McGeehan, Schettino and Hand.
Appeal is taken from an order of the Law Division denying an application for a writ of habeas corpus.
On June 6, 1947, appellant pleaded guilty and was sentenced by the Somerset County Court of Special Sessions for an assault with intent to kill while armed with a knife, and as a third offender to a term of not less than 15 years and not more than 20 years in the State Prison at hard labor, and he was committed to the State Prison at Trenton, where he has since remained.
On December 1, 1953, appellant petitioned the county court for a writ of habeas corpus alleging that his confinement was unlawful in that he was not represented by counsel nor advised of his right thereto, and that his sentence of 15 to 20 years was excessive, being greater than the maximum term of 12 years provided by the statute.
On December 1, 1953, the County Court decided that the petition was insufficient on its face to warrant issuance of
the writ of habeas corpus on the ground of denial of counsel and that the question of illegal sentence was not properly raised on application for writ of habeas corpus , and entered an order denying the writ.
On March 31, 1954, in an unreported opinion, the Appellate Division affirmed the County Court's order but questioned the correctness of the sentence imposed upon Kline on June 6, 1947, suggesting that he could apply to the County Court at any time for correction of the sentence, pursuant to R.R. 3:7-13.
On August 18, 1954, petitioner filed a motion to correct his sentence. On December 6, 1954, the County Court entered an order correcting the sentence by vacating the original sentence and sentencing the appellant to serve a term in the New Jersey State Prison, at hard labor, of not less than 11 years and not more than 12 years for the offense of assault with intent to kill, and to an additional term in the New Jersey State Prison, at hard labor, of not less than four years and not more than five years since the offense was committed while armed, said additional sentence to run consecutively to the sentence imposed for the principal offense.
On December 9, 1955, Kline filed an application for a writ of habeas corpus , alleging that he was unlawfully imprisoned in that he was without counsel when convicted on his plea of guilty on June 6, 1947, he was without counsel when resentenced on December 6, 1954, that the allegation preferred against him and on which he was sentenced as an armed criminal on December 6, 1954 contained no notice that he was subject to additional punishment for being armed, and finally that when resentenced on December 6, 1954 he received no credit for time already spent in custody.
On April 26, 1956 the Law Division rendered its opinion and by an order dated April 26, 1956 denied the petition. It is from this order that petitioner now appeals.
We consider first whether habeas corpus was the proper procedure for appellant to follow. Appellant contends that the sentence under which he is presently confined is illegal in that no ...