Attorney General: Theresa C. Lantz, Commissioner, Department of Correction, 2005-013 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

May 18, 2005

Theresa C. Lantz
Commissioner
Department of Correction
24 Wolcott Hill Road
Wethersfield, CT 06109

Dear Commissioner Lantz:

You have requested our advice on whether the Department of Correction should continue to follow its procedure of initiating speedy trial paperwork for an arrest warrant that has not been served. You advised us that the Court Operations Division of the Judicial Branch sent you a memorandum in which they indicate that the right to a speedy trial does not apply to an arrest warrant that has not been served. They attached a trial court memorandum of decision in the case of State v. Robinson, dated September 6, 2002 in support of their statement. They advised you that the courts will return any speedy trial paperwork that you send for matters in which an inmate has not yet been arrested. For the reasons discussed below, it is our opinion that you should continue to follow your procedure.

Conn. Gen. Stat. 54-82c (a) provides in relevant part as follows:

Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state's attorney or assistant state's attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information . . . .

Subsection (c) of section 54-82c states:

The warden, Community Correctional Center Administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.

In State v. Robinson, Docket No. NNH-CR02-0002608-T (September 6, 2002), Judge Blue concluded that "Sec. 54-82c applies only if, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner" and "that information [or indictment must] be filed in order to be 'pending'." (Emphasis added) Judge Blue, referring to Conn. Gen. Stat. 54-82c (a), stated that a case is not "pending" if it has not yet been filed in court. The Court Support Division of the Judicial Department interprets the Robinson decision as holding that the right to a speedy trial does not apply to an arrest warrant that has not yet been served.

On the other hand, in State v. Milton, 26 Conn. App. 698 at 708-709 (1992), affirmed, 224 Conn. 163 (1992), the Court held that whenever any correctional official acquires information that makes him aware of the existence of an untried indictment or information against a sentenced inmate, he must comply with the provision of section 54-82c (c) and inform the inmate in writing of the untried indictment or information. While Milton refers several times to "pending" cases, it does not expressly limit its holding to informations or indictments which have been filed in court.

The obligation placed on correctional officials under section 54-82c (c) is distinct from that placed on the courts and prosecuting attorneys under subsection (a) of section 54-82c. Moreover, correctional officials would not necessarily know whether a filing or service has occurred. It would appear that the court clerk's office would be in a better position to know whether the criminal proceedings are ripe for consideration under section 54-82c.

We have no way of knowing whether the holding in State v. Robinson would be approved by an appellate court, nor, if so, whether an appellate court would extend the holding of Robinson under 54-82c (a) to the application of 54-82c (c), nor how an appellate court might apply the holding in Milton to an unserved indictment or information. In light of these uncertainties, the prudent course is for the Department to continue to provide notice to inmates under 54-82c (c) of all untried indictments or informations of which it becomes aware, whether they have been served or not. This can cause no harm beyond a degree of inconvenience. On the other hand, failure to provide notice creates at least some risk that some valid criminal charges will ultimately be dismissed because of procedural error.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


Henri Alexandre
Assistant Attorney General


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