(dissenting).
I am in full accord with the action of the trial jitdge in setting aside the illegal judgment and sentence and in restoring the status quo in the cases as though the illegal pleas of guilty of drug addiction had never been entered and received.
Initially, it is clear that relator’s plea of guilty of drug addiction was not responsive to the crime of possession of narcotics with which he was charged. State v. Robinson, 221 La. 19, 58 So.2d 408. Hence, the judgments entered on these pleas and the sentences imposed thereunder were absolutely null. A valid sentence must be based upon a valid indictment (R.S. 15 :522) and a plea of guilty must be responsive to the indictment or information for no one can plead guilty to a crime with which he is not charged. The judge is powerless to impose a valid sentence upon a plea to an offense which is not charged in the bill of information or indictment, or which is not necessarily included therein as a lesser offense.
Hence, the only question for decision is whether the trial court, upon application of the State, had jurisdiction to annul the illegal convictions and sentences during the time that the sentences were being executed. I find no difficulty in resolving this question in the affirmative as this Court has squarely held on more than one occasion that:
“There is no authority that we know of for the proposition that, when a sentence which is void, as being in violation of a statute, has been partially executed, the judge who made the mistake of imposing the void sentence has lost his authority to impose a valid sentence.” State ex rel. Cutrer v. Pitcher, 164 La. 1051, 115 So. 187, 188.
See also State v. Nicolosi, 128 La. 836, 55 So. 475, where the court said “ * * * it would be monstrous if a court that has sentenced an accused in a case of which it had no jurisdiction could not ex proprio motu, or on application, set aside the sentence. The very contrary is the law. 12 Cyc. 788; 26 A. & E. E. 315; Wharton, Crim.Pl. & Prac. 913. State v. Brannon, 34 La.Ann. 942, 945.” See also 24 C.J.S. Criminal Law § 1605, p. 141 and cases cited in support of the text, including Bauman v. United States, 5 Cir., 156 F.2d 534, holding that a judgment of conviction which is void on its face may be attacked at any time by a motion to vacate the sentence.
In reinstating the void judgments and sentences set aside by the judge, the majority declare that the pleadings filed by the district attorney to set aside these void judgments and sentences “ * * * were in effect either motions for a new trial or motions in arrest of judgment.” And, from this premise, the opinion concludes that the district judge was without authority to entertain the pleadings for annulment of the invalid judgments and sentences be*681cause the State may neither apply for a new trial nor may a motion in arrest of judgment he filed after sentence has been imposed.
Manifestly, this conclusion is founded on a false premise — the assumption of the majority that the request of the State for an annulment of the invalid judgments and sentences was substantially the same as a motion for a new trial or in arrest of judgment. It is not the purpose of the prosecution to have a new trial in the cases, nor does it request the arresting of a judgment which has already been partially executed. On the contrary, its pleadings show that it is attempting to have the null judgments set aside and the status quo restored in the cases. That is exactly what this Court has stated, in State v. Pitcher and State v. Nicolosi, that either party to the void judgment has the right to do. Indeed, the judge had jurisdiction to annul the judgments and sentences ex proprio motu.
The relator in this case does not contend that the pleadings filed by the district attorney to set aside the void judgments and sentences were, in effect, motions for a new trial or in arrest of judgment. His main position, as I understand it, is that the prosecution is “estopped” from seeking to have the judgments and sentences changed since the pleas of guilty to drug addiction and the sentences imposed thereunder were made as the result of an agreement between relator, the district attorney and the judge. The case of State v. Mockosher, 205 La. 434, 17 So.2d 575 is cited in support of the point.
In the Mockosher case the defendant, having pleaded not guilty to the charge of negligent homicide, was permitted to withdraw his plea and enter a plea of guilty following an agreement with the district attorney that he would be sentenced to serve a period of 10 months in the penitentiary. After this sentence was imposed and before its execution, the judge undertook to amend it by increasing the prison term to three years. On appeal to this Court it was held that, despite the provisions of Article 526 of the Code of Criminal Procedure (which vests the judge with power to amend or change a legal sentence prior to the beginning of its execution), the sentence could not be changed as the defendant had already surrenderd substantial rights when he changed his plea -from not guilty to guilty with the understanding that he would receive a sentence of ten months. The amended sentence was, therefore, set aside and the original sentence reinstated.
The difference between the Mockosher case and this one is immediately apparent. In that case there was a legal plea of guilty to a legal charge. In this case, the pleas of guilty were illegal because there was never a legal charge filed against relator for being a drug addict. Hence, the judgments and sentences were absolute nullities and relator, as well as the State, has and had the right to' have the proceedings against him set aside at any time. See State v. Duhon, 142 La. 919, 77 So. 791 where the defendant was released from custody on his application for a writ of habeas corpus, the court holding that his conviction and sentence of four years in the penitentiary on his plea of guilty to breaking and entering a box car were absolute nullities for the reason that he had never been charged with the crime by bill of indictment or information.
I respectfully dissent.