249 N.C. 44 | N.C. | 1958
The prayer of petitioner is that this Court review the record and “issue an order directing that petitioner be discharged from custody.”
The sentence imposed in Madison County is, as to the minimum time the prisoner is to serve, within the limits permitted by statute; but the maximum term set is beyond statutory authorization. G.S. 14-70, G.S. 14-54. The sentence imposed is not void in toto. Petitioner is not entitled to be released from custody. He has not served that part of -the sentence which is within lawful limits. Habeas corpus is, as Judge Clarkson held, not an appropriate means of correcting the errors of which prisoner can justly complain. S. v. Austin, 241 N.C. 548, 85 S.E. 2d 924; S. v. Byers, 248 N.C. 744. Certiorari is the proper method to have the judgment corrected.
The cause is remanded to .the Superior Court of Madison County for imposition of >a -sentence not in excess of statutory authorization based on defendant’s plea of guilty. The sentence imposed will be effective as of 23 February 1953 so that prisoner will have the benefit of the time already served.
Vacating the sentence imposed in Madison County in 1953 makes uncertain the time when the sentence imposed in Currituck is to begin. Upon the imposition of an authorized sentence in Madison County the cause will then be remanded to Currituck for imposition of an appropriate sentence based on the verdict of guilty rendered at the March 1958 Term of the Superior Court of Currituck County.
Remanded.
