*1 to before me and sworn Subscribed May, day
8th Hinson
(s) Dot Hinson Dot County, Public, Anderson
Notary
Texas 1, 1967. expires
My commission June Petitioner, THOMPSON,
Ralph Court
STATE County, Respondents. Appeals of Oklahoma. of Criminal
Court 3, 1971. Thompson, pro
Ralph se. Gen., Atty. Hugh IT. Blankenship, T.G. Gen., Collum, respondents. Atty. Asst. for NIX, Judge: writ original proceeding This petitioner seeks of mandamus in which the charge in dismissal of a of Marshall District Court result- removal of against him the Arizona ing detainer State Prison. previously requested relief
Petitioner A-14,849. from this Court Case No. proceeding, this As a result 12, 1969, di- opinion in an issued Attorney for Marshall rected the District County temporary to “at once seek petitioner” in order to him to trial fail- ure to so within a reasonable district court was to dismiss notify so cause and to Thompson officials. (1969).
P.2d 908 *2 628 attorney appears
It then
the district
on
the
If
must be dismissed.
17, 1969,
peti-
sent
form to
a
the
the
fail
state should
to institute extradi-
waiving
tioner
to fill
proceedings
out
within a reasonable
papers
presented
peti-
These
were
the
to
the
would be sub-
ject
tioner at
de-
upon application
the Arizona Prison where he
to dismissal
the
petitioner.”
to
clined
execute the waiver
bene-
without
counsel,
advice,
fit
legal
or instructions
Although
appealing
there is some
Upon
as
to
his act.
learn-
in
logic
position
the State’s
an
that
accused
ing
petitioner
that
failed to execute
should be
to
willing
waive extradition in
attorney
waiver of
the district
to
right
order
speedy
facilitate his
took no further action.
trial, we are unable to
an
hold that
accused
petitioner
The
then filed in the District
must waive one
right before
can
he
Court of Marshall
a Motion to
right.
exercise another
The
“will
courts
pending charge.
Dismiss the
The district
put
price
not
a
tag upon constitutional
court denied the
in an order
motion
dated
rights.”
supra.
Hooey,
pro
v.
Smith
If a
13, 1969,noting
petitioner
October
that the
cedure would “chill the assertion of consti
although
was not in attendance
he had
tutional rights by
who
penalizing those
been
repre-
notified. Petitioner was not
them,
to
choose
exercise
then it would be
by
sented
counsel and there is no indica- patently unconstitutional.” United States
tion how
towas make himself
581,
Jackson,
570,
390 U.S.
at
88 S.Ct.
available.
1209,
1216,
require
tors to conclusion. extradition accused from 897; In Sat- Cal.Rptr. 411 re another P.2d grant state trial or Cal.Rptr. 419, 50 terfield, 64 Cal.2d HEINRICH, 412 P.2d Donald Plaintiff Darrell Error, 1141.25, O.S.1961, Furthermore, 22 § by extradition may waive provides accused The STATE of Defend- *3 “in instrument executing written ant in Error. of duty “the it is judge” presence person of inform such judge
such Appeals Court Criminal of Oklahoma. as the ac- policy is sound rights.” This know the position to is in no of extradi- Waiver act. sought without instant case benefit and without protection this
legal counsel.
We, therefore, that a crimi hold confined in a institution
nal accused waive his need not
outside Oklahoma request in order
to extradition on a in Okla
homa. The accused’s refusal execute the ob not obviate
extradition waiver does authorities to
ligation through Since made effort has no State of Oklahoma petitioner, we hold that
to extradite the District Court be should prejudice.
dismissed with so, and to instruct is directed dismis officials of such
sal. granted.
Writ
BRETT, J., concurs.
BUSSEY, (specially concurring): P. J.
I concur with the decision the reason
that when the refused waive it then became incumbent
the District to institute either ex-
tradition proceedings a writ habeas or
corpus-ad prosequendum. In event bonifidely had been effort made
refused, still then could
prosecuted jurisdic- when found within prosecutor’s
tion. decision that he pro- attempt
will now proper extradition
ceedings corpus-ad a writ habeas or
prosequendum, comes too late.