APPEAL from the Circuit Court of Boone County; the Hon. DAVID
R. BABB, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by the State from the judgment of the circuit court of Boone County dismissing an indictment which charged the defendant with committing the offenses of robbery, aggravated battery and theft of property worth over $150.
The indictment was based on acts allegedly committed in Boone County in July of 1973. The defendant was located by the Boone County authorities shortly thereafter in the county jail at Muskegon, Michigan, where he was being held on a charge of "unlawfully driving away an automobile." In an interview at the Muskegon Jail he told the Boone County authorities that he was going to be sent to the penitentiary at Jackson, Michigan.
On January 12, 1974, while the defendant was in the penitentiary at Jackson, he received notice of a detainer filed against him by the State of Illinois. The defendant, at his hearing on the motion to dismiss the indictment, testified that when he received the notice of detainer he "and Warden Egeler" (Jackson, Michigan penitentiary warden) signed an extradition form which, the defendant said, was sent to Boone County State's Attorney Maville in January 1974, in which, according to his testimony, the defendant requested a speedy trial on the Illinois charges. The defendant was not indicted on the Illinois charges until August 29, 1974, when an indictment was returned against him for aggravated battery and theft.
On September 6, 1974, the Boone County authorities sent a request to the Jackson penitentiary for temporary custody of the defendant. On September 23 the defendant wrote to the governor of Michigan, with a copy to the Boone County State's Attorney, reading as follows:
"I am writing you in regard to a letter received September 19, 1974, from Mr. Raymond H. Nelson, Bureau of Feild [sic] Services, informing me of Request for Temporary Custody by the State of Illinois.
In January of this year, I issued a statement to the State of Illinois, signed by Warden Egeler requesting a fair and speedy trial or to quash the dispition [sic] of this case citing Criminal Law (MCLA 780.601) Rainey v. Department of Corrections, that a criminal be brought to trial on a untried indictment of a party state within 180 days.
I am again citing this law to you (MCLA 780.601) which was upheld by the Governor of the State of Michigan.
I request now that the Governor of the State of Michigan denies my temporary custody to the State of Illinois under the above cited law."
A copy of this letter was received by the State's Attorney of Boone County on September 26, 1974.
On September 30 the warden of the Jackson penitentiary acknowledged receipt of the Boone County request for a detainer and on November 25 signed a form offering to deliver the custody of the defendant to Illinois. On January 23, 1975, the defendant was actually returned to the custody of Illinois. On March 25, 1975, the State dismissed the previous charge of aggravated battery in the indictment of August 29, 1974 (Case No. 74 CF 45), and sought a new indictment on the charges of theft and aggravated battery plus the charge of robbery. On March 23, 1975, the defendant was re-indicted on charges of aggravated battery, robbery and theft (Case No. 75 CF 13).
The defendant moved for dismissal of the indictment of March 23, 1975, and preliminary to the hearing on this motion the State moved to entirely dismiss the indictment of August 29, 1974, under Case No. 74 CF 45.
At the hearing on the motion to dismiss the indictment of March 23, 1975, which was held on April 8, 1975, the defendant contended that the State had not complied with the Agreement on Detainers, section 3-8-9 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1003-8-9) in that he was not brought to trial within 180 days of his demand to the Illinois authorities for a speedy trial. The pertinent part of the Act reads as follows (article III(a) and (b) of the above cited Act):
"(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; provided that for a good cause shown in open court, the prisoner or his counsel 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 ...