People v. Agnew

California Court of Appeal Sep 4, 1947 No. Crim. 4159Published

Before: White

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Holding. The court held that the orders appealed from—modifying probation, denying a motion to vacate a previous order denying a new trial, and denying a petition for a writ of error coram nobis—are nonappealable. Consequently, the court dismissed the appeal.

Issues

Whether an order modifying the terms of probation is an appealable order.
Whether an order denying a motion to vacate a previous order denying a new trial is an appealable order.
Whether an order denying a petition for a writ of error coram nobis is an appealable order when the issues raised were reviewable on a prior appeal.

Disposition. dismissed

Quotations verified verbatim against the opinion

“it necessarily follows that an order modifying or changing an order granting probation is also not an appealable order.”

“The second order appealed from, denying appellant’s motion to set aside and vacate an order denying his motion for a new trial, made after appeal and decision by the appellate court, is also a nonappealable order.”

“All of the allegations contained in the appellant’s petition for a writ of error coram nobis were reviewable on motion for a new trial and on appeal, and, therefore, cannot be made the ground of an application for the writ of error coram nobis.”

WHITE, J.

This is a motion by respondent to dismiss an appeal taken by appellant from (1) an order of the Superior Court of Ventura County denying appellant’s motion to vacate orders extending the period of his probation and modifying the terms thereof; (2) an order denying the motion of appellant to “set aside, vacate and nullify” an order denying a motion for a new trial; and (3) an order granting respondent’s motion to dismiss appellant’s petition for a writ of

coram nobis.

Concerning the facts surrounding the aforesaid orders, it appears that on January 31, 1946, appellant was convicted by a jury of the crime of perjury; that he thereupon made a motion for a new trial which was denied. Subsequently, appellant made application for probation, and on February 23, 1946, the same was granted for a period of 13 months upon the condition that for the first 12 months thereof appellant be confined in the Ventura County jail. From the judgment and the order denying his motion for a new trial appellant appealed, and on March 22, 1946, he was released on bond pending such appeal. On January 22, 1947, Division Two of this court rendered its decision affirming the foregoing judgment and order denying appellant’s motion for a new trial

(People

Agnew,

77 Cal.App.2d 748 [176 P.2d 724]). Upon the going down of the remittitur, which was lodged in the trial court on the 25th day of February, 1947, appellant refused to surrender to the sheriff, contending that the jail term imposed upon him as a term of probation had expired. Thereupon, on March 5, 1947 the district attorney of Ventura County filed his motion for an order modifying the terms of probation. A hearing was had upon said motion on March 10, 1947, following which the court modified the terms of the foregoing probation as follows:

“That the defendant, R. W. Agnew be confined in the County Jail of Ventura County for a period of eleven (11) months, the Court taking into consideration the fact that the defendant has heretofore been confined in said County jail for a period of one (1) month of the period of twelve (12) months heretofore ordered in the Original Order Admitting to Probation ;

“That the period of probation be, and hereby is extended to a ueriod of five (5) years from the date of the Original Order

[410]

People v. Agnew

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WHITE, J.

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