Opinion
No. 5327.
Opinion delivered January 8, 1968
1. CRIMINAL LAW — TIME OF TRIAL CONTINUANCE — DISCHARGE OF ACCUSED FOR DAY IN PROSECUTION. — Prisoner in federal penitentiary held entitled to dismissal of charges and recall of detainer filed with federal authorities under statute where 2 full terms of Pulaski Circuit Court had elapsed after petitioner made request for trial. 2. CRIMINAL LAW — APPEAL ERROR — PETITION FOR FAIR SPEEDY TRIAL SUFFICIENCY OF. — Argument that petition to trial court was not a petition for trial held without merit where intent was clear, although technically, handwritten petition was headed motion for writ of Habeas Corpus Ad Prosequendum when petitioner should have petitioned for writ of Procedendo Ad Judicium.
Petition for Writ of Mandamus; petition granted.
James D. Storey, for petitioner.
Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for respondent.
The petitioner, Thomas Johnson Jr., is serving a ten-year term in a federal penitentiary, having been convicted in January 1966. At the time of that conviction there were several felony charges pending against him in the Pulaski County Circuit Court. He filed a pleading in the circuit court on May 6, 1966, asking that he be given a trial on the charges there pending. No action has been taken on his petition and Johnson asks here that the trial court be directed to dismiss the charges and remove the detainer filed against him with the federal authorities.
Under the authority of Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S.W.2d 162 (1955), petitioner is entitled to relief. Two full terms of the Pulaski Circuit Court have elapsed since petitioner made his request for a trial. During that period the prosecuting attorney did not see fit to institute proceedings calculated to effect Johnson's return for trial. The State's right to prosecute has expired.
Respondent urges that Johnson's petition to the trial court was not a petition for trial. The handwritten petition was headed "Motion for writ of Habeas Corpus Ad Prosequendum." Technically, he should have petitioned for a writ of procedendo ad judicium. Given a literal interpretation, the title of his motion indicated that he was asking for a writ to issue to remove him to Pulaski County so he could be prosecuted. Furthermore, in the text of his motion, he asked that a writ be issued "granting him an immediate transfer to Little Rock, Ark., for the purpose of a fair and speedy trial." The intent of the petition is clear.
The petition is granted. Johnson is entitled to a dismissal of the charges and a recall of the detainer filed with federal authorities, all arising from cases numbered 63718, 63719, 64268, 64308, and 64471.