Thompson v. State
450 P.2d 908
Okla. Crim. App.
1969
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PER CURIAM:

This is an original proceeding in which Ralph Thompson has filed with this court a writ of habeas corpus or an order to quash and dismiss the detainer placed against him at the Arizona State Prison by the State of Oklahoma. Petitioner alleges that he is confined in the Arizona State Prison as Inmate No. 27806 and that by virtue of criminal charges filed in the City of Madill, Marshall County, Oklahoma, a detainer has been placed against him at *909 the Arizona Prison. Petitioner alleges that his request in Marshall County for speedy trial has been ignored and therefore brings this action as an indigent seeking relief from this court.

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

In the instant case the appropriate remedy for the relief prayed for under the allegations would be a writ of habeas corpus ad prosequendum and this application will be considered as such for disposition. We find that the United States Supreme Court rule regarding the right to a speedy trial of an accused who is confined outside the state in a federal institution is equally applicable where the accused is confined outside the state in the penal institution of another state. Where charges have been filed the appropriate Oklahoma district attorney would have the same duty to seek temporary custody of the Petitioner in order to afford him a speedy trial or dismiss the pending charges.

Therefore the District Attorney for Marshall County, Oklahoma, should at once seek temporary custody of Petitioner, at state expense where necessary, from the Arizona Penal officials in order to proceed on the charge filed in Marshall County; or if the District Attorney within a reasonable time fails to show that he has attempted to secure custody of Petitioner to bring him before the examining magistrate to answer said charge then the District Court of Marshall County is directed to dismiss this pending cause and to so notify the Arizona 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.