
    Oscar B. JONES, Petitioner, v. STEPHENS COUNTY, Oklahoma, Respondent.
    No. A-15104.
    Court of Criminal Appeals of Oklahoma.
    Feb. 12, 1969.
    Oscar B. Jones, pro se.
    No appearance for State.
   MEMORANDUM OPINION AND ORDER

PER CURIAM.

This is an original proceeding in which Oscar B. Jones has filed with this court a writ of mandamus as an indigent seeking a speedy trial or the dismissal of the criminal charges filed against him in Stephens County, Oklahoma. Petitioner alleges that he is presently confined in the United States Penitentiary in Leavenworth, Kansas, and as a result of a criminal charge of auto theft filed in 1964 that a detainer has been placed against him at the United States Penitentiary. Petitioner alleges that he has requested a speedy trial from the Stephens County officials and that his request has been denied with the information that he will be tried upon his release from Leavenworth.

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 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 in order to bring him to trial on the pending criminal charges or to dismiss the same.

Therefore, the District Attorney for Stephens County, Oklahoma, should at once seek temporary custody of Petitioner at state expense where necessary, from federal officials in order to proceed on the criminal charges filed against him in Stephens 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 Stephens County is directed to dismiss the pending criminal action and to notify the appropriate 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.  