Petitioner has filed in this court a petition for writ of habeas corpus alleging that he is presently serving in the state prison a sentence of from six months to 20 years imposed as a result of his conviction of the offense of breaking and entering with intent to commit a misdemeanor, the maximum punishment for which is five years’ imprisonment. Section 810.05, F.S.A. The respondent in his return has conceded the excessiveness of the sentence imposed.
Accordingly, it is ordered that petitioner be remanded to the custody of the respondent who is directed to produce him before the circuit court of the seventh judicial circuit in Volusia County for the imposition of a sentence within the terms of the statute. Mullins v. Cochran, Fla., 121 So. 2d 145.
The circuit court is directed to take into account the time already served by the petitioner pursuant to the excessive sentence and such “gain” time as he has earned. Perry v. Mayo, Fla., 72 So.2d 382.
It is so ordered.
THOMAS, C. J., and TERRELL, HOB-SON, THORNAL and O’CONNELL, JJ., concur.