CRIMINAL LAW — Criminal Penalty — Constitutionality. — Appellant appeals a post-conviction relief judgment which reduced his 10 to 25 year robbery sentence to 5 to 25 years. He cannot prevail in his contention that a judicial modification of an unconstitutional statutory penalty amounts to judicial legislation prohibited by the constitution. The same argument has been rejected in prior case law.
WHITE, J.
Appellant appeals from a post-conviction relief judgment (PC. 1) which reduced his ten to twenty-five year robbery sentence to five to twenty-five years, contending that judicial modification of an unconstitutional statutory penalty to render the statute constitutional is judicial legislation prohibited by Article III, section 1, Constitution of Indiana (separation of powers), and ultimately contending that the imposition of any sentence under the unconstitutional statute is error. Exactly the same argument was rejected in Landaw v. State (1972), 258 Ind. 67, 279 N.E.2d 230; Jacobs v. State (1972), 153 Ind. App. 102, 286 N.E.2d 224; and Davis v. State (1973), 156 Ind. App. 534, 297 N.E.2d 450.
The judgment is affirmed.
Sullivan, P.J., and Buchanan, J., concur.
NOTE. — Reported at 319 N.E.2d 866.