Opinion
October 24, 1969.
Appeal from the Circuit Court, Lyon County, Ira D. Smith, J.
Clyde Cravens, pro se.
John B. Breckinridge, Atty. Gen., James H. Barr, Asst. Atty. Gen., Frankfort, for appellee.
The petitioner, Clyde Cravens, is incarcerated in the Kentucky State Penitentiary serving a two-year sentence for storehouse breaking. He asserts that he pled guilty to the charge with the understanding that a previous conviction for breaking into a dwelling would be kept "on the shelf"; that he was accused of trying to escape from the Jefferson County jail while awaiting transfer to the penitentiary and as a result his "shelved" conviction for dwelling house breaking was revived and he now serves an additional five-year sentence for that offense.
The petitioner filed his habeas corpus action against the Warden of the penitentiary seeking his release and, on motion of the Commonwealth, habeas corpus was denied on the basis of Ayers v. Davis, Ky., 377 S.W.2d 154 (1964), no RCr 11.42 action having been theretofore taken.
We conclude that the latter remedy was adequate to test the legality of his detention, and that the judgment of the trial court dismissing the petition for habeas corpus should be affirmed. It is so ordered, and the judgment is affirmed.
All concur.