This is a habeas corpus case in which we granted a certificate of probable cause to appeal. Our primary concern was and is that the judicial branch of government is without authority to countermand lawful orders of the executive branch pardoning or paroling a prisoner or commuting his sentence. Also of concern was the absence of a full evidentiary hearing. For the reasons stated hereinafter, we remand for further proceedings.
Petitioner was indicted in 1974 by the February term grand jury of Clayton County for armed robbery, was tried in case number 8-12778, was convicted, and was sentenced to life imprisonment on March 28,1974, which conviction was affirmed on appeal in Bell v. State, 234 Ga. 473 (216 SE2d 279) (1975).
On July 28,1975, the Department of Corrections, by *190letter from the office of the commissioner to petitioner, stated that petitioner would be discharged on September 9, 1975.
On September 3, 1975, the State Board of Pardons ' and Paroles, by letter of its chairman to petitioner’s mother, stated that petitioner would be discharged from prison on September 9, 1975.
Petitioner was released from Reidsville State Prison on September 9, 1975. He returned to Clayton County.
On October 21,1975, a bench warrant was issued by the Superior Court of Clayton County for the arrest of petitioner based upon the 1974 grand jury indictment for armed robbery in case number 8-12778. Petitioner was rearrested the following day and was returned to Reidsville.
Petitioner sought habeas corpus relief. The warden stipulated that when petitioner was released from Reidsville on September 9,1975, he was "unconditionally discharged.” The habeas court remanded the petitioner to the custody of the warden after finding that petitioner’s discharge after serving only 18 months on a life sentence was erroneous. The habeas court found further as follows: "While it is not possible, based upon the evidence before this Court, to determine precisely why Petitioner was released from prison after serving less than two years of a life sentence, the evidence clearly establishes that Petitioner’s life sentence has not expired, that the sentence has not been commuted, and that Petitioner has not been paroled or pardoned. In this habeas corpus proceeding Petitioner bears the burden of showing that his current restraint is illegal or otherwise invalid. The evidence before this Court shows, at most, that officials of the Department of Offender Rehabilitation and the Board of Pardons and Paroles were under the impression that Petitioner was to be released from prison in September 1975. This Court finds it incredible that these officials would have been under this impression had they been aware of Petitioner’s 1974 conviction and life sentence. Accordingly, this Court finds that any statements or assertions made to Petitioner or his family by State officials concerning his release date of September 9,1975, were made without knowledge of the 1974 life sentence.”
Argued June 14, 1976 Decided June 24, 1976 Rehearing denied July 8, 1976. Paul S. Weiner, Paul McGee, for appellant. John W. Underwood, District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellee.We share the habeas court’s perplexity. Unfortunately, we are unable to agree with the findings and conclusions such perplexity arouses.
When a prisoner in a habeas corpus proceeding shows that he was unconditionally discharged from prison after receiving a sentence for armed robbery, was rearrested upon a warrant charging him with that armed robbery, and was reimprisoned for that armed robbery without a hearing, the burden in a habeas corpus proceeding shifts to the warden to show that the subsequent restraint is legal.
This case therefore is remanded to the habeas court to enable the warden to produce evidence that petitioner’s sentence has not been commuted or otherwise expired, that petition has not been paroled or pardoned, and that petitioner’s current imprisonment is legal.
Remanded with direction.
All the Justices concur, except Gunter, Ingram and Hall, JJ., who dissent.