Fryar v. State

1968 OK CR 67, 440 P.2d 204, 1968 Okla. Crim. App. LEXIS 305

Opinion

NIX, Presiding Judge:

This is an original proceeding filed by the petitioner, Gary Wendell Fryar, seeking a writ of mandamus from this Court directing the District Court of Pontotoc County to grant him a speedy trial or dismiss the charges pending there against him. Petitioner is presently confined in the United States Penitentiary at Leavenworth, Kansas.

The principle of law involved in this case has received the consideration of this Court on numerous occasions, most recently in Hobbs v. State, Okl.Cr., 417 P.2d 934:

“Where an accused is incarcerated in a Federal Penitentiary, such incarceration is good cause for delay in bringing him to trial, even where the state authorities fail to request his delivery to the state court for trial."

“The state is not required to assume the burden of cost, incident to affording a speedy trial in returning an accused to the state, who, on his own volition, placed himself beyond the jurisdiction of the state and in the custody of the Federal Government.”

“Since prisoner is incarcerated in a penal institution outside the jurisdiction of the Court of Criminal Appeals, he is not entitled to relief by Writ of Mandamus.”

See, also, Hurst v. Pitman, 90 Okl.Cr. 329, 213 P.2d 877; Bonsor v. District Court of Cimmarron County, Okl.Cr., 303 P.2d 471; White v. Brown, Okl.Cr., 349 P.2d 509; Auten v. State, Okl.Cr., 377 P.2d 61; and Dreadfulwater v. State, Okl.Cr., 415 P.2d 493; Application of Melton, Okl.Cr., 342 P.2d 571; Head v. State, Okl.Cr., 388 P.2d 327; and in another recent decision of Angel v. State, Okl.Cr., 397 P.2d 518.

Under the conditions herewith presented, the petition for writ of mandamus wholly fails to state grounds for relief, and is accordingly denied.

BUSSEY and BRETT, JJ., concur.