In Re Dupper

Opinion

BROWN (H. C), J.

The People appeal from the granting of respondent’s petition for writ of habeas corpus. The issue is whether probation had been extended beyond the three-year limitation of Penal Code section 1203a.

Penal Code section 1203a provides that in misdemeanor cases where the maximum sentence provided by law does not exceed three years, the court “shall have power to suspend the imposing or the execution of the

[121]

sentence, and to make and enforce the terms of probation for a period

not to exceed three years.”

(Italics added.)

The writ of habeas corpus here under consideration was granted by the trial court on the ground that the municipal court had extended probation beyond the three years referred to in section 1203a. It is concluded that the trial court was correct.

The record discloses that respondent pleaded guilty in the municipal court to violation of Penal Code section 270 (failure to support a child). He was sentenced on January 4, 1972, to one year in the county jail with one day suspended.

The sentence was ordered modified on January 28, 1972, and on January 31, 1972, respondent was admitted to probation. Probation was revoked on June 14, 1973, reinstated on August 14, 1973, and revoked on June 18, 1974 (respondent not appearing, bench warrant issued). On August 13, 1974, respondent appeared and was sentenced to one year in the county jail, one day suspended, with credit for time served.

On August 30, 1974, a petition for writ of habeas corpus was filed in the superior court; respondent was released on his own recognizance. On September 17, 1974, the writ was denied and the matter remanded to the municipal court, respondent to remain free on his own recognizance pending review.

On September 24, 1974, respondent appeared with counsel, who indicated to the court that since being released respondent had obtained employment and had made payments to the welfare department. This new information was referred to a probation officer for review.