¶1(specially concurring).
¶2I do not agree with the statement in the court’s opinion that the action is not one, “to correct an erroneous sentence as in-Sneed,” (Sneed v. Cox, 74 N.M. 659, 397 P. 2d 308 (1964).
¶3We held in Lott v. Cox, 75 N.M. 102, 401 P.2d 93 (1965) that a proceeding under the Habitual Criminal Act has for its purposes the enhancing of the penalty for the crime of which a defendant stands convicted. It necessarily follows that a complaint under Rule 93 about a sentence imposed under the Habitual Criminal Act is an attack on the sentence and not on the conviction. Accordingly, whatever the reason for the court’s actions, the result was nothing more than a vacating of a sentence held by the court to be erroneous or void. In such circumstance the rule of Sneed applies and appellant was entitled to credit on the new sentence imposed according to law for time served under the vacated sentence.
¶4The proper conclusion is reached in the opinion of the court, and I specially concur therein for the reasons set forth.