People v. Buccheri

Opinion

COBEY, Acting P. J.

Angelino Paul Buccheri appeals from an order made on August 5, 1968, refusing to set aside the order of October 19, 1965, revoking the seven-year probation granted him on December 4, 1963, and December 17, 1963, following the suspension of the execution of his sentences in three cases (Cr. Nos. 273498, 280292, 281175) in which he pled guilty to burglary and attempted burglary.

1

Appellant failed to follow below the procedure prescribed by Penal Code section 1203.2 for direct attack upon an order revoking probation after pronouncement of judgment. This statute provides that within 30 days after

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the court has notice that execution of the sentence has commenced, the court may, upon motion for good cause, set aside the order revoking probation. Instead appellant orally moved in open court on July 15, 1968, to set aside the revocation order and dismiss all three cases on the ground that the trial court lost jurisdiction over him when both the district attorney and the court below failed to heed, until February 1968, his written request made during October or December of 1966 that hearings on the revocation of his probation be immediately held or the charges dropped.

2

This claim of loss of jurisdiction rests upon an alleged violation of appellant’s right to a speedy trial granted him by both the United States and the California Constitutions. (U.S. Const., Amend. VI; Cal. Const., art. I, § 13.) Appellant argues that he was entitled constitutionally to the rights accorded to those defendants in federal correctional institutions by Penal Code section 1381.5, and to those defendants in prison elsewhere by the interstate compact on detainers, Penal Code section 1389, et seq.

Appellant’s position is untenable. He had complete trials in all three cases in 1963. Neither statute applies to his situation, as he concedes. He was never a prisoner in a federal correctional institution during the period at issue, namely, from October or December 1966 to February 1968, when he was brought back to California. Arizona, where he was imprisoned in 1966 and 1967, is not a party to the interstate compact on detainers. Furthermore, the purpose of the compact is to provide cooperative procedures whereby persons can, when imprisoned in one state, be speedily brought to trial in another state on the charges pending against him in the latter state. (See Pen. Code, § 1389, art. I.) There were no such charges pending against appellant in California in 1966 and 1967 on which he was