Summary
In Hollon v. Tinsley, 334 F.2d 762 (10th Cir. 1964), a federal court was faced with a similar problem except that in that case the state court had not remedied its original error in sentencing the defendant to serve a term in excess of the maximum provided by state law.
Summary of this case from United States ex rel. Jordan v. MazurkiewiczOpinion
No. 7720.
July 16, 1964.
Gwendolyn H. Gregory, Glendale, Colo., for appellant.
John E. Bush, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., and Frank E. Hickey, Deputy Atty. Gen., State of Colorado, on the brief), for appellee.
Before PHILLIPS and BREITENSTEIN, Circuit Judges, and CHRISTENSEN, District Judge.
We are of the opinion that the record in this case establishes that the sentence imposed on the applicant for the writ of habeas corpus by the state court is invalid and his detention thereunder unlawful, but that the infirmity in the sentence does not extend to applicant's plea of guilty. Therefore, the order is reversed and the cause remanded, with instructions to enter an order discharging the applicant from custody under the sentence, but staying its effectiveness for 30 days to enable the state if it is so advised to take applicant before the state court in which his plea of guilty was entered for the imposition of valid sentence.