
    Timothy Andrew PHILLIPS, Petitioner, v. Clyde ALLEN, Superintendent, Orlando Municipal Prison Farm, Orlando, Florida, Respondent.
    No. 41580.
    Supreme Court of Florida.
    Dec. 8, 1971.
    Michael F. Cycmanick, of Law Offices of James M. Russ, Orlando, for petitioner.
    Robert L. Hamilton, Asst. City Atty., for respondent.
   PER CURIAM.

Petitioner, an indigent, plead no contest to, and was convicted of, six violations of municipal ordinances in the Municipal Court of Orlando, Florida. Each conviction resulted in alternative sentences requiring petitioner to either pay a fine or serve time in jail. Being indigent, petitioner went to the Municipal Prison Farm.

He then petitioned for a writ of ha-beas corpus on the contention that he was forced to choose jail solely on account of his indigency, in violation of Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed. 2d 130 (1971) and Martin v. State, 248 So.2d 643 (Fla.1971). This Court granted the writ and dispensed with the return. We then relinquished jurisdiction temporarily to the Municipal Court of Orlando so that it could consider the nature of the fines imposed in light of Tate and Martin. In consequence, the Municipal Court modified its sentence: it vacated all money fines imposed, and reduced the total period of confinement from 240 to 90 days.

With this modification of petitioner’s sentences, any issue regarding the fines evaporates and no further question exists regarding a possible violation of Tate v. Short, supra, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) or Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773 (1970).

The writ heretofore issued is discharged.

It is so ordered.

CARLTON, ADKINS, BOYD and DEKLE, JJ., concur.

ERVIN, Acting C. J., dissents with opinion.

ERVIN, Acting Chief Justice

(dissenting):

I am unable to agree to this handling. It’s all too patent a discrimination. If Petitioner had been given a prison sentence only and not a fine also originally there would he no discrimination. But to redo the judgment of conviction and impose imprisonment after the fact when it is established Petitioner is an indigent who couldn’t pay the alternative fine is too neat a precedent which simply by indirection authorizes trial judges to impose alternative imprisonments after it develops indigents can’t pay their fines. The Petitioner is receiving in this case the equivalent pro tanto in terms of imprisonment what he would have received had the formality of redoing the judgment of conviction not been undertaken. I don’t believe the Tate case intended this result retroactively. I would grant the writ and discharge Petitioner. 
      
      . For violation of Orlando Ordinance: 39.63, $250 or 30 days; 39.75, $100 or 30 days; 39.114, $150 or 30 days; 43.56-1, $300 or 60 days; second count of 39.144, $300 or 60 days; second count of 39.63, $250 or 30 days.
     