People v. Francis

CARTER, J.

Defendant was charged by information in two counts with passing two checks without sufficient funds with the intent to defraud; both checks (one in each count) ivere passed on the same day, in the same place, Bennie’s Clubhouse, to different employees in that place and drawn on the same bank; one (count one) was for $60, the other (count two) for $25. He was also charged Avith a prior conviction and imprisonment for conspiracy to commit pandering.

[336]

Defendant with his counsel, Mr. Testa, pleaded not guilty to both counts on his arraignment on April 25, 1952, and trial was set for June 19, 1952. On June 3d, defendant substituted Mr. Larsen as his attorney in place of Mr. Higgins. (What happened to Testa does not appear.) On the day set for trial (June 19th) defendant and his counsel Larsen requested and were granted a continuance to July 30th. On that date defendant and his counsel asked and were permitted to withdraw his plea of not guilty to count one, and pleaded guilty to that count; he admitted the prior conviction; he waived time for sentence on that count and was granted leave to apply for probation. The hearing for probation, sentencing for count one, and disposition of count two were set for September 12, 1952. The probation officer’s report, recommending denial, was filed September 11th. On the 12th, defendant and counsel appeared and the matters to be considered at that time were continued at defendant’s request to October 3, 1952. On that date at defendant’s request the hearing was continued to October 10th. On the 10th, defendant with his counsel moved to withdraw his plea of guilty to count one. That motion and the application for probation were denied and sentence was pronounced. Defendant thereupon gave notice of appeal. Thereafter defendant’s motion to vacate the judgment and for permission to withdraw the appeal was denied. After probation was denied and judgment given, the second count was dismissed by the court on the motion of the prosecuting attorney in the “interest of justice.”

Defendant appeals from the judgment and the denial of his motion to withdraw his plea. Inasmuch as an order denying the application to withdraw the plea of guilty by the defendant is not appealable

(People

v.