Opinion
No. HH-242.
October 28, 1977.
Petition for Writ of Habeas Corpus — Original Jurisdiction; D.S. Walker, Judge.
Clifton Kelly Massey, in pro per.
Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
By Petition for Writ of Habeas Corpus, petitioner-defendant challenges the validity of a ten-year sentence "at hard labor" imposed upon him August 13, 1970, in the Circuit Court of Bradford County, Florida, for the offense of forgery and uttering a forgery (Case No. 2270). He urges that the offense is a third degree felony and that the maximum penalty is five years. Likewise, on August 13, 1970, in the same court, in Case Numbers 2271 and 2272, he received concurrent five-year sentences for the offenses of forgery and uttering a forgery, each to be served "at hard labor". We treat the petition as one to amend said sentences.
When the petitioner was before the court for judgment and sentence, Section 831.01, Florida Statutes (1969) was applicable and provided a maximum sentence of ten years for such offense.
The provision "at hard labor", appearing in said sentences, is merely surplusage and the same is hereby stricken as such. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975), and Ussery v. State, 350 So.2d 839 (Fla. 1st DCA 1977). As amended, the sentences referred to are
AFFIRMED.
SMITH, Acting C.J., and ERVIN, J., concur.