People v. McGillis

BRAY, J.

Defendant appeals from an order of the superior court setting aside a previous order entering a new judgment after vacating a prior one.

Question Presented

Was a judgment not appealed from, setting aside a judgment which after sentencing a defendant to felony imprisonment improperly suspended such judgment on condition that defendant serve one year in the county jail, subject to collateral attack?

[93]

Record

Defendant, an osteopath, was found guilty of two violations of section 11500, Health and Safety Code (sales of narcotics). May 8, 1953, his motion for probation was denied and judgment imposed by Judge Twain Michelsen as follows: “It was ordered, adjudged and decreed that the defendant Prank Laughlin McGillis be punished by imprisonment in the State Prison of the State of California for the term prescribed by law, on each of said counts. Sentence was thereupon suspended on each of said counts on condition that the defendant be confined in the County Jail of the City and County of San Francisco for the term of one (1) year, sentences to run concurrently with each other.”

Defendant served his one year. December 3, 1954, he moved the superior court (Judge Orla St. Clair presiding) to vacate that judgment and enter a new judgment on the ground that the former was void. The deputy district attorney stated that he made no objection. The court set aside the prior judgment and “. . . ordered, adjudged and decreed that the said defendant, Frank Laughlin McGillis, be punished by imprisonment in the County Jail of the City and County of San Francisco for the term of one (1) year, credit for time served.”

December 18, 1957, at the request of Judge Michelsen, the district attorney moved the superior court (Judge Harry Neubarth presiding) to set aside the Judge St. Clair judgment and to restore the original Judge Michelsen judgment. The court “. . . Ordered that the said judgment and sentence entered and imposed herein on December 3, 1954, be and the same is hereby vacated and set aside, and that the said judgment and sentence entered and imposed herein on May 8, 1953, be and it is hereby restored of record as the final and valid judgment herein,” and the final judgment was interpreted as a misdemeanor.