UNDERCOFLER, Presiding Justice.
This is a habeas corpus seeking to set aside a sentence of two years probation and a $2,000 fine on a nolo contendere plea for possessing phencyclidine. Appellant was indicted and sentenced under Code Ann. § 79A-903 (b) (4) prior to that section being held unconstitutional by this court in Sundberg v. State, 234 Ga. 482 ( 216 S.E.2d 332) (1975). The trial court held the Sundberg decision was not retroactive and dismissed the petition. We reverse. "A criminal indictment and subsequent conviction thereof based upon a void statute is nugatory, without any force or effect and should be dismissed." Cadle v. State, 136 Ga. App. 232 (2) ( 221 S.E.2d 59) (1975). Habeas corpus is not an available remedy for the recovery of a fine. Code Ann. §§ 50-101, 50-127 (1).
Judgment reversed. All the Justices concur, except Jordan, Ingram and Hill, JJ., who concur specially.
UNDERCOFLER, Presiding Justice.
ARGUED JULY 12, 1976 — DECIDED SEPTEMBER 7, 1976.
HILL, Justice, concurring specially.
I dissented in Sundberg v. State, supra. Nevertheless, in Sundberg v. State a majority of this court held Code Ann. § 79A-903 (b) (4) to be unconstitutional and that is the law. The correctness of Sundberg is not in issue here. The issue here is whether a decision of this court, holding a section of our Code to be unconstitutional, shall be given retroactive effect in favor of a defendant who was indicted, tried and sentenced under an unconstitutional provision of law. I agree with the majority that a person cannot be held in prison pursuant to a sentence imposed under an unconstitutional law and I therefore concur in the judgment.
I am authorized to state that Justice Jordan and Justice Ingram join in this special concurrence.