Opinion
No. 51156.
October 17, 1963.
CRIMINAL LAW: Sentence — modification by supreme court. On conviction of the charge of breaking and entering and as a habitual criminal the sentence imposed of a term not exceeding 50 years in the penitentiary is error, and the judgment is modified by providing it shall not exceed 40 years.
Appeal from Scott District Court — ARTHUR F. JANSSEN, Judge.
James B. McGrath, of Davenport, for appellant.
Evan Hultman, Attorney General, and John H. Allen, Assistant Attorney General, for appellee.
The decision announced in the opinion filed herein on October 15, 1963, having been the result of a typographical error in the transcript filed herein, the said opinion is hereby withdrawn on the court's own motion and this opinion is substituted in lieu thereof.
Defendant was charged by county attorney's information with breaking and entering in violation of section 708.8, Code, 1962. The information also alleged that on two previous occasions defendant was convicted of robbery and upon conviction of the crime of breaking and entering, charged herein, he should be sentenced according to the provisions of Code section 747.1. Defendant pleaded not guilty, was tried before court and jury and found guilty of the crime charged. The jury also found defendant was convicted of the two previous offenses of robbery, as alleged in the information. Defendant was sentenced as a habitual criminal to a term not exceeding 40 years in the men's penitentiary at Fort Madison, as provided by Code section 747.1.
Defendant's appeal comes to us upon a clerk's transcript which reveals no error. Hence the judgment is affirmed. — Affirmed.