Plezbert v. Superior Court

[171]

Opinion

KANE, J.

Penal Code section 1382, subdivision 2, provides that the court, unless good cause to the contrary is shown,

must

order the action dismissed when a defendant “is not brought to trial in a superior court

within 60 days after .

. .

the filing of the remittitur in the trial court.”

(Italics added.)

On July 28, 1971, 78 days after a remittitur had been filed in respondent court, petitioner moved to dismiss the indictment filed against him.

At the hearing on the motion, the only reason for the delay advanced by the prosecution was that “our office was not notified of the filing of the remittitur ... so we were in no position to proceed in the matter.”

In denying the motion, the trial court observed: “It is the opinion of this Court that in this complicated, clerical world in which we live, trying to administer criminal justice, that clerical errors such as occurred in this case, the failure of the Clerk to properly chart and call to the attention of somebody the fact that a remittitur had come down, until a period some 45 days, I believe, after it was received in this court, is not so unusual as to be an abuse of discretion for this Court to deny the motion.”

On September 3, 1971, petitioner sought a writ of mandate in this court to compel the respondent to dismiss the indictment, or, in the alternative, a writ of prohibition to prevent respondent from proceeding with the prosecution.

On September 10, 1971, we denied the petition without opinion.

On October 27, 1971, the Supreme Court granted a petition for hearing, transferred the cause and retransferred the cause to this court, with directions to issue an alternative writ of prohibition, citing

People