Surratt v. State , 365 P.2d 751 ( 1961 )

BUSSEY, Judge.

This is an application for a writ of mandamus by W. E. Surratt, an inmate of the State Penitentiary at McAlester, Oklahoma, requesting that he be accorded a preliminary hearing in the District Court of Garfield County, Oklahoma, or that charges there pending against him be dismissed.

In December, 1958, petitioner entered a plea of guilty to a charge of Armed Robbery and he was sentenced by the District Court of Tulsa County to serve 7 years confinement in the State Penitentiary. Thereafter the County Attorney of Garfield County, Oklahoma, filed a charge of “Robbery with Firearms” against the petitioner and a hold order was placed with the warden of the State Penitentiary setting out the aforementioned offense. This court has repeatedly held that under such conditions either .the state of the accused may proceed in the District Court of the County where charges were filed by way of habeas corpus ad prosequendum and should all efforts fail, original proceedings may be filed in the Court of Criminal Appeals. However, where a writ of habeas corpus ad prose-quendum has been filed either by the state of accused and such matter is pending in the District Court, this court will not grant a writ of mandamus for the reason that petitioner has a remedy in the lower court.

The record in this case indicates that petitioner did apply for such writ and that the matter is now pending in the District Court of Garfield County, Oklahoma. It further appears from the response filed by Robert L. Gregory, County Attorney in and for Garfield County, Oklahoma, that he is ready and willing to try said petitioner at the next regular docket of the District Court of Garfield County. Mr. Gregory further advised this Court that he will join with the petitioner in his request for speedy trial on the hearing for habeas corpus now pending in the District Court of Garfield County.

The proceedings are hereby dismissed.

NIX, P. J., and BRETT, J., concur.