Opinion
December 9, 1952.
Herbert Reed, pro. per.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.
This cause having been submitted to the Court upon the return of the respondent to the Writ of Habeas Corpus issued herein. It appears from said Return that the Petitioner is in custody under and by virtue of a commitment issued out of the Circuit Court for Marion County, Florida, under date of March 19th, 1935, to enforce a life sentence of petitioner as a fourth felony offender and was sentenced to be imprisoned in the state prison for the period of his natural life. The respondent concedes that said life sentence is invalid under the decisions of this Court because it appears from said information that the third and fourth convictions were suffered on the same day, viz.: March 19th, 1935. See Joyner v. State, 158 Fla. 806, 30 So.2d 304; Mowery v. Mayo, 159 Fla. 185, 31 So.2d 249. Ex Parte Cantrell, 159 Fla. 426, 31 So.2d 540; State v. Bell, 160 Fla. 874, 37 So.2d 95.
The petitioner could lawfully have been sentenced to serve ten years for the fourth felony named in the information, viz., grand larceny. Likewise, he could have lawfully been sentenced to serve ten years for the third felony named in the information, viz., grand larceny. These two sentences of ten years each could have been imposed consecutively, making a total of twenty years. The prisoner has been in prison since March 19th, 1935, on account of said life sentence, a period of 17 1/2 years. The return shows that the prisoner has a good record. If he had previously been sentenced to serve ten years for said fourth felony and ten years for said third felony, to be served consecutively, the time that he has served since 1935, plus the gain time that he would be entitled to, would be sufficient to serve two consecutive ten-year sentences; and that time, plus gain time for good behavior, entitles the petitioner to be released without serving further time.
It is, therefore, considered, ordered and adjudged that the petitioner herein be and he is hereby discharged from custody of the respondent.
TERRELL, Acting Chief Justice, and ROBERTS, MATHEWS and DREW, JJ., concur.