No. 99CA1677.Colorado Court of Appeals.
August 16, 2001. Rehearing Denied November 1, 2001 Certiorari Denied April 8, 2002
Jefferson County District Court No. 89CR0406, Honorable Ruthanne N. Polidori, Judge.
ORDER AFFIRMED
Division IV
Ruland and Rothenberg, JJ., concur
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Ken Salazar, Attorney General, Clemmie Parker Engle, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David S. Kaplan, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE VOGT
[1] Defendant, Floyd David Slusher, appeals the trial court’s order denying his motion for postconviction relief pursuant to Crim. P. 35(c). We affirm. [2] In February 1989, while on parole following a conviction for sexual assault on a child, defendant was arrested for a parole violation and taken to the Jefferson County jail. Five days after his arrest, he was charged in a new case with three counts of sexual exploitation of a child. The information was subsequently amended to include additional counts of sexual exploitation of a child, sexual assault on a child, and habitual sex offender. [3] Defendant remained in the Jefferson County jail until, after two continuances to which he consented, trial was held on the new charges in April 1990. The jury returned guilty verdicts on the sexual exploitation charges, and defendant pled guilty to thePage 649
habitual sex offender count. His conviction and sentence were affirmed on direct appeal. People v. Slusher, 844 P.2d 1222 (Colo.App. 1992). After the supreme court denied certiorari, the mandate issued in February 1993.
[4] In 1994, defendant filed a pro se Crim. P. 35(c) motion, raising several allegations of ineffective assistance of counsel as well as other claims. The trial court appointed counsel, who filed a supplemental brief in support of defendant’s motion. After a hearing, the court denied the motion. A division of this court affirmed. People v. Slusher, (Colo.App. No. 97CA1591, Oct. 8, 1998) (not selected for official publication). [5] In 1999, defendant filed another pro se Crim. P. 35(c) motion, contending for the first time that his rights under the Uniform Mandatory Disposition of Detainers Act (UMDDA), § 16-14-101, et seq., C.R.S. 2000, had been violated. Specifically, he alleged that the superintendent of the Jefferson County jail had failed to inform him in writing of the untried charges against him and of his right to request a speedy disposition of the charges, as required under § 16-14-102(2), C.R.S. 2000. Defendant further contended that, because the failure to so inform him within one year of the filing of a detainer entitled him to dismissal of the charges pursuant to § 16-14-102(3), C.R.S. 2000, the trial court had lost jurisdiction before the April 1990 trial was held. Finally, defendant asserted that his motion was not time-barred under § 16-5-402(1), C.R.S. 2000, both because it involved a jurisdictional issue and because his failure to raise the issue earlier was attributable to the ineffective assistance of his trial, appellate, and postconviction counsel. [6] The trial court denied defendant’s motion without a hearing. It found that the motion was time-barred and that, even if the motion were deemed timely, it lacked merit because defendant was not in the custody of the department of corrections (DOC) prior to his conviction and the UMDDA thus did not apply to him. I.
[7] Defendant contends that, as a result of the superintendent’s noncompliance with § 16-14-102(3), the trial court lost jurisdiction over the untried charges before his trial; thus, he argues, his postconviction motion raised a jurisdictional defect and should not have been dismissed as time-barred. We disagree.
(1) Any person who is in the custody of the department of corrections pursuant to section 16-11-301 or parts 1 and 2 of article 13 of this title may request final disposition of any untried indictment, information, or criminal complaint pending against him in this state.
. . .
[12] A provision analogous to § 16-14-102(2) is found in the IAD at § 24-60-501, art. III(c), C.R.S. 2000, which states:(2) It is the duty of the superintendent of the institution where the prisoner is confined to promptly inform each prisoner, in writing, of the source and nature of any untried indictment, information, or criminal complaint against him of which the superintendent has knowledge, and of the prisoner’s right to make a request for a final disposition thereof.
(3) Failure of the superintendent of the institution where the prisoner is confinedPage 650
to inform a prisoner, as required by subsection (2) of this section, within one year after a detainer from this state has been filed with the institution where the prisoner is confined shall entitle the prisoner to a dismissal with prejudice of the indictment, information, or criminal complaint.
[13] The IAD includes no direct analog to § 16-14-102(3). However, like § 16-14-102(3), the IAD makes dismissal with prejudice the remedy for a violation of the prisoner’s rights. See § 24-60-501, art. V(c), C.R.S. 2000.The warden, commissioner of corrections, or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information, or complaint on which the detainer is based.
A.
[14] We initially note that, as the People concede and contrary to the trial court’s ruling, the UMDDA provisions set forth above were applicable here because defendant was “in the custody of the department of corrections” even though he was in county jail. See People v. Campbell, 742 P.2d 302 (Colo. 1987) (although held in county jail, defendant on parole was in DOC custody for purposes of § 16-14-102(1)).
arise only if a detainer has been filed, see People v. Morgan, 712 P.2d 1004 (Colo. 1986), the record is insufficient to permit us to conclude, as the People argue, that no detainer was or would have been filed as to the new charges.
B.
[16] However, even if we assume a detainer was filed, we conclude that any violation of the UMDDA notification requirement did not deprive the trial court of subject matter jurisdiction.
[22] (Emphasis supplied.) [23] In People v. Mueller, 851 P.2d 211 (Colo.App. 1992), a division of this court construed § 16-14-104(1) in accordance with its plain language and held that when the defendant’s request pursuant to this section for trial within ninety days was not granted and the ninety-day requirement was not waived, the trial court lacked jurisdiction to render its judgment of conviction. [24] In People v. Carroll, 939 P.2d 452 (Colo.App. 1996), another division held that the defendant had waived his claim of an IAD violation — which, as noted, would have entitled him to dismissal with prejudice — by pleading guilty. In so holding, the division distinguished Mueller on the basis that the IAD provisions did not contain the express jurisdictional limitation set forth in § 16-14-104(1). [25] Similarly here, we conclude that a violation of § 16-14-102(3), like a violation of § 16-14-102(2), does not automatically deprive the trial court of jurisdiction to proceed. Thus, defendant may not avoid the § 16-5-402(1) time bar on the basis that his motion alleged a jurisdictional defect. [26] In light of our resolution of this issue, we do not reach the People’s alternative argument that defendant waived his UMDDA claim by failing to assert it before trial.If, after such a request, the indictment, information, or criminal complaint is not
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brought to trial within that period, no court of that state shall any longer have jurisdiction thereof, nor shall the untried indictment, information, or criminal complaint be of any further force or effect, and the court shall dismiss it with prejudice.
II.
[27] We further agree with the trial court that defendant did not allege facts in his motion that would excuse his failure to raise the UMDDA issue within three years after his conviction became final.
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