SUTHERLAND
v.
SANDERS.
27853.
Supreme Court of Georgia.
Submitted April 10, 1973. Decided May 10, 1973.Spence & Knighton, Judson R. Knighton, for appellant.
George W. Darden, District Attorney, Joe Chambers, Roy E. Barnes, for appellee.
JORDAN, Justice.
Sutherland was convicted of forgery in Cobb Superior Court at the November 1971 term, and sentenced to imprisonment for ten years. While in custody in Tattnall County pursuant to this sentence he sought release by habeas corpus, asserting that his sentence exceeded the legal limits. A hearing was held in Tattnall Superior Court on August 16, 1972, and on September 6, 1972, a judge of that court ruled that the indictment under which he was tried in Cobb Superior Court alleged second degree forgery, for which the maximum sentence would be five years, and in view of the excessive sentence he directed the respondent in that action to return the petitioner to the authorities of Cobb County for appropriate action not inconsistent with his opinion. There is no record of any appeal from this ruling.
On January 10, 1973, while in the custody of the Sheriff of Cobb County, Sutherland initiated a second application for the writ of habeas corpus, asserting that although he was indicted for forgery in the second degree, he was tried for conspiracy to commit forgery, the jury was so instructed, and that the verdict was in effect a verdict of conspiracy to commit forgery, which *592 therefore operated as an acquittal of the offense of forgery.
At the hearing in Cobb Superior Court on the second application counsel for the respondent took the position (1) that the petitioner was being held and "should be held for a resentencing hearing as provided by law," and (2) that the assertions of the petitioner otherwise were matters for consideration on direct appeal.
The petitioner appeals from the order of the trial judge remanding him to the custody of the respondent. Held:
We find no merit in the asserted errors, and conclude that the unappealed ruling of the judge in Tattnall Superior Court supports the action of the hearing judge in remanding the petitioner to the custody of the respondent. However, in view of the lapse of time since the original conviction on November 11, 1971, and the unappealed ruling of the habeas corpus judge in Tattnall Superior Court on September 6, 1972, we think it appropriate to affirm this action only on condition that within 30 days after receipt of the remittitur in Cobb Superior Court action be taken to impose a legal sentence for forgery in the second degree; otherwise the petitioner shall be released from custody.
Judgment affirmed on condition. All the Justices concur.