Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Habeas
Corpus; Speedy trial/Interstate compact on
U.S. Constitution, Article IV, Sec 2: "A
Person charged in any State with Treason, Felony, or other Crime, who shall flee
from Justice, and be found in another State, shall on demand of the executive
Authority of the State from which he fled, be delivered up, to be removed to the
State having Jurisdiction of the Crime."
Chapter 2963 -- Extradition.
R.C. 2151.61 -- Extradition of juveniles.
State v. Owens,
181 Ohio App. 3d 725,
2009-Ohio-1508 – Defendant was jailed in Pennsylvania when sentencing date
came up in Ohio. He waived extradition, but the Pennsylvania authorities refused
to release him. During the following thirteen months the state failed to
initiate formal extradition proceedings or pursue alternatives such as a video
conference or obtain an agreement to be sentenced in absentia. Trial court lost
the authority to impose a sentence, though the convictions stand. IAD doesn‘t
require dismissal charges when conviction has been entered and the defendant is
merely awaiting sentencing.
Toler, 174 Ohio App. 3d 335,
2007-Ohio-6967 -- Defendant skipped out before sentencing
for domestic violence. Court ordered restitution payable to the
Sheriff for the cost of extraditing him from Iowa. Reversed.
With limited exceptions, government entities are not victims.
State argued error was harmless because costs could have been
assessed as costs of prosecution, but this is rejected as there
was no indication the procedure specified in
2949.14 was followed, and in any event, such reimbursement
is payable to the clerk, not the Sheriff.
State v. Nunez, 164 Ohio App. 3d 420,
2005-Ohio-6261 -- Defendant was extradited from Mexico to stand trial for two
murders. Mexico was concerned that he not face the death penalty or serving life
without parole. Documents from the county prosecutor and Justice Department
offered assurances the maximum penalty would be thirty to life. Additional time
on firearm specifications was beyond the agreement and must be deleted from the
State v. Sharrar, Lucas App. No.
L-03-1257 -- An entry finding the state has proven identity in an extradition
case is not a final appealable order.
Sharrar v. Telb, Lucas App. No. L-03-1313,
2003-Ohio-6377 -- Habeas action challenged increase in bail after arrest on
governor's warrant. ¶ 6: "...(T)he trial court was authorized to keep petitioner
in confinement for a total of 90 days while awaiting service of the governor's
warrant. Petitioner's release on OR or bond was at the discretion of the trial
court. After petitioner was served and arrested pursuant to the official
governor's warrant, a new phase of extradition proceedings began. The trial
court was then authorized to impose more stringent conditions in order to assure
petitioner's appearance. Therefore, since the trial court had jurisdiction to
increase the bond, petitioner is not entitled to be released."
State v. James-Neville, Belmont App.
No. 03 BE 68,
2004-Ohio-6840 -- Defendant absconded between entry of plea and
sentencing hearing. He is entitled to jail time credit for the time spent in
custody in Pennsylvania awaiting extradition as
R.C. 2967.191 reaches
confinement for any reason arising out of the offense for which the prisoner was
convicted and sentenced.
Wolfe, 114 Ohio St. 3d 151,
2007-Ohio-3761 -- Waiver of extradition in response to the
request of one Ohio county makes the subject available for
prosecution in all counties.
Puerto Rico v. Branstad (1987), 483 U.S.
219 -- The command of the extradition clause does not allow the governor of the
asylum state discretion in delivering up fugitives. The state seeking
extradition of a fugitive may resort to the federal court to compel the
executive of the asylum state to deliver fugitives upon proper demand.
California v. Superior Court of California
(1987), 482 U.S. 400 -- Under the Extradition Clause and the Extradition Act of
1793 the asylum state may do no more than ascertain (1) that the extradition
documents on their face are in order, (2) that the subject has been charged with
a crime in the demanding state, (3) that the subject is the person named in the
request for extradition, and (4) that he is a fugitive. The asylum state may not
inquire into the sufficiency of the indictment under which extradition is
sought. Also see Michigan v. Doran (1978), 439 U.S. 282.
In re Terry (1988), 51 Ohio App. 3d 133 --
In addition to the four factors enumerated in California v. Superior Court of
California (1987), 482 U.S. 400 and Michigan v. Doran (1978), 439
U.S. 282, the court states that Ohio courts may consider two additional matters:
(1) Whether the extradition is to enforce a civil liability; and (2) whether the
petitioner asserting an invalid arrest under the governor's warrant is able to
rebut its presumed validity by proof beyond a reasonable doubt. Also see State, ex rel. Gilpin, v. Stokes (1984), 19 Ohio App. 3d 99.
In re Rowe (1981), 67 Ohio St. 2d 115 --
Extradition to another state may be contested by means of habeas corpus.
Under federal law. a demanding state is not entitled to the return of one who
was not corporally present in that state at the time the offense was committed
(Ohio law is broader). The accused bears the burden of proving beyond a
reasonable doubt that he is not a fugitive from the demanding state. Also see
State v. Barone (1984), 21 Ohio App. 3d 97; Bradley v. Hickey (1982),
70 Ohio St. 2d 277.
In re Hollander (1981), 2 Ohio App. 3d 282
-- In a habeas action contesting extradition, the court may not consider
the merits of the case or the guilt or innocence of the accused.
Carpenter v. Jamerson (1982), 69 Ohio St.
2d 308 -- Syllabus: "A proceeding in habeas corpus brought in an asylum state by
a fugitive from justice arrested on a warrant of extradition is a summary
proceeding and very limited in scope. (2) The term 'fugitive from justice' as
contemplated by the extradition statutes includes an individual who violates the
conditions of his probation."
Ruther v. Sweeney (1956), 75 Ohio Law Abs.
385 -- Bail may be set during pendency of a habeas action contesting
extradition unless the underlying offense is not bailable. Also see
Helm v. Jago (1977), 50 Ohio St. 2d 168,
169 -- "The release of an accused by one sovereignty to another, so that the
receiving sovereignty may enforce its criminal laws against him, does not
constitute a waiver of jurisdiction over the accused, nor does it estop the
releasing state from subsequently either enforcing a previously imposed sentence
or subjecting the accused to further criminal proceedings."
State ex rel. Childs v. Wingard (1998), 83
Ohio St. 3d 346 -- Petitioner was extradited on a charge of murder, but was
ultimately reindicted and convicted of aggravated murder. According to
2963.26 he could be tried for any offense committed in this state. Ex parte
McKnight (1891), 48 Ohio St. 588 indicating otherwise predated an earlier
version of this statute and is not controlling.
State v. Adkins (1992), 80 Ohio App. 3d
817, 822 -- The illegible signature of judge on out of state arrest warrant does
not invalidate extradition documents.
In re Extradition of Adams (1989), 63 Ohio
App. 3d 638 -- Since Ohio resident mother's denial of visitation was an offense
under California law, where a visitation order had been made in a paternity
action, she could be extradited to that state on such a charge. Also see In
re Harris (1959), 170 Ohio St. 151.
Brown v. Nutsch (8th Cir. 1980), 619 F. 2d
758, 762 -- "Force, improprieties or irregularities in the extradition process
do not invalidate a subsequent conviction."
Goree v. Cunningham (1985), 18 Ohio St. 3d
160 -- Since Evid. R. 101(C)(3) provides that the Rules of Evidence do not apply
at extradition hearings, hearsay testimony of an out of state police officer as
to identification of defendant's photo by witnesses was properly admitted.
Statutory requirement that a copy of the arrest warrant be produced is merely
Hanson v. Smith (1990), 67 Ohio App. 3d
420 -- Photographs and other materials in "rendition package" forwarded by
California authorities were sufficient to identify person in custody in Ohio as
In re Complaint for Habeas Corpus of Beverly
(1992), 75 Ohio App. 3d 540 -- A person may still be a fugitive even though
there was an adequate opportunity for prosecution to be initiated before he left
the state seeking extradition.
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