People v. McDowell

PIERCE, J.

This is an appeal from a judgment of conviction of burglary in the second degree.

The indictment of the grand jury accused appellant of wilfully and unlawfully entering a dwelling with the intent to commit theft. The trial court appointed the public defender as appellant’s attorney, but thereafter, upon appellant’s motion (and after adequately warning appellant of the possible consequences thereof), he was permitted to represent himself. Appellant first pleaded not guilty, later changed his plea of guilty. The trial court referred the matter to the probation officer for investigation and report and continued the case for a hearing of said report and for judgment and sentence.

On November 27, 1961, the date to which the matter was so continued, appellant decided his plea of guilty had been a mistake and made a motion “for a stay of judgment of the arrest, pending hearing of appeal, to show cause why the guilty plea should not be vacated.” The motion was denied. Probation was denied and judgment and sentence were pronounced. Appellant was sentenced to prison for the term prescribed by law. He appeals in propria persona.

Before discussing his points on appeal, a matter not urged which has come to our attention should be considered. The clerk’s transcript includes what the index describes as a copy of a “judgment.” The document attached is not a judgment, however, and inquiry discloses that the judgment and sentence orally pronounced were not reduced to writing. The document which actually appears in the record is an “abstract of judgment.” This document recites that the conviction of burglary is “with prior felony convictions as follows” and thereafter appear typewritten symbols mostly

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unintelligible to those uninitiated in the arcana of the law enforcement fraternity. Obfuscation is furthered by illegibility due to a failure in the photo-copy process. The intelligence apparently intended to be imparted by the document is that appellant’s plea of guilty had included an admission of one, or perhaps two, other offenses, wherefore these had been tacked on to the pleaded offense. The reporter’s transcript, however, which includes pronouncement of judgment and sentence, contains no mention of prior convictions. The indictment is similarly silent, and appellant on arraignment for plea was not called upon to admit or deny any prior misdeeds. Obviously, therefore, a record which on its face purports to show judgment and sentence, with prior convictions, is in error, it is a source of confusion to the Adult Authority or others with occasion to examine appellant’s record in the future, and must be corrected.