
    Eugene J. TEAGLE, Petitioner, v. STATE of Oklahoma, Respondent.
    No. A-15103.
    Court of Criminal Appeals of Oklahoma.
    Feb. 12, 1969.
    Eugene J. Teagle, pro se.
    No appearance for State.
   MEMORANDUM OPINION AND ORDER

PER CURIAM.

This is an original proceeding in which Eugene J. Teagle has filed with this court for a writ of mandamus seeking a speedy trial or a dismissal of the criminal charges pending against him in Oklahoma County, Oklahoma. Petitioner alleges that he is presently confined at the United States Penitentiary in Leavenworth, Kansas, and as a result of the criminal charges of escape and robbery with firearms being filed in Oklahoma County, a detainer has been placed against him at the United States Penitentiary. Petitioner alleges that he has asked for a speedy trial on the Oklahoma charges and that his request has been 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 (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 prosequendum and his application will be considered as such. Under the allegations herein we conclude that Petitioner is entitled to a speedy trial and since he has made demand for a speedy trial, the prosecuting attorney is obligated to seek temporary custody to bring him to trial on the pending criminal charges or to dismiss the same.

Therefore, the District Attorney for Oklahoma County, Oklahoma, 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 Oklahoma County; or if the District Attorney in a reasonable time fails to bring Petitioner before an examining magistrate to answer said charge then the District Court for Oklahoma County, is directed to dismiss these pending criminal actions 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.  