Opinion
July 13, 1951.
Ray Sellers, petitioner, in proper person.
Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for respondent.
Upon petition filed by Ray Sellers we issued a writ of habeas corpus to which the respondent filed a return. Thereafter the petitioner filed a traverse and the cause is now ready for disposition. This is a case of original jurisdiction.
The questions to be determined present no factual disputes and are therefore purely legal.
Petitioner contends, and respondent virtually admits, that the petitioner is illegally confined in the State Prison under a life sentence imposed upon him by the Circuit Court of Marion County for being a fourth felony offender.
It is shown by the petition and the exhibits that the fourth conviction of felony set forth in the information upon which the life sentence was based, was entered by the Circuit Court of Levy County, Florida and not by the Circuit Court of Marion County, Florida.
Section 775.11, Florida Statutes, 1941, F.S.A. outlines the procedure in prosecutions for second and subsequent offenses. Said section reads, in part, as follows: "If at any time after sentence or conviction it shall appear that a person convicted of a felony has previously been convicted of crimes as set forth either in § 775.09 or § 775.10 the prosecuting attorney of the county in which such conviction was had, shall file an information accusing said person of such previous convictions, whereupon the court in which such conviction was had shall cause said person * * *." It is clear that the Circuit Court of Marion County was not authorized by law and, therefore, was without jurisdiction to enter the life sentence under which petitioner is being confined in the State Prison.
Respondent tacitly, if not in fact, confesses that the life sentence imposed by the Circuit Court of Marion County is void. It is patent that such sentence is void and we would be compelled to discharge the petitioner except for the fact that we find, as contended by respondent, that the petitioner entered a plea of guilty to said information and the information adequately charged him with being a second offender in Marion County. Consequently, we do not discharge the petitioner but we remand him to the custody of respondent Nathan Mayo as Prison Custodian of the State of Florida, with directions that petitioner be presented to the Circuit Court of Marion County, Florida, for judgment and sentence as is provided in Section 775.09, supra, which sets forth the punishment for second conviction of felony. Such offense is included within the offense charged in the information under which petitioner was convicted and sentenced as a fourth offender. See Scott v. Mayo, 159 Fla. 816, 32 So.2d 821; Williams v. Mayo, 160 Fla. 169, 33 So.2d 861; State v. Bell, 160 Fla. 874, 37 So.2d 95.
Remanded with directions.
SEBRING, C.J., and CHAPMAN and ADAMS, JJ., concur.