In Re Hernandez

Opinion

MOLINARI, P. J.

Petitioner pleaded guilty to a misdemeanor in the municipal court. He filed an application in the appellate department of the superior court for relief from default for not filing a notice of appeal within the time prescribed by rule 182(a) of the California Rules of Court (hereinafter “the Rules of Court”). In this habeas corpus proceeding we issued an order to show cause why petitioner’s notice of appeal should not be filed. Respondents have filed their return to the order to show cause in which the allegations of the petition are uncontested.

Petitioner entered a plea of guilty to a misdemeanor charge on December 11, 1973. A notice of appeal from the judgment of conviction was filed on his behalf on January 16, 1974. The clerk of the court refused to accept it for filing because it was not timely but marked it “Received” as of that date. Under rule 182(a) of the Rules of Court petitioner had 30 days within which to file his notice of appeal. Petitioner alleges that he failed to file the notice of appeal within the period fixed by the Rules of Court because he was ignorant of his right to take an appeal, he was never advised of this right by his attorney, nor was he so advised by the trial court.

1

[895]

Petitioner’s counsel had intended to file a notice of appeal, although petitioner had not requested him to do so, but mistakenly noted on his calendar the date of January 15, 1974, rather than January 10, 1974, as the last day on which such notice could be filed. These facts were set forth in a verified application for relief from default filed by petitioner’s attorney. This application was denied by the appellate department of the superior court.

A petition grounded on lawyer dereliction “states a classic case for relief under the federal Constitution”

(People

v.

Serrano,

33 Cal.App.3d 331, 337 [109 Cal.Rptr. 30]) notwithstanding the absence of any provision for the granting of such relief either by statute or the Rules of Court.