In Re Fountain

[717]

Opinion

BROWN (Gerald), P. J.

—Edward A. Fountain, through his attorney, petitions this court for a writ of habeas corpus to relieve him from the consequences of failing to file a timely notice of appeal from a judgment convicting him of possessing a controlled substance for sale (Health & Saf. Code, § 11351). Fountain had pleaded guilty and was sentenced tó prison. This court issued an order to show cause returnable before the superior court with directions to report back findings of fact and conclusions of law.

Fountain was represented by appointed counsel in the trial court. That counsel did not file a notice of appeal nor is it anywhere suggested in the records of this proceeding he was requested to do so. Fountain’s mother, however, paid $500 to present counsel within the 60-day period to file a notice of appeal. That fee clearly related to the processing of an appeal. No other justification for it appears in the record.

The attorney failed to file a notice of appeal until too late, and then filed an inadequate notice which did not meet the requirements of Penal Code section 1237.5 or California Rules of Court, rule 31(d).

Petitioner’s attorney alleges Fountain’s mother asked if he would handle the appeal. She gave him $500 and represented she would pay the balance within the 60-day period within which a notice should have been filed. He asserts he said he would hold the $500 apart from other funds, and not proceed until the full sum was delivered to his office. The balance (an amount nowhere specified) was not paid in time and the attorney did not file the jurisdictional notice.

The Attorney General seizes upon the fact the petition constitutes more of a timorous apologia for the attorney’s abandonment of Fountain’s interests than an advocacy of those very interests and concludes “This is surely one of the more ludicrous applications for habeas corpus . . . .” We would agree, but not for the reasons advanced by counsel for the respondent.

Central to the Attorney General’s argument is the notion petitioner Fountain’s mother (who the record indicates was on welfare) was somehow on a frolic of her own when she advanced $500 for counsel to handle the appeal and Fountain in no way authorized, ratified, requested or consented to that action. The superior court judge who heard the