¶1 The respondent concedes, and rightly so, that the maximum imprisonment prescribed by statute, G.S. 14-54, upon conviction for felonious breaking or entering is a period of ten years.
¶2 Accordingly, while the minimum term prescribed by the judgment under review is for a term of seven years, the maximum imprisonment allowable under the judgment is a period of twelve years, which is in excess of the maximum provided by the controlling statute.
¶3 This invalidity of the judgment works neither a discharge of the prisoner nor a new trial, but rather a remand of the cause to the Superior Court of Catawba County for the entry of a proper judgment. In re Sellers, 234 N.C. 648, 68 S.E. 2d 308; In re Ferguson, 235 N.C. 121, 68 S.E. 2d 792; S. v. Miller, ante, 427.
¶4 To the end that decision here reached may be complied with, the respondent Director of the State’s Prison will deliver the defendant into the custody of the Sheriff of Catawba County prior to the convening in that county of the next term of Superior Court for the trial of criminal eases after the certification of this opinion. The court below in pronouncing sentence will give the defendant credit for the time served under the judgment on the first count which is hereby vacated.
¶5 Error and remanded.