CARLTON v. THE STATE, 254 Ga. App. 653

Barnes, Judge. Thomas Carlton, a federal prisoner, filed a pro se motion under the Interstate Agreement on Detainers (“IAD”) to dismiss “all actions, indictments, informations, and complaints” against him after Walker County lodged a detainer against him with the Federal Bureau of Prisons based on a warrant for his arrest. The record contains an arrest warrant, based upon an affidavit and signed by a magistrate, for violation of the Georgia Controlled Substances Act for possession of methamphetamine.

The warrant was forwarded to the original federal correctional facility having custody of Carlton by letter from the Walker County Sheriffs Office and signed by the warrant officer. After reciting information about Carlton, the letter stated: Enclosed is a certified copy on an arrest warrant on file at the WALKER COUNTY SHERIFF’S DEPARTMENT, LAFAYETTE, GA. Please accept this letter and copy of the warrant as a detainer on the above named subject. Please advise when this subject is ready to be released from your facility. We will pick up subject.

In response to the detainer letter, Carlton made a request for final disposition of the “indictments, informations, or complaints” now pending against him. A federal correctional official forwarded Carlton’s demand by letter to the district attorney, sent certified mail. The copy of the letter in the record shows it was sent to the clerk of the superior court, and the first page of the letter shows it was filed on October 6, 1998. When Carlton’s request for disposition of the charges was not acted upon in the time required, he moved for dismissal of the charges under the IAD.

No response to this motion is in the record on appeal. Nevertheless, the trial court denied the motion to dismiss solely because the IAD “does not apply to cases only in the warrant stage, but requires a formal charging instrument, i.e., indictment or its equivalent.” According to the record on appeal, no issue concerning service of Carlton’s request for disposition was raised below or ruled on by the trial court. After his motion for an out-of-time appeal was granted, Carlton filed this appeal. Because a detainer based on a warrant for pending criminal charges triggers the protections of the IAD, we reverse.

Further, because our opinion in Newt v. State, 190 Ga. App. 301 (379 SE2d 11) (1989), conflicts with the Supreme Court’s

interpretation of the IAD Act in Suggs v. Hopper, 234 Ga. 242, 243 (215 SE2d 246) (1975), that the IAD does not apply to post-conviction arrest warrants for probation violations, we must overrule Newt. 1. Procedurally, no issue regarding the service of Carlton’s IAD request is properly before us. No issue was raised or ruled on in the trial court about the method Carlton used to forward his request for disposition of the charges against him, and the State’s brief on appeal does not even mention the possibility of this issue.

Instead, the trial court denied Carlton’s motion to dismiss only because it found that the IAD did not apply to cases at the warrant stage. When this case is returned upon remittitur, the State may raise any appropriate procedural defenses at that time. We should not rule on this issue now because it has not been addressed by the parties or ruled on by the trial court. 2.

The IAD “creates uniform procedures for lodging and executing a detainer, i.e., a legal order that requires a State in which an individual is currently imprisoned to hold that individual when he has finished serving his sentence so that he may be tried by a different State for a different crime.” Alabama v. Bozeman, 533 U. S. 146, 148 (121 SC 2079, 150 LE2d 188) (2001).

Because outstanding charges against a prisoner “produce uncertainties which obstruct programs of prisoner treatment and rehabilitation,” the purpose of the IAD is “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, infor-mations or complaints. . . .” OCGA § 42-6-20 (Art. I). Further, it “shall be liberally construed so as to effectuate its purposes.” OCGA § 42-6-20 (Art. IX).

If the prisoner fulfills the notice requirements of the IAD, and the receiving state fails to bring the prisoner to trial within 180 days, the court in the receiving state must dismiss the “indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner.” OCGA § 42-6-20 (Art. Ill (a), (d)). In this case, the issue is whether a detainer based on an arrest warrant for a violation of the Georgia Controlled Substances Act constitutes a detainer that invokes the provisions of the IAD. In United States v.

Ford, 550 F2d 732 (2nd Cir. 1977), federal prosecutors lodged a warrant for bank robbery with state authorities as a detainer against the defendant and then sought to compel his presence with a writ of habeas corpus ad prosequendum. The court noted that warrants were “commonly used as detainers,” and that the government conceded that the defendant was subject to a detainer. Id. at 736, n. 5. In considering the Second Circuit’s holding, the U. S. Supreme Court subsequently noted that “[t]he Agreement itself contains no definition of the word ‘detainer.’ The House and Senate Reports, however, explain that ‘(

a) detainer is a 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.’ [Cits.]” United States v. Mauro, 436 U. S. 340, 359 (IV) (B) (98 SC 1834, 56 LE2d 329) (1978). “Once the Federal Government lodges a detainer against a prisoner with state prison officials, the Agreement by its express terms becomes applicable and the United States must comply with its provisions.” Id. at 361-362 (V). Further, the drafters of the IAD intended “detainers” to include warrants.

The Ohio Court of Appeals, in holding that a faxed letter accompanied by complaints and arrest warrants constituted a detainer, noted that, “The council on state governments, which drafted the IAD, defined a ‘detainer’ as a ‘warrant filed against a person already in custody with the purpose of insuring that he will be available to the authority which has placed the detainer.’ ” State v. Wells, 94 Ohio App.3d 48, 53 (640 NE2d 217) (1994).

In this case, Walker County used an arrest warrant to lodge a detainer against Carlton, notifying the Federal Bureau of Prisons that Carlton is wanted to face pending criminal charges in Walker County. A sheriff swore under oath that Carlton committed a criminal offense by violating the Georgia Controlled Substances Act, and a magistrate then issued a warrant commanding the arrest of Carlton. The warrant specified that Carlton was “charged by the prosecutor” with the offense against the laws of this State as set out in the sheriff’s affidavit. (Emphasis supplied.)

Article I of the IAD explains that it is intended to apply to both “charges outstanding against a prisoner” and “detainers based on untried indictments, informations or complaints.” OCGA § 42-6-20 (Art. I). Clearly a charge was pending against Carlton.

Further, although “complaint” is not a term commonly used in the criminal justice system in Georgia, “complaint” is defined in Black’s Law Dictionary (6th ed.), as a charge, preferred before a magistrate having jurisdiction, that a person named (or an unknown person) has committed a specified offense, with an offer to prove the fact, to the end that a prosecution may be instituted. The complaint can be “taken out” by the victim, a police officer, the district attorney, or other interested party. Although the complaint charges an offense, an indictment or information may be the formal charging document.

The complaint is a written statement of the essential facts constituting the offense charged. In the federal courts, it is to be made upon oath before a magistrate. Fed. R. Crim. R 3. If it appears from the complaint that probable cause exists that the person named in the complaint committed the alleged crime, a warrant (q.v.) for his arrest will be issued. Fed. R. Crim. P. 4.

In this state, arrest warrants are issued by judges based on their own knowledge or based on information given them under oath (OCGA § 17-4-40), and the contents required in affidavits requesting arrest warrants are stated in OCGA § 17-4-41. Therefore, as a Georgia arrest warrant meets all the criteria of a complaint as defined in Black’s, we find that a Georgia arrest warrant is the functional equivalent of a “complaint” for purposes of the IAD. As the U. S. Supreme Court acknowledged in United States v. Mauro, supra, 436 U. S. at 361-362, a detainer lodged against a prisoner based on a warrant invokes the IAD.

The decision in Carchman v. Nash, 473 U. S. 716 (105 SC 3401, 87 LE2d 516) (1985), does not require a different result. In Carchman, the U. S. Supreme Court considered whether a detainer based on probation violation charges triggered the application of the IAD and concluded that the phrase “untried indictment, information or complaint” in the IAD refers to criminal charges pending against a prisoner.

Id. at 725 (III) (A). “A probation-violation charge, which does not accuse an individual with having committed a criminal offense in the sense of initiating a prosecution, thus does not come within the terms” of the IAD and “does not result in the probationer’s being ‘prosecuted’ or “brought to trial’ for that offense.” Id.

Instead, the probation-violation charge results in a probation-revocation hearing, a proceeding to determine whether the conditions of probation should be modified or the probationer should be resentenced, at which the probationer is entitled to less than the full panoply of due process rights accorded a defendant at a criminal trial. Id. at 725-726 (III) (A). Presaging the U. S. Supreme Court’s 1985 decision in Carchman, the Supreme Court of Georgia also held in 1975 that arrest warrants for probation violations do not invoke the provisions of the IAD.

The purpose of the [IAD] is to insure speedy trial on pending charges before staleness and difficulty of proof set in. These are pre-trial, and not sentencing, considerations. Suggs’ petition is without merit because the statute by its terms relates only to an “untried indictment, information or complaint,” and does not apply to warrants for arrest for probation violation. Suggs v. Hopper, supra, 234 Ga. at 243. Even though the ultimate holding in Suggs v. Hopper was that the IAD did not apply to arrest warrants for probation violations, the analysis is not based on the fact that the detainer was for a warrant.

The lesson of Suggs v. Hopper is that the IAD applies to detainers holding a prisoner for trial for untried charges. In Newt v. State, supra, 190 Ga. App. at 301, quoting Suggs v. Hopper, however, we held that the IAD does not apply to detainers based on any warrants for arrest. Because Newt conflicts with the U. S. Supreme Court’s

interpretation that detainers include arrest warrants and overextends the analysis in Suggs, we must overrule it. Judgment reversed. Pope, P. J, Andrews, P. J, Johnson, P. J, Smith, P. J, Miller, Ellington, Phipps and Mikell, Jd, concur. Blackburn, C. J., and Eldridge, J., dissent. Ruffin, J., concurs in Division 2 of the dissent only.

Carlton’s brief supporting his motion stated: “Prisoner has been denied rehabilitation programs and custody level considerations due to Walker Counties [sic] refusal to [bring him to trial on its charges].” He reiterated that reasoning in a letter to the Walker County Sheriff requesting prompt service of the warrant: “This warrant is . . . halting me from programming and continue [sic] to better myself. . . . [A]fter the warrant has been served, it will allow me to enter a different security level and new programs.” The State did not contest these statements. In United States v. Mauro, the U. S.

Supreme Court considered two cases. In the first case, it held that the prosecutor’s filing of a writ of habeas corpus ad prosequendum did not, by itself, trigger the provisions of the IAD. 436 U. S. at 349. In the second case, it held that when the government lodges a detainer based on an arrest warrant in addition to the writ, the IAD applies. Id. at 361-362.

Further, in another context, we held that a “letter with the Department of Corrections stating there was an outstanding warrant for the defendant, and the State intended to prosecute, substantially complied with the codal definition of a ‘detainer.’ OCGA § 42-6-1.” Riley v. State, 180 Ga. App. 409, 412 (3) (349 SE2d 274) (1986) (physical precedent only).