Section 976.03. Uniform criminal extradition act.

 

(1)   Definitions. In this section, “governor" includes any person performing the functions of governor by authority of the law of this state. “Executive authority" includes the governor, and any person performing the functions of governor in a state other than this state, and “state" referring to a state other than this state refers to any other state or territory organized or unorganized of the United States of America.

(2)   Criminals to be delivered upon requisition. Subject to the qualifications of this section, and the provisions of the U.S. constitution controlling, and acts of congress in pursuance thereof, it is the duty of the governor of this state to have arrested and delivered up to the executive authority of any other state of the United States any person charged in that state with treason, felony or other crime, who has fled from justice and is found in this state.

(3)   Form of demand. No demand for the extradition of a person charged with a crime in another state shall be recognized by the governor unless in writing alleging, except in cases arising under sub. (6) , that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter the accused fled from the state, and accompanied by a copy of an indictment found or by an information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of the person's bail, probation, extended supervision or parole. The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.

(4)   Governor may investigate case. When a demand shall be made upon the governor of this state by the executive authority of another state for the surrender of a person so charged with a crime, the governor may call upon the attorney general or any prosecuting officer in this state to investigate or assist in investigating the demand, and to report to the governor the situation and circumstances of the person so demanded, and whether the person ought to be surrendered.

(5)   Extradition of persons imprisoned or awaiting trial in another state or who have left the demanding state under compulsion.

(a) When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against the person in another state, the governor of this state may agree with the executive authority of such other state for the extradition of such person before the conclusion of such proceedings or the person's term of sentence in such other state, upon condition that such person be returned to such other state at the expense of this state as soon as the prosecution in this state is terminated.

(b) The governor of this state may also surrender on demand of the executive authority of any other state any person in this state who is charged in the manner provided in sub. (23) with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.

(6)   Extradition of persons charged with having committed a crime in the demanding state by acts done in this or some other state. 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 as provided in sub. (3) with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand; and the provisions of this section 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.

(7)   Issue of governor's warrant of arrest; its recitals. If the governor shall decide that the demand should be complied with, the governor shall sign a warrant of arrest, which shall be sealed with the state seal, and be directed to a sheriff, marshal, coroner or other person whom the governor may think fit to entrust with the execution thereof; and the warrant must substantially recite the facts necessary to the validity of its issue.

(8)   Manner and place of execution. The warrant shall authorize the officer or other person to whom directed to arrest the accused at any place where the accused may be found within the state and to command the aid of all sheriffs and other peace officers in the execution of the warrant, and to deliver the accused subject to this section, to the duly authorized agent of the demanding state.

(9)   Authority of arresting officer. Every such officer or other person empowered to make the arrest shall have the same authority in arresting the accused to command assistance therein, as sheriffs and other officers have by law in the execution of any criminal process directed to them, with the like penalties against those who refuse their assistance.

(10)   Rights of accused; application for habeas corpus. No person arrested upon such warrant may be delivered over to the agent whom the executive authority demanding the person shall have appointed to receive the person unless the person shall first be taken forthwith before a judge of a court of record in this state, who shall inform the person of the demand made for the person's surrender and of the crime with which the person is charged, and that the person has the right to demand and procure legal counsel; and if the prisoner or the prisoner's counsel shall state that the prisoner desires to test the legality of the prisoner's arrest, the judge of such court of record shall fix a reasonable time to be allowed the prisoner within which to commence an action for habeas corpus. When such action is commenced, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody, and to the said agent of the demanding state.

(11)   Penalty for noncompliance with preceding section. Any officer who delivers to the agent for extradition of the demanding state a person in the officer's custody under the governor's warrant in disobedience to sub. (10) shall be guilty of a misdemeanor, and on conviction shall be fined not more than $1,000, or be imprisoned not more than 6 months or both.

(12)   Confinement in jail when necessary.

(a) The officer or person executing the governor's warrant of arrest, or the agent of the demanding state to whom the prisoner may have been delivered, may when necessary confine the prisoner in the jail of any county or city through which he or she may pass; and the keeper of such jail must receive and safely keep the prisoner until the person having charge of the prisoner is ready to proceed on his or her route, such person being chargeable with the expense of keeping.

(b) The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this state with such a prisoner for the purpose of immediately returning such prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he or she may pass; and the keeper of such jail must receive and safely keep the prisoner until the officer or agent having charge of the prisoner is ready to proceed on his or her route, such officer or agent, however, being chargeable with the expense of keeping; provided, however, that such officer or agent shall produce and show to the keeper of such jail satisfactory written evidence of the fact that the officer or agent is actually transporting such prisoner to the demanding state after a requisition by the executive authority of such demanding state. Such prisoner shall not be entitled to demand a new requisition while in this state.

(13)   Arrest prior to requisition. Whenever any person within this state shall be charged on the oath of any credible person before any judge of this state with the commission of any crime in any other state and, except in cases arising under sub. (6) , with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation, extended supervision or parole, or whenever complaint shall have been made before any judge in this state setting forth on the affidavit of any credible person in another state that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime, and, except in cases arising under sub. (6) , has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or having broken the terms of his or her bail, probation, extended supervision or parole, and is believed to be in this state, the judge shall issue a warrant directed to any peace officer commanding the officer to apprehend the person named therein, wherever the person may be found in this state, and to bring the person before the same or any other judge or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit; and a certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.

(14)   Arrest without a warrant. The arrest of a person may be lawfully made also by an officer or a private citizen without a warrant upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year; but when so arrested the accused must be taken before a judge with all practicable speed and complaint must be made against the accused under oath setting forth the ground for the arrest as in sub. (13) ; and thereafter the accused's answer shall be heard as if the accused had been arrested on a warrant.

(15)   Commitment to await requisition; bail. If from the examination before the judge it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under sub. (6) , that the person held has fled from justice, the judge must, by a warrant reciting the accusation, commit the person held to the county jail for such a time not exceeding 30 days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in sub. (16) , or until the accused shall be legally discharged.

(16)   Bail; in what cases; conditions of bond. Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge in this state may admit the person arrested to bail by bond, with sufficient sureties, and in such sum as the judge deems proper, conditioned for the prisoner's appearance before the judge at a time specified in such bond, and for the prisoner's surrender, to be arrested upon the warrant of the governor of this state.

(17)   Extension of time of commitment; adjournment. If the accused is not arrested under warrant of the governor by the expiration of the time specified in the warrant or bond, a judge may discharge the accused or may recommit the accused for a further period not to exceed 60 days, or may again take bail for the accused's appearance and surrender, as provided in sub. (16) , but within a period not to exceed 60 days after the date of such new bond.

(18)   Forfeiture of bail. If the prisoner is admitted to bail, and fails to appear and surrender himself or herself according to the conditions of his or her bond, the judge, by proper order, shall declare the bond forfeited and order the prisoner's immediate arrest without warrant if the prisoner be within this state. Recovery may be had on such bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.

(19)   If a prosecution has already been instituted in this state. If a criminal prosecution has been instituted against such person under the laws of this state and is still pending, the governor at the governor's discretion either may surrender the person on the demand of the executive authority of another state, or may hold the person until the person has been tried and discharged, or convicted and punished in this state.

(20)   Guilt or innocence of accused, when inquired into. The guilt or innocence of the accused as to the crime of which the accused is charged may not be inquired into by the governor or in any proceeding after the demand for extradition accompanied by a charge of crime in legal form as above provided shall have been presented to the governor, except as it may be involved in identifying the person held as the person charged with the crime.

(21)   Governor may recall warrant or issue alias. The governor may recall his or her warrant of arrest, or may issue another warrant whenever he or she deems proper.

(22)   Fugitives from this state, duty of governor. Whenever the governor of this state shall demand a person charged with crime or with escaping from confinement or breaking the terms of his or her bail, probation, extended supervision or parole in this state from the executive authority of any other state, or from the chief justice or an associate justice of the district court of the United States for the District of Columbia authorized to receive such demand under the laws of the United States, the governor shall issue a warrant under the seal of this state, to some agent, commanding the agent to receive the person so charged if delivered to the agent and convey the person to the proper officer of the county in this state in which the offense was committed.

(23)   Manner of applying for requisition.

(a) When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the governor his or her written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against the person, and the approximate time, place and circumstances of its commission, the state in which the person is believed to be, including the location of the accused therein, at the time the application is made and certifying that, in the opinion of the said prosecuting attorney the ends of justice require the arrest and return of the accused to this state for trial, and that the proceeding is not instituted to enforce a private claim.

(b) When the return to this state is required of a person who has been convicted of a crime in this state and has escaped from confinement or broken the terms of his or her bail, probation, extended supervision or parole, the prosecuting attorney of the county in which the offense was committed, the secretary of corrections, or the warden of the institution or sheriff of the county from which escape was made, shall present to the governor a written application for a requisition for the return of the person, in which application shall be stated the name of the person, the crime of which the person was convicted, the circumstances of escape from confinement or of the breach of the terms of bail, probation, extended supervision or parole, and the state in which the person is believed to be, including the location of the person therein at the time application is made.

(c) The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by 2 certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to a judge, stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The prosecuting officer, parole commission, warden or sheriff may also attach such further affidavits and other documents in duplicate as he, she or it deems proper to be submitted with the application. One copy of the application, with the action of the governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the governor to remain of record in that office. The other copies of all papers shall be forwarded with the governor's requisition.

(24)   Expenses of extradition. The compensation of the agent of the demanding state shall be $8 per day for the time necessarily devoted to the performance of the agent's duties, and the agent's actual and necessary expenses, which compensation and expenses shall be allowed by the county board of the county in which the crime was committed, upon presentation to said board of a verified account, stating the number of days the agent was engaged and the items of expense incurred while acting as such agent.

(25)   Assistants to agent returning fugitive. If the district attorney certifies in writing that it is necessary or desirable, one or more peace officers may accompany said agent and shall be entitled to compensation at the rate of $5 per day, unless the county board by resolution establishes a different rate, and to their actual and necessary expenses. Such compensation and expenses shall be claimed and allowed as provided in sub. (24) and the said certificate of the district attorney shall be attached to the verified account of such officer for such services. While so engaged, said officer shall be deemed an officer of this state and shall use all proper means to assist the agent to retain the custody of the prisoner.

(26)   Exemption from civil process. A person brought into this state by, or after waiver of, extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceeding to answer which the person is being or has been returned, until the person has been convicted in the criminal proceeding, or, if acquitted, until the person has had reasonable opportunity to return to the state from which the person was extradited.

(27)   Written waiver of extradition proceedings.

(a) Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his or her bail, probation, extended supervision or parole may waive the issuance and service of the warrant provided for in subs. (7) and (8) and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that the person consents to return to the demanding state; however, before such waiver shall be executed or subscribed by such person the judge shall inform such person of the person's rights to the issuance and service of a warrant of extradition and to commence an action for habeas corpus as provided in sub. (10) .

(b) If and when such consent has been duly executed it shall forthwith be forwarded to the office of the governor of this state and filed therein. The judge shall direct the officer having such person in custody to deliver forthwith such person to the duly accredited agent or agents of the demanding state, and shall deliver or cause to be delivered to such agent or agents a copy of such consent. Nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state.

(28)   Nonwaiver by this state. Nothing in this section shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for crime committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under this section which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or jurisdiction in any way whatsoever.

(29)   No right of asylum. After a person has been brought back to this state by, or after waiver of, extradition proceedings, the person may be tried in this state for other crimes which the person may be charged with having committed here, as well as that specified in the requisition for the person's extradition.

(30)   Interpretation. This section shall be so interpreted as to make uniform the law of those states which enact it.

1971 c. 40 s. 93 ; 1971 c. 298 s. 26 (2) to (4); 1981 c. 289 ; 1989 a. 31 ; 1993 a. 486 ; 1995 a. 225 ; 1997 a. 283 ; 2009 a. 28 ; 2011 a. 38 . Judicial Council Note, 1981: References in subs. (10) and (27) (a) to a “writ" of habeas corpus have been removed because that remedy is now available in an ordinary action. See s. 781.01, stats., and the note thereto. [Bill 613-A] Alibi or questions of guilt or innocence are beyond the scope of inquiry in a habeas corpus proceeding. Extradition is allowed even though the accused did no act in the foreign state and has not fled from that state. State ex rel. Welch v. Hegge, 54 Wis. 2d 482 , 195 N.W.2d 669 (1972). An extradition proceeding is not subject to collateral attack in a probation revocation hearing. State ex rel. Hanson v. DHSS, 64 Wis. 2d 367 , 219 N.W.2d 267 (1974). A request by the demanding state for extradition from Wisconsin of a fugitive accused of violation of the terms of probation need not be accompanied by an affidavit sworn before a magistrate, but is sufficient under sub. (3), if included therewith are copies of the judgment of conviction, or sentence imposed, together with a statement by the executive authority that the fugitive has broken the terms of the probation. State ex rel. Holmes v. Spice, 68 Wis. 2d 263 , 229 N.W.2d 97 (1976). As indicated by the presence of a restriction in other uniform acts adopted by Wisconsin conditioning their application to other states with the same or similar acts and the absence of such a limitation in the Uniform Criminal Extradition Act, applicability of the statute is not affected in Wisconsin by the fact that a state demanding extradition has not adopted the act. State v. Hughes, 68 Wis. 2d 662 , 229 N.W.2d 655 (1975). Only the asylum state, and not the defendant, has a constitutional right to extradition. State ex rel. Niederer v. Cady, 72 Wis. 2d 311 , 240 N.W.2d 626 (1976). Sub. (14) was not intended to repudiate the common law rule that an arrest may be made on probable cause to believe that the subject had committed a crime in another state, irrespective of a lack of a complaint or warrant in that state. Desjarlais v. State, 73 Wis. 2d 480 , 243 N.W.2d 453 (1976). The scope of inquiry in extradition habeas corpus cases is discussed. State v. Ritter, 74 Wis. 2d 227 , 246 N.W.2d 552 (1976). There is no right to a hearing before the governor in extradition proceedings under this section. The mode or manner of a person's departure from the state does not affect the status of a fugitive from justice. State ex rel. Jackson v. Froelich, 77 Wis. 2d 299 , 253 N.W.2d 69 (1977). An appropriate issue for the habeas corpus court under sub. (10) is not whether a warrant was properly issued in the demanding state, but whether, given properly authenticated documents, probable cause is stated that justifies the issuance of a governor's warrant in the asylum state. State ex rel. Sieloff v. Golz, 80 Wis. 2d 225 , 258 N.W.2d 700 (1977). A convict paroled from federal prison in the state was a “fugitive from justice" subject to extradition by the demanding state. State ex rel. O'Connor v. Williams, 95 Wis. 2d 378 , 290 N.W.2d 533 (Ct. App. 1980). Although the sending state could retake a compact parolee under s. 57.13 [now s. 304.13] without process, if it chooses to extradite the parolee it must meet extradition requirements. State ex rel. Reddin v. Meekma, 99 Wis. 2d 56 , 298 N.W.2d 192 (Ct. App. 1980). Affirmed. 102 Wis. 2d 358 , 306 N.W.2d 664 (1981). No waiver of jurisdiction will be found unless waiver was manifestly intended by the demanding state at the time it yielded to another sovereignty. State ex rel. Graves v. Williams, 99 Wis. 2d 65 , 298 N.W.2d 392 (Ct. App. 1980). If the demanding state has not a made judicial determination of probable cause or if documents do not show prima facie validity, the Sieloff analysis appears to be appropriate and not in conflict with controlling federal law in Michigan v. Doran . State v. Stone, 111 Wis. 2d 470 , 331 N.W.2d 83 (1983). The court erred in refusing to allow the defendant to introduce evidence that he was not a fugitive from justice. State ex rel. Rodencal v. Fitzgerald, 164 Wis. 2d 411 , 474 N.W.2d 795 (Ct. App. 1991). A demanding state's extradition documents are in order when they include a warrant issued by a magistrate from the demanding state who is statutorily required to make a finding of probable cause. State ex rel. Ehlers v. Endicott, 187 Wis. 2d 57 , 523 N.W.2d 189 (Ct. App. 1994). The 30 and 60-day periods for detention under subs. (15) and (17) do not apply to persons already in detention. State ex rel. Ehlers v. Endicott, 188 Wis. 2d 57 , 523 N.W.2d 189 (Ct. App. 1994). A waiver of extradition and this section expressly gave Wisconsin the right to the petitioner's custody to serve a Wisconsin sentence imposed while the prisoner was serving a sentence in Nevada. At the completion of the Wisconsin sentence, the scope and purpose of the waiver and this section were satisfied and completed. Nothing in the waiver or this section governed or guaranteed future events. Specifically, the petitioner had no right or legitimate expectation that he would be returned to Nevada upon the completion of his Wisconsin sentence or of immunization from potential commitment proceedings under ch. 980. Pharm v. Bartow, 2005 WI App 215 , 287 Wis. 2d 663 , 706 N.W.2d 693 , 04-0583 . Affirmed. 2007 WI 13 , 298 Wis. 2d 702 , 727 N.W. 2d 1 , 04-0583 . When a Wisconsin prisoner is transported out of state for emergency medical care, acting under s. 976.03 is required. 80 Atty. Gen. 41 . Once the governor of an asylum state has acted on an extradition request based on a demanding state's judicial determination that probable cause existed, no further inquiry may be had on that issue in the asylum state. Michigan v. Doran, 439 U.S. 282 (1978). Under the federal extradition act, federal courts have the power to compel a state governor to extradite a fugitive. Puerto Rico v. Branstad, 483 U.S. 219 (1987).