judgment'
Appellant pleaded guilty of a violation of .the .Escape Act (Felony). The information reads as follows:. ■ ■
“The prosecuting attorney files an information against Pedro Muñiz Figueroa, who, on or about November 9, 1965, and in Mayagiiez, Puerto Rico, which is part, of the Judicial District of Puerto Rico, unlawfully, willfully, maliciously, and with criminal intent, and while serving a sentence for Robbery, not yet fully served, of from three to ten years in the penitentiary imposed on him by the Superior Court of P.R., Mayagiiez Part, on June 16,' 1964; another for Grand Larceny, not yet served, of from two to seven years in the-penitentiary, .imposed on him by.the Superior Court of P.R., Mayagiiez Part, on February 12, 1959; another, for Robbery, not yet served, of from two to five years in the penitentiary, imposed on him by the Superior Court of P.R., Mayagiiez Part, on February 12, 1959, he escaped from the Penal Farm in Mayagiiez.”
*273The court found him guilty of the offense charged against him hut in subsequent degree and ordered him to serve from 10 to 13 years in the penitentiary.
Against said sentence defendant filed before the Superior Court, San Juan Part, a motion which he entitled “Motion To Vacate Judgment,” and at the same time filed a petition fon disqualification against all the Judges of the Mayagiiez Part of the: Supérior Court. Considering them as a petition for habeas, corpus, the San Juan Part changed venue of both motions to the Mayagiiez Part of the Superior Court.. The. latter set the petition for a hearing on the merits' and appointed an attorney for petitioner:
After denying the motion for change of venue and hearing the parties, said court denied the petition. Against said judgment appellant filed this appeal.
He maintains that the constitutional guarantee of equal protection of the laws has been violated in imposing upon him a penalty in excess of the 10 years fixed by § 152 of theHénal Code, since, as he had committed the offense of escape for the first time, it could not be considered as subsequent on the grounds of convictions for other felonies under the provisions of § 56 of the Penal Code (33 L.P.R.A. § 131).
This contention has already been decided gainst appellant in Acosta Linares v. Delgado, Warden, 96 P.R.R. 396 (1968)
However and even though appellant has not raised it, his' conviction for said offense of escape in subsequent degree was inappropriate in the absence of the allegation in the information to- the effect that the subsequent offense is charged against defendant. The reference to the sentences he was' serving were part, and were necessary elements of the offense-of escape.
The judgment appealed from is reversed, and the sentence rendered against defendant in case G-65-320 of the Superior Court, Mayagiiez Part is vacated and the case is remanded with instructions to the trial court to enter a new sentence *274within the limits fixed in § 152 of the Penal Code (33 L.P.R.A. § 509).
It was so decreed and ordered by the Court as witnesses the signature of the Chief Justice. Mr. Justice Santana Becerra concurs, but expresses his position on a separate opinion.
(s) Luis Negrón Fernández Chief JusticeI attest:
(s) Joaquín Berríos
Clerk
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