Opinion
December 12, 1952.
Woodrow Montgomery, in pro. per.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for respondent.
We issued writ of habeas corpus in this case on October 7, 1952. A return has now been made.
It appears from the return that the petitioner is being held in custody by virtue of a commitment issued by the Criminal Court of Record of Duval County on the 5th day of December, 1945, whereby he was committed for the balance of his natural life upon a conviction of a fourth felony.
Prior to the conviction for a fourth felony the petitioner had been convicted on November 5, 1945 in the Criminal Court of Record of Duval County of the crime of armed robbery and was sentenced to serve 15 years.
On the 5th day of December, 1945, and prior to serving any of the sentence for armed robbery, the Criminal Court of Record entered an order revoking and setting aside the sentence of 15 years for conviction of armed robbery and thereupon adjudged the petitioner guilty of committing a fourth felony and entered the commitment for life above mentioned.
The respondent concedes and admits that the conviction of the offense of a fourth felony was void for the reason that the information filed against him was insufficient to charge such an offense under the opinion in the case of Joyner v. State, 158 Fla. 806, 30 So.2d 304.
The result of the allegations of the petition and the admissions in the return is that the petitioner is illegally held under the commitment for a conviction of a fourth felony because the said information charging the fourth felony and the conviction are void. The petitioner stands convicted of the offense of armed robbery but the judgment and sentence, based upon said conviction, of 15 years was revoked on the same day that the order of commitment was issued upon the conviction for a fourth felony. The case as to the conviction for armed robbery stands as if no sentence had been imposed in this case.
The petitioner should be and he is hereby remanded to the Criminal Court of Record in and for Duval County, Florida, for the pronouncement and imposition of such proper sentence on the conviction of armed robbery as such Court may deem advisable. See Carnagio v. State, 106 Fla. 209, 143 So. 162, and House v. State, 127 Fla. 145, 172 So. 734.
SEBRING, C.J., and ROBERTS and DREW, JJ., concur.