Cothrum v. Parr , 426 P.2d 382 ( 1967 )

MEMORANDUM OPINION

BUSSEY, Judge.

Petitioner, Richard Lee Cothrum, filed an application for Writ of Mandamus directing the Respondent to enter an order dismissing charges pending against him in District Court Case No. 31149.

From the record it appears that petitioner is serving a term under judgment and sentence rendered against him in District Court Case No. 30733, on his plea of guilty on the 20th day of September, 1965. Subsequent thereto, and on the 3rd day of June, 1966, he was returned to Oklahoma County, arraigned on the charge in District Court Case No. 31149, and the Public Defender was appointed to represent him. He was transported back to the Oklahoma State Penitentiary on the 7th day of June, 1966, where he remained until he was returned by the State for trial on the 25th day of October, 1966. Thereafter this action was instituted and all proceedings stayed in the District Court of Oklahoma County pending a determination of the issues here presented.

Petitioner contends that since his preliminary complaint which was conducted on the 20th day of September, 1965, he has not been afforded a speedy trial. The record reflects that on that day he was sentenced on his plea of guilty in the District Court of Oklahoma County in Case No. 30733, as above set forth, and transported to the Penitentiary to commence serving judgment and sentence thereunder, prior to his arraignment. It does not appear that he ever requested a speedy trial, or sought an application for habeas corpus ad prose-quendum in the manner set forth in Thacker v. Marshall, Okl.Cr., 331 P.2d 488.

Moreover, when brought back from the Penitentiary and afforded an opportunity for a trial, he instituted the instant proceeding.

Since he is being currently confined under judgment and sentence rendered against him in the District Court of Oklahoma County Case No. 30733, and not by virtue of charges pending against him in District Court Case No. 31149, and has not followed the procedure set forth in Thacker v. Marshall, supra, we are of the opinion that the writ prayed for should be, and the same is hereby, denied.

BRETT, J., concurs. NIX, P. J., not participating.