People v. McNally

California Court of Appeal Jul 18, 1955 No. Crim. 5357Published

Before: Doran

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Holding. The court held that a motion to vacate a judgment in the nature of coram nobis cannot be used as a substitute for an appeal, and that the defendant failed to overcome the presumption of validity regarding the original judgment.

Issues

Whether a motion to annul, vacate, and set aside a judgment is a proper substitute for an appeal when the defendant failed to appeal the original judgment.
Whether the defendant met the burden of proof required to set aside a judgment via coram nobis.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Obviously, defendant’s remedy with regard to all of the above noted contentions, was by appeal. Failure to appeal does not, as a matter of law, justify resort to ‘ ‘ coram nobis. ’ ’”

“The law with regard to coram nolis is well settled and its application is limited.”

“The presumption that the judgment is valid in all respects is strong. It is clear that the appellant failed in the trial court to overcome this strong presumption”

DORAN, J.

Defendant was found guilty of grand theft by the jury. A motion for a new trial was argued and denied. Judgment was entered October 15, 1953. No appeal was taken from the judgment or order denying the motion for a new trial. The record reveals, as recited in respondent’s brief that, “. . . on or about April 23, 1954, the defendant filed with the Clerk of the Superior Court, a ‘Motion for the trial records,’ noticing it for hearing ‘for

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the master calendar. ’ On May 17, 1954, McNally also filed with the court his ‘Application for Permission of the Court to Pile Certain Amendments to Original, Pending Motion for Trial Records. ’ The motion for the trial records, as amended, came on for hearing and the same was denied on June 1, 1954. On June 9, 1954, McNally filed with the Clerk of the Superior Court a notice of appeal from the order of the court denying his motion for records. The record on appeal in that case was filed with this Honorable Court and assigned 2d Criminal No. 5241.

“On respondent’s motion to dismiss noticed for September 14, 1954 the appeal (2d Grim. No. 5241) was ordered dismissed and the remittitur issued on or about the 14th of October, 1954, and was filed with the Clerk of the Superior Court October 18, 1954.

“Thereafter, and on or about October 19, 1954, there was filed with the Clerk of the Superior Court defendant Mc-Nally’s ‘Motion to Annul, Vacate and Set Aside Judgment and Conviction. ’

“On November 22, 1954 the motion of the defendant to annul, vacate and set aside the judgment and conviction was denied. On November 30th, the notice of appeal was filed commencing the instant appeal.”

Appellant appears in propria persona. It is argued that the motion to annul, vacate and set aside the judgment was in the nature of

coram nolis.

It is contended by appellant:

1. That defendant did not have effective aid of counsel;

2. That judgment was pronounced against defendant although he claimed that he had shown sufficient cause why judgment should not be pronounced;

People v. McNally

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DORAN, J.

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