Opinion
February 9, 1968.
Appeal from the Daviess Circuit Court, Dan M. Griffith, J.
Jerry Franklin Parks, pro se.
Robert Matthews, Atty. Gen., George F. Rabe, Asst. Atty. Gen., Frankfort, for appellee.
Jerry Franklin Parks filed a motion in the Daviess Circuit Court that a pending indictment against him be dismissed because the state had failed to afford him a speedy trial. The court did not specifically rule on that motion but entered an order that proceedings under the indictment be stayed until such time as Parks' competency has been restored. Parks has undertaken to appeal from that order.
Because it appears to us that Parks could not prevail in any event, we shall not decide the question, raised by a motion to dismiss the appeal, whether an appeal will lie from an order of the kind here involved or whether the remedy, if any, is by original proceeding in this court under Section 110 of the Kentucky Constitution.
The indictment by the Daviess County Grand Jury was on November 15, 1966. However, prior to that date Parks was taken into custody in Jefferson County by federal officers on a federal charge and since that time has been in federal custody. The record shows that he was adjudged by the federal court to be mentally incompetent to stand trial and was committed to the Medical Center for Federal Prisoners in Springfield, Missouri, where he still is confined.
There is no showing that Parks, prior to moving for dismissal of the Kentucky indictment, ever moved for a trial of that indictment or that he ever has been or now is available for trial and capable of being tried. Absent such a showing Parks cannot complain of the failure to try him. See Ruip v. Knight, Ky., 385 S.W.2d 170; LaVigne v. Commonwealth, Ky., 398 S.W.2d 691; Ruip v. Commonwealth, Ky., 415 S.W.2d 372; 21 Am.Jur.2d, Criminal Law, secs. 249, 250, 252, pp. 284 to 288.
The order undertaken to be appealed from shall stand affirmed.
All concur.