Fryar v. State , 456 P.2d 570 ( 1969 )

MEMORANDUM OPINION AND ORDER

PER CURIAM:

In an original proceeding Gary Wendell Fryar, an inmate of the federal penitentiary at Leavenworth, Kansas, had petitioned this Court for a writ of mandamus to direct the District Court of Pontotoc County, Oklahoma, to grant him a speedy trial or dismiss the charges pending against him in that county. In consideration of petitioner’s request, this Court by opinion dated April 24, 1968, denied the writ for the reason that petitioner was incarcerated outside the jurisdiction of the State of Oklahoma. Fryar v. State, Okl.Cr., 440 P.2d 204 (1968).

Subsequently, petitioner made application to the United States Supreme Court for a writ of certiorari to review the decision of this Court. The United States Supreme Court, in a per curiam opinion decided May 19, 1969, 395 U.S. 161, 89 S.Ct. 1647, 23 L. Ed.2d 175, granted a writ of certiorari and vacated the judgment of this Court and remanded the case for further consideration in light of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), which was decided subsequent to this Court’s decision of April 24, 1968, in Fryar v. State, supra.

Upon reconsideration of petitioner’s request that he be granted a writ of mandamus directing Pontotoc County to afford him a speedy trial on the pending charges or dismiss same, we find that he is entitled to such relief in view of Smith v. Hooey, supra, and Naugle v. Freeman, Okl.Cr., 450 P.2d 904 (1969). Therefore, our decision in this cause of April 24, 1968, is hereby set aside.

It is therefore ordered that the District Attorney for Pontotoc County, State of Oklahoma, should at once seek temporary custody of petitioner, at State expense where necessary, from federal custody in order to proceed on the charges pending against him in that 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 of Pontotoc County is directed to dismiss this pending cause and to so notify the federal penal officials.

Writ granted.