Scott v. Mayo , 159 Fla. 816 ( 1947 )

On petition for writ of habeas corpus we issued writ and return has come in.

The record now shows that petitioner on August 3rd 1942 was informed against as having been four times convicted of offenses constituting felonies. It is shown that convictions of two of the felonies occurred on the same day, viz: October 28th 1931. Therefore, one only of these two convictions could be counted in arriving at the number of convictions which had been had of the petitioner. See Joyner v. State, ___ Fla. ___,30 So.2d 304. So the petitioner at the time of the conviction under which he is now serving was not amenable to the charge of having been four times theretofore convicted of felonies. However, the record does show that he had twice theretofore been convicted of felonies and was amenable to punishment within the purview of Sec. 775.09 Fla. Statutes 1941, (same F.S.A.).

Therefore, we do not discharge the petitioner but, under the provisions of Sec. 924.34 Fla. Statutes 1941 (same F.S.A.), remand him to the custody of respondent with directions that petitioner be presented to the Criminal Court of Record of Polk County Florida, for judgment and sentence as is provided in Sec. 775.09, Supra, which said offense is included within the offense charged in the information under which petitioner was convicted.

Remanded with directions.

So ordered.

THOMAS, C. J., ADAMS and BARNS, JJ., concur.