397 P.2d 307

#### Martin LUCERO, Petitioner, v. Harold A. COX, Warden of the New Mexico State Penitentiary, Respondent.

No. 7748.

Supreme Court of New Mexico.

Dec. 7, 1964.

Rehearing Denied Dec. 7, 1964.

.Edward T. Johnson, Santa Fe, for' petitioner.

Earl E. Hartley, Atty. Gen., Harry S. Connelly, Jr., Sp. Asst. Atty. Gen.,' Santa Fe, for respondent.

OPINION ON MOTION FOR REHEARING

PER CURIAM:

Upon consideration of motion for rehearing, the opinion heretofore filed herein is withdrawn and the following substituted therefor:

PER CURIAM:

The issues here presented are generally the same as those discussed in Sneed v. Cox, N.Mex., 397 P.2d 308, decided this date. Of course, the charges against petitioner and the dates and sentence differ. In addition, petitioner here did not raise any issue in the district court concerning the legality of his sentence; nevertheless, the sentence was held to be erroneous and petitioner was returned to Chaves County to be resentenced.

The differences in the facts here present and those passed on in Sneed v. Cox, supra, are not material. The discussion in that opinion is fully applicable here.

The writ should therefore be discharged and petitioner remanded, to the custody of respondent to serve the legal sentence imposed on the 6th day of July, 1964, but effective as of the 19th day of April, 1962, the date of the original sentence.

It is so ordered.