People v. Blalock

California Court of Appeal May 11, 1959 No. Crim. 6621Published

Before: White

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Holding. The court held that an appeal from the denial of a motion to vacate a judgment is not necessarily frivolous or sham when it raises substantial questions regarding the trial court's jurisdiction to retry a defendant after a prior discharge.

Issues

Whether an appeal from the denial of a motion to vacate a judgment is frivolous when the defendant claims the trial court lacked jurisdiction to retry him after a prior discharge.
Whether a trial court has the authority to vacate an order discharging a defendant from custody after a mistrial.

Disposition. denied

Quotations verified verbatim against the opinion

“We are convinced that the instant appeal cannot be classified as frivolous and sham but presents substantial questions of law which should be briefed and determined upon the merits.”

“where a judgment is void on the face of the record it may be attacked either by appeal from the judgment or by a motion to vacate the judgment.”

WHITE, P. J.

Respondent moves to dismiss this appeal on the ground that there is no merit therein; that it is sham and frivolous, and presents no appellate objective.

The record reflects that by an amended information, filed by the district attorney of the County of Santa Barbara, de

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fendant was accused of the crime of burglary. Five prior convictions of felonies were also alleged, all for the crime of burglary in the state of Texas. Two trials before juries resulted in mistrials while in a third trial the jury was unable to agree upon a verdict. A fourth trial before another jury resulted in a verdict finding defendant guilty of burglary as charged in the amended information, and which was found to be burglary of the second degree. All prior convictions charged against him were admitted by defendant to be true. Accordingly, judgment was pronounced July 1, 1957, sentencing defendant to state prison for the term prescribed by law. No appeal was taken from such judgment.

Thereafter, and on December 20, 1957, defendant filed in the superior court a motion to annul, vacate and set aside the aforesaid judgment.

The main contention advanced in support of this motion was based upon the fact that in one of the trials preceding the one resulting in conviction of defendant, the record reveals that defendant’s motion for a mistrial was granted. “The Jury was then discharged and the

defendant discharged from custody.”

(Emphasis added.) This order was made on March 12, 1957. On March 14, 1957, with defendant and his counsel present, the court made the following order: “Good cause appearing therefore the Court upon its own motion orders that the order heretofore made discharging the defendant from custody, be, and the same is hereby vacated and set aside.”

It is appellant’s contention that when the trial court discharged appellant from custody it had no jurisdiction to again try him upon the same charge, and, that the trial court was without power to set aside its order discharging appellant since the order made was in the exercise of its judgment.

People v. Blalock

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WHITE, P. J.

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