[1] MEMORANDUM OPINION AND ORDER
[2] This is an original proceeding in which Donald Gene Ferguson, now confined as Inmate No. 15668-TT at the Federal Correctional Institution, Texarkana, Texas, has filed with this court for a writ of mandamus seeking a speedy trial on charges filed against him in Stephens County, Warrants No. 26233, 26227, 26232, or that said charges be dismissed. Petitioner further alleges that he has on three occasions made a request in Stephens County that he be tried on the charge or that the same be dismissed. Petitioner then filed this action with this court as a indigent seeking relief.
[3] Adopted this day in our decision in Naugle v. Freeman, Okla. 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.2d 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.
[4] Petitioner has filed for a writ of mandamus. However, the appropriate remedy in this court for relief under the allegations would be a writ of habeas corpus ad prosequendum and this application will be considered as such. Under the allegations we conclude that Petitioner is entitled to the relief prayed for herein. Petitioner has made a demand for a speedy trial and the prosecuting attorney is obligated to seek custody of Petitioner for trial or dismiss the charge.
[5] Accordingly, the District Attorney for the Sixth Judicial District, 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 charge pending in Stephens County against him; 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 cause and to so notify the appropriate federal penal officials. Writ of habeas corpus ad prosequendum granted.
[6] 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. *Page 911