Wilborn v. Superior Court

California Court of Appeal Dec 7, 1959 No. Civ. 9837Published

Before: Schottky

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Holding. The court held that the trial court erred in denying the defendant's motion to dismiss for lack of a speedy trial, as the prosecution failed to show good cause for the delay beyond the 60-day statutory period following the finality of the Supreme Court's decision.

Issues

Whether the failure to bring a defendant to trial within 60 days of the finality of a Supreme Court decision in an original proceeding violates the right to a speedy trial under Penal Code section 1382.
Whether a mistaken belief by the trial court and district attorney regarding the necessity of a remittitur constitutes 'good cause' for delaying a trial beyond the statutory period.

Disposition. remanded with instructions to dismiss

Quotations verified verbatim against the opinion

“When a defendant has not consented to a continuance of a cause against him, and the prosecution fails to show good cause therefor, upon motion of the accused person it is mandatory upon the court to dismiss the action”

“While this may explain why the case was not set for trial within the 60-day period, it cannot serve as a sufficient excuse for depriving petitioner of her constitutional and statutory right to a speedy trial.”

SCHOTTKY, J.

This is a petition for a writ of mandate to compel the respondent court to dismiss an information charging petitioner, June Wilborn, with a violation of section 278 of the Penal Code (child stealing). The ground on which

[899]

the writ is sought is that petitioner has been denied her right to a speedy trial. (Cal. Const., art. I, § 13; Pen. Code, § 1382.)

The following is a brief history of this case:

1. On April 30, 1958, an information was filed charging petitioner with child stealing.

2. On May 5,1958, a motion to set aside the information was denied by the trial court.

3. On May 12, 1958, a petition for a writ of prohibition was filed in this court.

4. On May 22, 1958, this court issued an alternative writ of prohibition.

5. On September 10, 1958, this court filed its opinion in the matter. The opinion was to the effect that the writ issue.

6. A petition for a hearing was granted by the Supreme Court.

7. On April 3, 1959, the Supreme Court filed its opinion denying the writ of prohibition. (No formal remittitur has ever been issued.)

8. On August 6,1959, the clerk of the Supreme Court wrote to petitioner’s attorney stating that the opinion of the Supreme Court was filed on April 3, 1959, and that no remittitur issues in an original proceeding.

9. On August 19, 1959, a certified copy of the opinion of the Supreme Court was filed in the trial court and the case was restored to the trial calendar.

10. On August 28, 1959, petitioner made a motion to dismiss the information on the ground that she had not been brought to trial within 60 days of the time the decision of the Supreme Court became final. This motion was denied and the cause set for trial on September 29, 1959. On this date, August 28, 1959, the letter from the clerk of the Supreme Court to petitioner’s attorney was filed with the trial court.

Wilborn v. Superior Court

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SCHOTTKY, J.

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