Burden v. White

471 S.W.2d 325, 1971 Ky. LEXIS 242

Opinion

MILLIKEN, Chief Justice.

This is a petition for a writ of mandamus to order the respondent judge to docket petitioner’s case for trial as speedily as consistent with the needs of justice and in the event it is not done, to dismiss the indictment.

The petitioner, Burden, is serving a sentence in federal prison in Indiana. On August 21, 1968, he was indicted in Lyon County, Kentucky, for escape from prison and a detainer was received at the federal penitentiary in December, 1968. He alleges his previous motion for speedy trial (made on August 6, 1969) was not ruled on. On April 15, 1970, he filed a motion to dismiss the charges against him and in return received a letter from the Commonwealth attorney indicating a trial date might be secured in August or December 1970. Nothing happened. In February, 1971, he filed a motion to dismiss the charges, which he alleges has not been ruled on.

The response states that petitioner will not be tried until completion of his federal sentence because neither the state nor Lyon County will pay the expense of bringing him back. Under Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L. Ed.2d 607 (1969) and Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed. 26 (1970), the Commonwealth of Kentucky has an obligation to make a diligent good faith effort to bring petitioner back for trial.

He is entitled either to have a trial date promptly set and good faith efforts to arrange for his transportation made, or to have the charges against him dismissed.

All concur.