, 732-33 (Minn. 1976). [11]

Detainers – Violation of Interstate Detainer Act, Failure of Sending State to Notify Prisoner: Dismissal Not Remedy
State v. Jeffrey Townsend, 2006 WI App 177, PFR filed 8/18/06
For Townsend: Ellen Henak, SPD, Milwaukee Appellate
Issue/Holding: Because the Interstate Agreement on Detainers, § 976.05, doesn’t prescribe dismissal as a sanction for a state’s failure to notify a prisoner of a lodged detainer, dismissal as a remedy for such a violation is not supported:
¶17 Any IAD violation was the fault of Illinois, not Wisconsin. In light of this, we believe the extreme remedy of dismissing the Wisconsin charge against Townsend, which is not specifically mandated by the IAD, is not appropriate. We understand the appellant’s frustration with the Illinois prison system’s ineptness that led to a clear violation of the IAD, but the State of Wisconsin did not violate the IAD, and Townsend clearly knew of the Wisconsin charge and chose not to waive extradition and seek a quick resolution. [3] Under these circumstances, it would be contrary to public policy to permit Townsend to escape prosecution on the crime he committed in Wisconsin.

¶18 Further, although Townsend contends that the IAD violation prevented him from seeking prompt resolution of the Wisconsin charge so that he could have requested concurrent sentences, he does not allege that he was actually prejudiced by any violation. Namely, he does not assert that for some reason because of the delay he was unable to mount a defense to the Wisconsin charge. Accordingly, Townsend has failed to establish that he was prejudiced by Illinois’ failure to comply with the IAD. See State v. Russo, 70 Wis. 2d 169, 177-78, 233 N.W.2d 485 (1975). [4]

[3] We held in State v. Miller, 2003 WI App 74, ¶11, 261 Wis. 2d 866, 661 N.W.2d 466, that the rights provided by the IAD may be waived. Waiver applies whether or not the defendant is aware of the IAD provisions when the defendant requests treatment inconsistent with IAD’s provisions. Id.

[4] The trial court, in its order, addressed the issue of whether Townsend’s speedy trial right had been violated under the circumstances of this case. The trial court concluded that the right had not been violated. We agree with the trial court’s analysis in that regard. Townsend does not specifically challenge this portion of the trial court’s order and therefore, we decline to address it further.

The dissent, among other salient points, reminds that we are, after all, talking about a contract Wisconsin signed on to: “The failure of a ‘party state’ to follow the rules should not exempt Wisconsin from the consequences,” ¶23.
Extradition – Rule of Specialty
State ex rel. Kenneth Onapolis  v. State, 2006 WI App 84, PFR filed 5/25/06
Pro se
Issue/Holding: Extradition from Australia to Wisconsin to face bank fraud and federal tax charges did not preclude, under the Rule of Specialty, Onapolis’s return on an outstanding parole violation warrant, at least where the parole violations included the fraud and tax offenses. (“The Rule of Specialty generally requires that an extradited defendant be tried for the crimes on which extradition has been granted, and none other,” ¶7).
The holding isn’t easily summarized, probably because the issue is technical. The operative principle is this:
¶7        The Rule of Specialty generally requires that an extradited defendant be tried for the crimes on which extradition has been granted, and none other. United States v. Van Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987). The enforcement of the rule is founded primarily on international comity. United States v. Thirion, 813 F.2d 146, 151 (8th Cir. 1987). The requesting court must “live up to whatever promises it made in order to obtain extradition” because preservation of the institution of extradition requires the continuing cooperation of the surrendering state. United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir. 1986). Because the doctrine is grounded in international comity rather than in some right of the defendant, the Rule of Specialty may be waived by the asylum state.  Id.

 ¶9        In the final analysis then, the inquiry into the Rule of Specialty comes down to whether, under the totality of the circumstances, the court in the requesting state reasonably believes that prosecuting the defendant on particular charges contradicts the surrendering state’s manifest intentions. See United States  v. Cuevas, 847 F.2d 1417, 1427-28 (9th Cir. 1988). Phrased another way, the question is whether the surrendering state would deem the conduct for which the requesting state actually prosecutes the defendant as interconnected with (as opposed to independent from) the acts for which he was extradited. See id. 

The court then adopts the two-part test of U.S. v. Sensi, 879 F.2d 888 (D.C. Cir. 1989): the charge must be 1) “an extradictable offense,” and 2) established by the facts in respect of which extradition was granted, ¶14. The court stresses that the language of this particular treaty explicitly allows extradition for theft by any form of deception, ¶17 and id. n. 3, thus the offense was “extradictable.” And, Onapolis’s detention was based on the same facts as supported the extradition, thus satisfying the 2nd part of the test, ¶19. Left a bit unclear: whether the court is referring to the parole revocation or the fraud-related offenses. However, the court stresses that the revocation was in fact premised on the fraud and tax offenses, ¶¶23-25, something therefore presumably crucial to the holding.

What? The Rule of Specialty wasn’t covered in your crim pro coursework? And you never took that Intro to International Law course because you never figured you’d be practicing in The Hague? Plenty of catch-up work to do, then. Whatever the controversy over the use of foreign sources in constitutional interpretation, treaties undeniably bind American courts, and there is nothing remotely remarkable about consulting “international law” principles with respect to treaty construction. Although in the nature of things, deportation from the U.S. will comprise the bulk of SPD cases there will be the occasional extradition to this country, as Onapolis illustrates. Although his case raises an obscure (to the non-specialist on the Rule of Specialty) issue, it is nonetheless one that does recur. "Rauscher established the doctrine of specialty, 119 U.S. at 412, which provides that an extradited defendant may not be prosecuted 'for any offense other than that for which the surrendering country agreed to extradite,'” Benitez v. Garcia, 9th Cir. No. 04-56231, 7/16/07 (discussing possibility of treaty/extradition-enforced sentencing limitations ["Agreed-upon sentencing limitations are generally enforceable"], though denying relief on particular facts).

Because you can seemingly find anything you’re looking for on the Web, it’ll come as no surprise that there are extradition resources, including this handy one: http://www.internationalextradition.com/.

Interstate Act, Generally
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)
¶13      The IAD is a congressionally sanctioned interstate compact under the Compact Clause of the United States Constitution, Article I, Section 10, Clause 3. Cuyler v. Adams, 449 U.S. 433, 442 (1981); see also State v. Grzelak, 215 Wis.  2d 577, 580, 573 N.W.2d 538 (Ct. App. 1997). Wisconsin is a party to the Agreement pursuant to Wis. Stat. § 976.05. Grzelak, 215 Wis.  2d at 580. While the rights under the IAD are statutory, State v. Miller, 2003 WI App 74, ¶9, 261 Wis. 2d 866, 661 N.W.2d 466, they have the force of federal law. Cuyler, 449 U.S. at 442.
Interstate Act – Return on Untried Criminal Charge, Ultimate SVP Commitment
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)
Issue/Holding: Wisconsin ’s acquisition of ch. 980 jurisdiction over Pharm wasn’t undermined by the fact that he was returned to this state pursuant to an Interstate Detainer Act agreement to dispose of an untried Wisconsin criminal charge, at least given Pharm’s status as a parolee in the sending state, ¶¶15-25.
Interstate Act – Inapplicable to Parolee
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)
Issue/Holding: ¶¶18, 20:
Based on Carchman v. Nash, 473 U.S. 716 (1985), we hold that the IAD does not apply to a parolee. (¶) … Carchman dealt with a probationer, but we can discern no reason why the same result would not apply to a parolee. If probation status or an allegation of a probation violation does not constitute an “untried indictment, information or complaint” under the IAD, it logically follows that the same must be said of parole status or an allegation of a parole violation.
Intrastate Detainer, § 971.11 -- Self-Effectuating / Personal Nature of Request
State v. Michael D. Lewis, 2004 WI App 211
For Lewis: Timothy A. Provis
¶10. The State does not dispute that it failed to bring Lewis's case to trial within 120 days after the district attorney's office received his request for prompt disposition of his case. …

¶11. The statute mandates that when the case is not brought to trial within 120 days, it "shall be dismissed" unless the defendant escapes or otherwise prevents the trial from taking place. Here, two factors influenced the trial court's decision to reschedule the trial: the court's crowded trial calendar for the week of September 30, and the prosecutor's vacation plans. Either of these factors may be an appropriate reason to reschedule a trial within the statutory time limit; however, they do not justify violating a defendant's statutory right to prompt disposition under the IDA.

¶12. The State argues, however, that Lewis waived his right to a prompt disposition at the September 11, 2002 pretrial conference ….

¶14. The trial court held that Lewis had an "affirmative responsibility" to advise the court of his prompt disposition request. We cannot agree because no such duty exists in the statute. Further, we cannot conclude that Lewis's attorney, his third attorney on this case, waived Lewis's statutory right to prompt disposition by stating the rescheduled trial date was "fine." Waiver of a statutory right must be an intentional and voluntary relinquishment of a known right, and it must be accomplished by a clear and specific renunciation of that right. Mulvaney v. Tri State Truck & Auto Body, Inc., 70 Wis. 2d 760, 768, 235 N.W.2d 460 (1975). Lewis's attorney acquiesced to the rescheduled trial date only after the prosecutor indicated, incorrectly, that no request for prompt disposition had been filed. This is not an intentional and voluntary relinquishment of a known right. We are troubled by Lewis's absence from the pretrial hearing and observe that, had he been present, the issue of whether a request for prompt disposition had been filed could have been immediately, and accurately, resolved.3

¶15. We conclude that the trial court misplaced the responsibility for complying with the 120-day time limit on Lewis when it imposed an "affirmative responsibility" on him to advise the court of his properly submitted request. Once the district attorney receives the request, the responsibility for prompt disposition is placed squarely on the district attorney. Wis. Stat. § 971.11(1), (2). We hold that the trial court erred when it failed to dismiss the case in accordance with the mandate of § 971.11(7). We reverse and remand the case and direct the trial court to determine whether dismissal will be with or without prejudice. See Davis, 248 Wis. 2d 986, ¶29.

3 The trial court explained Lewis's absence from the pretrial hearing as follows: "We don't have the defendant here. He is in custody, and we were in the middle of a suppression hearing with two other in-custodies, so we are short of transport people." From this we gather that Lewis would have been there but for transportation issues. It is not explained, however, why Lewis could not have participated by telephone.
Interstate Agreement on Detainers - habeas corpus ad prosequendum.
State v. Danny C. Eesley, 225 Wis.2d 248, 591 N.W.2d 846 (1999), affirming unpublished decision.
For Eesley: Kyle H. Torvinen, Hendricks, Knudson, Gee, Hayden & Torvinen, S.C.
Issue/Holding: A writ of habeas corpus ad prosequendum, § 782.44 (1993-94), is not a detainer and therefore doesn't trigger the trial deadline of the Interstate Act on Detainers, § 976.05. (The court declines, on waiver grounds, to address a potential argument that using the writ to transfer a defendant from federal prison to state court violates the Executive Privilege Clause in U.S. Const. Art. IV, § 2.)
Intrastate Detainer Act, § 971.11 -- Violation of Right to Speedy Disposition -- Discretion to Dismiss with Prejudice as Remedy
State v. Christopher Lee Davis, 2001 WI 136, reversing 2001 WI App 61
For Davis: Jane Krueger Smith
Issue1: Whether a circuit has discretion to dismiss a case with prejudice under § 971.11(7), for failure of the state to bring it on for trial within the 120-day period set by § 971.11(2).
¶14. We agree with the court of appeals that ‘the legislature has left the matter up to the courts to exercise its [sic] discretion to dismiss with prejudice in a proper case lest the statute have no meaning at all.’ This interpretation of Wis. Stat. § 971.11(7) granting a circuit court the discretion to dismiss a criminal case with or without prejudice best serves the legislative purposes: First, this interpretation comports with the legislature's goal to prevent ‘the potential injustices resulting from the practice of filing detainers.’ Second, it comports with the legislature's objective to give an inmate ‘a greater degree of knowledge about his [or her] future [so that he or she] could begin more constructive planning and co-operate on a treatment program with the knowledge his [or her] efforts would not be minimized by the threat of unsatisfied charges.’ Third, it comports with the ‘legislative intent to provide the operation of a speedier disposition for inmates than for others charged with crimes.’ Fourth, it comports with the legislative purpose to prevent the State from repeatedly dismissing and refiling a criminal case after a dismissal without prejudice, rendering the 120-day time period set forth in § 971.11(2) a nullity. ‘The proper control of continued refiling of charges by the State is the authority of the courts to dismiss with prejudice.’ We further agree with the court of appeals that to interpret § 971.11(7) as requiring dismissal of a criminal case only without prejudice would deprive an inmate of prompt disposition of the case, which is the very purpose of § 971.11.
Issue2: Whether the trial court properly exercised discretion in dismissing the case with prejudice.
Holding: An exercise of discretion under § 971.11(7) should weigh various factors. ¶29. In this case, the circuit court believed that dismissal with prejudice was necessary as a matter of law; because this reasoning was not a proper exercise of discretion, the matter is remanded for such a determination. ¶¶33-34.
For factors relevant to whether to dismiss with(out) prejudice for an Interstate Detainer Act violation, see U.S. v. Kelley, 1st Cir. No. 04-1178, 3/22/05 ("among others, each of the following factors: The seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of the agreement on detainers and on the administration of justice . . . .").
Transfer to and from Out-of-State Prison
State ex rel. Bradley Jones v. Smith2002 WI App 90, PFR filed 4/19/02
For Jones: Jeffrey W. Jensen
Issue/Holding: "¶5. According to Jones and Morey, the government is required to use the extradition process whenever and wherever prisoners are transported through noncontracting states on their way to incarceration in a contracting state. This is patently absurd with no basis in the law of extradition or Wis. Stat. § 301.21." Moreover, extradition is a sovereign right of the asylum state, not the prisoner, so that the prisoner "has no right to complain if a sovereignty waives its right to insist on a traditional extradition procedure." ¶9. Finally, a defect in extradition procedure -- even a removal accomplished by force -- doesn’t cause a loss of power to try or punish the prisoner. ¶12.
Waiver of Potential IAD (§ 976.05) Violation by Conduct -- Discharge of Counsel
State v. Andrew S. Miller, 2003 WI App 74, PFR filed 4/11/03
For Miller: Brian C. Findley, SPD, Madison Appellate
¶12. This court has found that rights under the Detainer Act "are statutory in nature and may be waived by a defendant's request for a procedure inconsistent with its provisions." Brown, 118 Wis. 2d at 386. By firing his lawyer six days before the scheduled start of trial and twenty-eight days before the expiration of the time period, Miller requested such a procedure. ...

¶14. Alternatively, Miller argues that even if he did waive his rights under the IAD, he only waived them for the time up until his last scheduled November trial date. He argues that even if his action tolled the time limits of the IAD from July 3, 2001, to November 2001, the State still failed to try him in a timely manner. However, he cites no authority for the proposition that rights to a speedy trial can kick in after they have been waived. The law is that a defendant "cannot be heard to complain about delay caused by his own conduct," and that such conduct "need not be called delaying tactics to be identified as time consuming impediments to an early trial." Norwood v. State, 74 Wis. 2d 343, 357, 246 N.W.2d 801 (1976). Having asked for, and accepted, treatment inconsistent with his rights under the IAD, the defendant cannot then assert those rights in an effort to win dismissal of charges.

Waiver of IAD Violation
State v. Mohammed A. Nonahal, 2001 WI App 39
For Nonahal: David R. Karpe
Issue: Whether the defendant waived a claimed violation of the Interstate Agreement on Detainers’ anti-shuttling provision, by requesting to be sent back to the sending jurisdiction before trial.
¶8; ... we conclude that rights granted under the anti-shuttling provision of the IAD are statutory in nature and may be waived if the prisoner requests a procedure inconsistent with the statute’s provisions....

¶9; Turning to the facts of this case, we conclude that Nonahal affirmatively requested to be treated in a manner contrary to WIS. STAT. § 976.05(4)(e), the anti-shuttling provision of the IAD, and that his request constituted a waiver of these rights.

(Note: The U.S. Supreme Court has now applied a strict reading of the anti-shuttling provision, so that a preserved violation requires dismissal with prejudice. Alabama v. Michael H. Bozeman.)