Misek v. State

1969 OK CR 67, 450 P.2d 856, 1969 Okla. Crim. App. LEXIS 355

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 12, 1969
• Docket: No. A-15102
• Status: Published

Opinion

MEMORANDUM OPINION AND ORDER

PER CURIAM:

This is an original proceeding in which Jerry William Misek has filed with this court for a writ of mandamus seeking a speedy trial or dismissal of the charges pending against him in Washington County, Oklahoma. Petitioner alleges that he is presently confined in the United States Penitentiary at Leavenworth, Kansas, and as a result of a criminal charge of forgery being filed against him in Washington County that a detainer has been placed against him at the United States Penitentiary. Petitioner further alleges that he requested that Washington County give him a speedy trial on approximately April 20, 1968, and that such request was denied.

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 (decided January 20, 1969), 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 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.

Petitioner has filed for a writ of mandamus. However, under the allegations the appropriate remedy in this court would be a writ of habeas corpus ad prosequen-dum and this application will be considered as such. Under the allegations herein we conclude that Petitioner is entitled to relief in that he has made a demand for a speedy trial and the prosecuting attorney is obligated to seek temporary custody to bring him to trial on the pending criminal charges or dismiss the same.

Therefore, the District Attorney for Washington County, should at once seek temporary custody of Petitioner, at state expense where necessary, from federal officials in order to proceed on any pending criminal charges filed against him in Washington 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 Washington County is directed to dismiss the pending criminal charge and to so notify the appropriate federal penal officials. Writ of habeas corpus ad prose-quendum 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.