Stuart v. Superior Court of Humboldt Cty.

Opinion

WHITE, P. J.

Petitioner challenges two Humboldt County Superior Court orders. The first revoked a stay of execution of his sentence for violation of Health and Safety Code section 11350. The second denied his motion to reinstate the stay or to permit him to withdraw his plea of guilty.

One condition bargained for by petitioner when he entered his plea of guilty, and accepted by the trial court at sentencing, was that the sentence imposed would be stayed pending resolution of petitioner’s appeal. Petitioner was sentenced to March 1, 1979, to two years, with a stay as agreed. On March 6, 1979, he filed his notice of appeal, seeking to challenge denial of his Penal Code section 1538.5 motion.

Two felonies were subsequently charged against petitioner (receiving stolen property and possession of a sawed-off shotgun), and on March 29, 1979, the district attorney moved to revoke the stay. On April 4, 1979, the motion was granted and petitioner was committed to the Department of Corrections. Petitioner moved to withdraw his guilty plea or to reinstate the stay, but his motion was denied May 2, 1979. This writ petition followed.

The petition challenges both trial court orders and seeks the alternative remedies of reinstatement of the stay or permission to withdraw the guilty plea, though petitioner expresses a preference for the former remedy. We agree with the Attorney General that because filing of the notice of appeal preceded both challenged orders, the trial court’s

[185]

jurisdiction extended only to granting or revoking the stay of execution of sentence. Petitioner’s motion to withdraw his plea could not have been properly granted because of the general rule that “once an appeal has been taken from a judgment of conviction, the trial court is without jurisdiction to vacate the judgment. [Citations.]”

(People

v.

Haynes

(1969) 270 Cal.App.2d 318, 321 [75 Cal.Rptr. 800]).

We reject the Attorney General’s suggestion that petitioner’s remedy is by appeal. If the trial court erred in revoking its stay of execution, it will benefit petitioner little to discover that fact after the appeal process has been exhausted. The effect of waiting in prison for a decision on any appeal from the order revoking the stay would likely be the same as would have resulted had petitioner never bargained for the stay. Without the bargain, petitioner would have remained in custody during the pendency of his appeal from judgment of conviction unless he was granted bail.