People v. Foley

WHITE, P. J.

On September 26, 1951, an information was filed by the district attorney against defendant, charging grand theft in two counts, numbered I and III, violation of Vehicle Code, section 503, in two counts (II and IV), and one count of forgery in count V.

Defendant was duly arraigned and entered a plea of not guilty to the offenses charged in the information. Subsequently, defendant with his counsel present, and by leave of court, withdrew his plea of not guilty as

to

count II of the information (violation of section 503, Vehicle Code), and entered a plea of guilty thereto.

Defendant’s request for leave to file an application for probation was granted and on

December 18, 1951, judgment

was pronounced as to said count II of the information, by which defendant was sentenced to serve one year in the county jail. Execution of sentence was suspended and defendant was granted conditional probation for a period of three years. In July of 1952, the probation order was modified to require defendant to pay a fine in the sum of $40.

On March 19, 1953, the order theretofore entered granting probation was revoked and sentence imposed on December 18, 1951, as to count II of the information, ordering sentence of one year in the county jail, to be in full force and effect.

On

March 30, 1953,

defendant signed a written notice of appeal “from the judgment in the above action and from the whole thereof.”

The People have filed a motion to dismiss the appeal on the ground that the judgment from which said appeal was

[293]

taken became final in December of 1951, and that the time allowed for an appeal (rule 31, Rules on Appeal) has long since expired.

Appellant had full opportunity to appeal from the judgment entered on December 18, 1951, even though execution thereof had been suspended after the judgment was pronounced