Forgery is charged

A man pleads guilty to the crime of grand larceny in the second degree and was sentenced to the state vocational institute.

After two years, the man again pleads guilty to the crime of attempted grand larceny in the second degree and was sentenced for a term of two and half to five years.

After seven years, he again pleads guilty to the crime of forgery in the second degree.

Afterward, the district attorney filed an information in the county court setting forth the two prior felony convictions of the man for the purpose of establishing that he was a third felony offender.

On the same day, the man acknowledged that he was the same person named in information and that he was previously convicted of two certain felonies.

After the man waived his right to a forty-eight hour delay and asked to be sentenced at once, the court sentenced and committed him for a term of not less than five or more than ten years upon his conviction of the crime of forgery in the second degree.

After seven years, the man was found guilty of another second degree forgery charge.

Sources revealed that prior to his sentence on the said conviction the court stated that it was necessary to hold hearings to determine whether the man was a fourth felony offender as charged in an information filed by the district attorney.

Subsequently, the proceedings resulted in findings unfavorable to the complainant. The three prior felonies alleged in that consisted of the three felonies. As a result, he was sentenced as a fourth felony offender for twenty years to life.

After that, upon a hearing, on an application to set aside the conviction, the court made an order that the plea of guilty and sentence of the man are vacated and set aside. The record also shows that the man was thereupon re-arraigned and pleads not guilty.

Consequently, the man withdrew his plea of not guilty and plead guilty to the crime of grand larceny in the second degree whereupon the court pronounced decision on which it is ordered by the court that the decision of sentence for the felony aforesaid whereof he is convicted be, and the same is suspended during the good behavior of the man.

After two years, the man’s prior sentence as a fourth felony offender was set aside inasmuch as a predicate felony. At that time, the man accordingly stood before the court as a prior felony offender. The prior felony offender information which had been previously filed against him that charged him with criminal felony convictions.

The court then sentenced the man as a prior felony offender for a term of ten to twenty years.

Upon another application to the court, it was ordered that the plea and the sentence of the man be vacated and set aside, and he is advised of his rights and pleads not guilty. After that, the man withdraws his plea of not guilty and pleads guilty to the crime of attempted grand larceny in the second degree upon which plea he was sentenced by imprisonment. But, the execution of the sentence is suspended.

Based on records, the man appeared before the board of parole for determination as to the service of the delinquent time owed on his previous sentence. However, the board directed that service of the new sentence began as of the date of his reception in prison on such new sentence. Further, even as the man was not penalized by a requirement that he serve all or part of his criminal delinquent time before service of the new term, the board’s action was a parole on the delinquent time to begin the new term.

As a result, the man could be cited for violation of parole which would interrupt the running of the delinquent time, a rare occurrence, and require service of the remainder consecutively with the present term. The court also stated that the man can also earn good time on the delinquent time which would permit it to expire prior to the normal expiration date.

Sources revealed that there can be no doubt that the man is actually in custody under his two previous resentence and that the benefit of the concurrent service thereof may be taken away by the action of the board in the event of the man’s misconduct in the institution.

The court hold, therefore, as a matter of law, for the reasons set forth, that the writ is a proper means of challenging the legality of the man’s detention under his previous sentence and that that question is presented in the case.

Afterward, the present opponent has the man in custody by the authority of an order of the Supreme Court pursuant to which the warden of the prison was directed to deliver him to the opponent so that he could participate in the conduct of a hearing.

At trial, the man was held in custody in the county’s jail and that custody has continued during the consideration of the application for the writ of habeas corpus. On the other hand, the opponent’s custody of the man is merely an incident of the latter’s confinement in the prison, and in the final analysis, is dependent on the justice of the cause for his detention in that institution.

Sources revealed that one of the causes is the man’s previous sentence which he contends is, and which he find to be, illegal. The said sentence followed, and was based upon, adjudication that the man had twice previously been convicted in the county of the felonies specified in the information.

Based on records, a person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his behalf, may appeal without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance. Moreover, a judge authorized to issue the writ having evidence, in a judicial proceeding before him, that any person is so detained shall, on his own initiative, issue a writ for the relief of the said person.

Evidently, the setting aside of the guilty pleas and the sentences imposed to the man in the court cases, respectively, wiped out the convictions on which he was adjudged to be and was sentenced as a prior felony offender.

The court stated that the man should therefore be remanded to the county court for resentence on his plea of guilty to the crime of forgery in the second degree which he interposed, and which plea still remains good even though the decision of sentence thereon must, as a matter of law, be vacated, and that he will be sentence on the said plea as a first offender, and that in addition, he will be resentence on his conviction as a second felony offender, the underlying felony case prior his conviction.

Consequently, the court decided to dismiss the writ. However, those having the custody and control of the man are directed to bring him before the county court and that the court is ordered and directed to resentence him on his felony plea as a first offender, and on his previous conviction as a second felony offender.

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