Colorado § 16-19-107 - Extradition of persons not present where crime committed.

§ 16-19-107. Extradition of persons not present where crime committed.

(1) 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 in the manner provided in section 16-19-104 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 article 19 that are not otherwise inconsistent apply to such cases, even though the accused was not in that state at the time of the commission of the crime and has not fled therefrom, provided the acts for which extradition is sought would be punishable by the laws of this state if the acts occurred in this state.

(2) Except as required by federal law, the governor shall not surrender a person charged in another state as a result of the person engaging in a legally protected health-care activity, as defined in section 12-30-121 (1)(d), unless the executive authority of the demanding state alleges in writing that the accused was physically present in the demanding state at the time of the commission of the alleged offense and that thereafter the accused fled from the demanding state.

Source: L. 53: p. 316, § 6. CSA: C. 72, § 51. CRS 53: § 60-1-6. C.R.S. 1963: § 60-1-6. L. 2023: Entire section amended, (SB 23-188), ch. 68, p. 246, § 13, effective April 14.

Cross references: For the legislative declaration in SB 23-188, see section 1 of chapter 68, Session Laws of Colorado 2023.

ANNOTATION

Constitutionality. Some 44 states have adopted the procedure of this section as part of the uniform act and in no state has it been held unconstitutional for denial of equal protection or due process. Conrad v. McClearn, 166 Colo. 568, 445 P.2d 222 (1968).

This section providing for extradition of nonfugitives must be strictly construed and strictly complied with in proceedings thereunder. Matthews v. People, 136 Colo. 102, 314 P.2d 906 (1957).

It confers discretion upon governor. Upon receipt of a request under this section for the surrender of a person charged with an act resulting in a crime in the demanding state, the governor of Colorado in the exercise of his discretion may cause his arrest and surrender and finds his authority and protection under this section, and not under the constitution or laws of the United States or § 16-19-103 relating to fugitives. Matthews v. People, 136 Colo. 102, 314 P.2d 906 (1957); Olson v. People, 138 Colo. 310, 332 P.2d 486 (1958); Layher v. Van Cleave, 171 Colo. 465, 468 P.2d 32 (1970).

The rendition of a nonfugitive is permissible as a matter of executive discretion. Allen v. Leach, 626 P.2d 1141 (Colo. 1981).

State not constitutionally required to deliver nonfugitive. Where it was stipulated that appellant was a "fugitive" and that his extradition was sought under this section, the state of Colorado was not constitutionally required to deliver him to the state requesting him. Allen v. Leach, 626 P.2d 1141 (Colo. 1981).

Which is exercisable pursuant to demand. The governor of Colorado has no inherent powers of arrest and surrender and cannot proceed as a volunteer but is limited to acting pursuant to a demand or a request from the executive of a sister state, and then only in strict conformity with law. Matthews v. People, 136 Colo. 102, 314 P.2d 906 (1957).

The governor's discretion is not a completely arbitrary one, but can be exercised only upon a lawful demand or request from the executive authority of another state to surrender only those persons in this state who have been charged by the demanding state with committing an act in this state or a third state which intentionally results in a crime in the demanding state. The governor cannot proceed as a volunteer, but must act in strict conformity with the law. Conrad v. McClearn, 166 Colo. 568, 445 P.2d 222 (1968).

And warrant for fugitive ineffective where request concerns nonfugitive. A warrant issued for the arrest of defendant as a fugitive from the justice of a sister state, where the facts disclosed that he was charged with violation of the reciprocal nonsupport act and had never been in that sister state except to pass through, was unlawful and void and he cannot be extradited as a fugitive. Matthews v. People, 136 Colo. 102, 314 P.2d 906 (1957).

Where demand is made for the arrest and delivery pursuant to the constitution and laws of the United States under § 16-19-103 pertaining to fugitives, and arrest and surrender are made pursuant to the laws of the state of Colorado under this section, the warrant issued is not in accordance with the requisition; consequently, it is wholly ineffectual for any purpose. Layher v. Van Cleave, 171 Colo. 465, 468 P.2d 32 (1970).

But subsequent extradition not barred by defective prior proceeding. Prior grant of writ of habeas corpus in extradition proceedings on ground that rendition papers allege that petitioner is fugitive when it is admitted that he is not a fugitive does not bar, under doctrine of res judicata, a subsequent attempt at extradition where facts and issues are different from those raised by the first petition. Boyd v. Van Cleave, 180 Colo. 403, 505 P.2d 1305 (1973).

Extradition available to enforce support obligations. Since the enactment of the "Uniform Reciprocal Enforcement of Support Act" in Colorado there are now two distinct courses of action which a demanding state may take with respect to one who does not carry out his obligations of support to his family: (1) Extradition on a criminal charge of nonsupport; and (2) the initiation of civil proceedings under the uniform act. Either or both courses of action may be pursued, and the election lies wholly with the demanding state and the obligee. Conrad v. McClearn, 166 Colo. 568, 445 P.2d 222 (1968).

Affidavits accompanying request for extradition sufficient to show probable cause. Boyd v. Van Cleave, 180 Colo. 403, 505 P.2d 1305 (1973).

Applied in Howe v. Cronin, 197 Colo. 17, 589 P.2d 930 (1979); Morris v. Nelson, 659 P.2d 1386 (Colo. 1983); Lucero v. Martin, 660 P.2d 902 (Colo. 1983).