
    STATE, ex rel. DREXEL, Plaintiff, v. ALVIS, Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 4268.
    Decided July 20, 1949.
    Hon. Herbert S. Duffy, Atty. Geni., Walter R. Hill, Assist. Atty. Geni., Columbus, for defendant.
   OPINION

By MILLER, PJ.

This is an application for a writ of habeas corpus. The record discloses that on September 17, 1946, the plaintiff was sentenced to the Ohio State Penitentiary for a term of from one to fifteen years on a charge of burglary. This conviction being his third made him subject to the penalty prescribed by the habitual criminal act, §13744-1, -3 GC. He was later indicted under the terms of this section, convicted and sentenced on October 23, 1946, to a term of fifteen years in the Ohio State Penitentiary. Sec. 13744-3 GC provides that upon conviction under this section the previous sentence shall be vacated. This was not done and the plaintiff is now serving in the Ohio Penitentiary under both sentences. The plaintiff is urging that this constitutes double jeopardy and therefore the second conviction is illegal.

Granting for the purposes of argument, but not deciding, that the plaintiff is correct in his contention, the plaintiff is still not entitled to his release as he is lawfully committed under the burglary conviction of September 17, 1946. He is, therefore, not being illegally restrained of his liberty and is not entitled to the relief sought. However, in fairness to this plaintiff, we are of the opinion that the record should be corrected and the same will no doubt be done upon proper application to the trial court.

The application is denied.

HORNBECK and WISEMAN, JJ, concur.  