People v. Smith

McCOMB, J.

This is a motion to dismiss an appeal from (1) an order granting probation, and (2) an order denying a motion for a new trial.

[362]

These are the essential facts:

May 3, 1939, defendant was found guilty of violating section 501 of the Vehicle Code. May 9, 1939, defendant made a motion for a new trial, which was denied but he was permitted to file an application for probation and the time for the hearing on his application for probation and for pronouncing judgment and sentence was set for May 19, 1939. Thereafter the matters were regularly continued for hearing to and including June 2, 1939, on which date, without pronouncing judgment and sentence, the trial judge granted defendant’s application for probation and suspended further proceedings. Defendant gave notice of appeal from the order placing him on probation and also from the previous order of the trial court denying his motion for a new trial.

These are the questions to be determined:

First: Is an order granting probation without the imposition of judgment and sentence an appealable order?

Second: Is there a time limit within which a defendant must give notice of appeal from an order denying his motion for a new trial in a criminal case?

The first question must be answered in the negative. The law is established in California that an order granting probation and suspending the pronouncement of judgment and sentence is not an appealable order.

(People

v.

Noone,

132 Cal. App. 89, 92 [22 Pac. (2d) 284] ;

Hale

v.

Superior Court,

133 Cal. App. 332, 333 [23 Pac. (2d) 1074] ;

People

v.

Hartman,