Opinion
October 7, 1959.
Albert J. Datz, Jacksonville, for petitioner.
Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for respondent.
Petitioner, John G. Matthews, is confined to the Florida State Prison at Raiford for violation of § 847.01, F.S. 1955, F.S.A. After his conviction and after his appeal thereon to this Court, wherein the conviction was sustained, this Court in the case of State v. Tracey, Fla. 1958, 102 So.2d 386, held the subject statute to be unconstitutional under the decision of the United States Supreme Court in Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.
It therefore appears that the petitioner is being unlawfully detained in that he was convicted and sentenced under an unconstitutional statute and that he must be released.
Accordingly it is ordered that the petitioner be discharged by the respondent.
THOMAS, C.J., and HOBSON, DREW and O'CONNELL, JJ., concur.
TERRELL, ROBERTS and THORNAL, JJ., dissent.