McNally was itself overruled in Peyton v. Rowe, 391 U.S. 54, 20 L.Ed.2d 426, 88 S.Ct. 1549 (1968). The immediate release doctrine has not been applied in a Kansas appellate case since then, and this court has allowed habeas actions to proceed in two cases in which the immediate release doctrine's application otherwise would have denied relief. Davis v. State, 202 Kan. 192, 193, 446 P.2d 830 (1968); Jackson v. State, 202 Kan. 194, 195, 448 P.2d 18 (1968). In addition, as noted in the Davis and Jackson opinions, the Kansas Supreme Court amended its rules, which previously had codified the immediate release doctrine into a court rule, by removing that provision after McNally was overruled.
On its first appearance, Jackson v. State, 197 Kan. 627, 419 P.2d 937, to which the reader is referred for the factual background of this matter, the case was remanded with directions that the action be dismissed because under our then-existing rules (Rule No. 121 [ c] [2], 194 Kan. XXVII), despite an adjudication finding the challenged sentence void, the petitioner would still be confined under another sentence resulting from conviction for another offense. On the second occasion ( Jackson v. State, 202 Kan. 194, 448 P.2d 18), inasmuch as Rule No. 121 [ c] [2] had in the interim been abrogated, we overruled our previous decision, recalled the mandate, and directed the district court to determine the issues presented in the motion. After appointment of counsel for petitioner, the district court, on March 11, 1969, examined the record in the case and determined that Jackson's presence was not necessary at the hearing.