People v. Hamlin

PETERS, P. J.

In April of 1953 defendant pleaded guilty to the felony of assault with intent to commit rape, and was given probation. In October of that same year, after a court hearing, probation was revoked. So far as the record shows, no appeals were taken from these orders. On August 1, 1956, defendant filed a “Motion to Quash, Vacate, and Set Aside Judgment.” This motion was based on allegations that (1) the verdict was contrary to law; (2) that defendant has been placed in double jeopardy, and (3) that the trial

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judge and prosecuting attorney had been guilty of prejudicial misconduct. The motion was denied. Defendant appeals.

On the appeal counsel for appellant makes no reference to the motion nor to the grounds upon which it was based. The sole point urged is that the trial court abused its discretion in revoking probation. As already pointed out, no appeal from the order revoking probation was taken. The only appeal is from the order refusing to vacate the judgment.

This motion to vacate, made nearly three years after the date of the order revoking probation, and over three years from the date appellant pleaded guilty to the offense charged, can and should be treated as a petition for a writ of error

'coram nobis. (People

v.

Adamson,

34 Cal.2d 320 [210 P.2d 13];

People

v.

Remling,

146 Cal.App.2d 476 [304 P.2d 97];

People

v.

Harden,

118 Cal.App.2d 563 [258 P.2d 531];

People

v.

Cook,

97 Cal.App.2d 284 [217 P.2d 498];