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State v. Loera8/14/1990
390.
Because there was no violation of Rule 8.3, we look to the "general" speedy trial requirement, Rule 8.4(a), which excludes delays caused by the defendant's absence or his inability to be arrested or taken into custody in Arizona. When the defendant is held in custody without the state, as was Loera, he is absent from the state and cannot be arrested. State v. Quinonez, 119 Ariz. 208, 210, 580 P.2d 346, 348 (1978); State v. Knapp, 123 Ariz. 402, 405, 599 P.2d 855, 858 (App.1979). Accordingly, the time Loera spent in federal custody prior to conviction is excludable time for purposes of Rule 8.4(a).
The state could have done more than file a detainer, which by itself only provides notice that a prisoner is wanted for trial in another jurisdiction; further action is required by the issuing state to obtain the immediate custody of the prisoner. A.R.S. § 31-481; Mauro, 436 U.S. at 359-60, 98 S.Ct. at 1846-47; Olson, 146 Ariz. at 338, 705 P.2d at 1389. It could have filed, as Loera argues, a writ of habeas corpus ad prosequendum, the equivalent of a request for temporary custody. Mauro, id. 436 U.S. at 362, 98 S.Ct. at 1848. If temporary custody were granted, the state then would have to bring Loera to trial in the specified period of time or the charges would be dismissed. Id. at 350-51, 364, 98 S.Ct. at 1842, 1849.
Nonetheless, we conclude that by filing the detainer, the state proceeded in the proper manner and did all that it was required to do to comply with Rule 8. It would be lacking in comity and unreasonable, as well as contrary to our reading of the law, to force Arizona to request a writ of habeas corpus ad prosequendum that, if successful, would disrupt federal proceedings. Indeed, the probability of disruption of the federal proceedings was the reason given by the United States Magistrate when Loera's request to return to Mohave County was denied, a rationale also supporting the state's argument that requesting such a writ would be futile.
For the above reasons, the trial court's order dismissing the charges is reversed; the charges are reinstated, and the matter is remanded for further proceedings. We note further that all time consumed by this appeal is also excluded time under Rule 8. See State v. Sanchez, 155 Ariz. 544, 547, 747 P.2d 1243, 1246 (App.1987).
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