Fryar v. Oklahoma County

1969 OK CR 72, 450 P.2d 907, 1969 Okla. Crim. App. LEXIS 362

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 12, 1969
• Docket: No. A-14841
• Status: Published

Opinion

MEMORANDUM OPINION AND ORDER

PER CURIAM.

This is an original proceeding in which Kerma Sue Walters Fryar, presently confined in the United States Reformatory in Alderson, West Virginia, has filed with this court for a writ of habeas corpus ad prosequendum seeking a speedy trial or dismissal of criminal charges filed in the District Court of Oklahoma County which has caused a detainer to be placed against Petitioner at the United States Reformatory. Petitioner alleges that she has filed for a writ of habeas corpus ad prosquendum in the District Court of Oklahoma County on approximately April 17, 1968, requesting a speedy trial or dismissal of the warrant, No. 36782, filed in Oklahoma County charging Petitioner with the crime of carrying a concealed weapon. No action was taken on this request. Petitioner has now filed this action as an indigent seeking relief from this court.

Adopted this day in our decision in Naugle v. Freeman, Okl.Cr., 450 P.2d 904, this Court acknowledged and implemented the ruling of the United States Supreme Court in Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, decided January 20, 1969, to the effect that the right to a speedy trial on pending state criminal charges is not suspended or defeated by the accused’s custody in a federal penal institution outside the state. Where criminal charges have been filed in an Oklahoma court the district attorney has a constitutional duty to make a diligent, good faith effort to bring the accused before the court for trial. This obligation of the state is not absolved by the accused’s inability to pay the expenses involved in bringing him into the state and returning him to federal custody. Necessarily this court’s former decisions inconsistent with this ruling have been overruled.

We therefore conclude that Petitioner is entitled to the relief prayed for herein. Petitioner has made a demand for a speedy trial and the prosecuting attorney is obligated to seek temporary custody of Petitioner for trial or to dismiss the pending charge.

IT IS THEREFORE ORDERED that the District Attorney for the Seventh Judicial District of Oklahoma should at once seek temporary custody of Petitioner, at state expense where necessary, from federal officials in order to proceed on the charge of carrying a concealed weapon filed in Oklahoma County; or if the District Attorney within a reasonable time fails to bring Petitioner before an examining magistrate to answer said charge, then the District Court for the Seventh Judicial District of Oklahoma is directed to dismiss this pending cause and to so notify the federal penal officials. Writ of habeas corpus ad prosequendum granted.

This application was assigned to the Referee, Mr. Penn Lerblance, by the Presiding Judge of this Court. The foregoing findings of facts and conclusions of law were submitted by the Referee and approved and adopted by the Court.