Opinion
No. 24945.
November 1, 1950.
Bracewell Wright, Huntsville, for appellant.
George P. Blackburn, State's Atty., of Austin, for the State.
This is an original application by Neal Harter who is confined in the State Penitentiary by virtue of judgment of the 70th Judicial District Court, Midland County, of date March 11, 1949, assessing a term of five years in the State Penitentiary on a charge of felony theft.
Appellant entered a plea of guilty before the court, who entered on his docket an order for judgment of five years in the penitentiary. By error in entering the judgment, it provided that he serve not less than two nor more than five years.
When this application was presented to Presiding Judge Hawkins, on the 19th day of June, 1950, he directed the Honorable Paul Moss, District Judge, to hear evidence and report to this Court his findings, together with certified copy of the judgment, sentence, and such other orders as may be of record pertaining to this cause, including any subsequent nunc pro tunc order which may have been entered, together with all docket entries relied upon as basis for such nunc pro tunc orders.
This requirement has been complied with, which shows that proper nunc pro tunc order has been entered, in accordance with the law, correcting the judgment which is now definite, assessing a term of five years. It may be observed that in sentencing the defendant it is provided that same should not run concurrent with any other sentences against him. We have frequently held such orders to be ineffective and appellant should be given the benefit of such holding, in determining his time, in the event other sentences prior to this one should be held against him.
Considering the record as it is now presented, appellant is remanded to the authorities of the penitentiary to serve his sentence.