
    No. 10220.
    In re Petition of DUSTY D. WELLS, alias BERNARD GUSTIN.
    
      Decided February 6, 1961.
    362 P.2d 420.
   PER CURIAM:

Original proceeding. Application for writ of mandate to be directed to the District Court of Powell County, Montana, to require said court to grant petitioner a speedy trial.

Petitioner is at present confined in the United States Penitentiary at Leavenworth, Kansas, and avers that a detainer has been filed with that institution by the Warden of the Montana State Prison based upon an escape charge pending against petitioner in Montana.

The records at the Montana State Prison show that petitioner was received there on January 23, 1958, after his conviction of the crimes of Grand Larceny and Destroying and Injuring a' Public Jail, he having been sentenced to terms of eight years and five years to run concurrently. That petitioner escaped from custody on April 6, 1959, after having served one year, two months and thirteen days of his sentences, and will be returned to that institution to complete his unexpired sentences.

Section 94-4203, R.C.M.1947, provides:

“Escapes from state prison — punishment. Every prisoner confined in state prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the state prison for a term of not less than one year nor more than ten years; said second term of imprisonment to commence from the time he would have otherwise been discharged from said prison.” Emphasis supplied.

It is apparent that petitioner upon his return to the Montana State Prison will be an inmate therein for a considerable period of time, and that upon such return he may receive a speedy trial upon the escape charge, therefore we deem the present application to be premature. Should he not be given a speedy trial upon his return to the Montana State Prison to complete his unexpired sentences this court will be available for a further application by petitioner.

For these reasons the application is denied and the proceeding dismissed, without prejudice to a further petition if necessary.  