People v. Martin

PEEK, J.

The People of the State of California move to dismiss the appeal of Ronald Paul Martin from a judgment of conviction of armed robbery in two counts.

Defendant chose to appear and defend in propria persona at the trial of the causes. Jury verdicts of guilty were rendered on August 23, 1962, at which time defendant waived probation and time for sentencing. Judgment of conviction was entered and he was thereupon sentenced to the state prison for the term prescribed by law.

Five days later on August 28, 1962, defendant presented to the clerk a notice of motion for a new trial. The clerk filed the notice and there appears on the document, immediately above the clerk’s certificate of filing, the following: “Ordered filed by Judge Frank C. Charvat,” which judge had presided throughout the proceedings in the superior court.

The motion was set to be heard on September 7, 1962, more than 10 days after the entry of judgment. On that date the motion was argued and denied. Immediately following the denial defendant stated in open court that he would forthwith file his written notice of appeal, and requested the court to set bail pending appeal. During a short discussion on the question of whether defendant was entitled to bail, neither the court nor the prosecuting attorney questioned the right to appeal. Bail was denied on that same day and defendant presented his written notice of appeal and it was filed by the clerk. Inscribed on the notice immediately above the clerk’s certificate of filing is the statement: ‘ ‘ Ordered filed by Judge Charvat.” The notice specified those portions of the record

[617]

to be prepared in support of the appeal, and the record on appeal is now substantially complete.

The motion for dismissal is made on the ground that the appeal is not timely in that it was not filed within 10 days after rendition of the judgment on August 23, as required by rule 31, California Rules of Court.

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That rule provides in part as follows: “In the cases provided by law, an appeal is taken by filing a written notice of appeal with the clerk of the superior court within 10 days after the rendition of the judgment or the making of the order. ...” It is noted that the appeal could have properly related only to the judgment, and not to the order denying the motion for a new trial as the latter is not an appealable order. (Pen. Code, § 1237.)