Opinion
June 2, 1953.
Earnest Rambo, in pro. per., for petitioner.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.
Petitioner, Earnest Rambo, an inmate of the Florida State Prison, submitted his request for relief by letter in which he questioned the legality of his conviction and sentence to life imprisonment on April 21, 1943, under Section 775.10, Florida Statutes, 1941, F.S.A., which statute is commonly known as the "Habitual Criminal Statute."
The indictment upon which Rambo was convicted alleges merely that "Earnest Rambo * * * has four times been convicted of felonies, to-wit: Breaking and entering, in Palm Beach County, State of Florida." We held in Joyner v. State, 158 Fla. 806, 30 So.2d 304, 306; "To constitute * * * a fourth conviction within the purview of * * * Sec. 775.10 [Florida Statutes 1941, F.S.A.], the information or indictment must allege and the evidence must show that the offense charged in each information subsequent to the first was committed and the conviction therefor was had after the date of the then last preceding conviction." (Emphasis supplied.) Obviously then, the sentence of life imprisonment must be set aside and declared null and void.
However, it appears from respondent's return that the petitioner is lawfully held under another valid sentence and he is therefore remanded to the custody of the respondent to complete the service of said sentence.
ROBERTS, C.J., and SEBRING and MATHEWS, JJ., concur.