In Re Davis

California Court of Appeal May 13, 1957 No. Crim. 5841Published

Before: Doran

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Holding. The court held that the trial court's order staying "proceedings" pending appeal suspended the entire probationary period, meaning the five-year term did not expire during the pendency of the appeal. Consequently, the court retained jurisdiction to revoke and modify probation after the appeal concluded.

Issues

Whether the probationary period continued to run during the pendency of an appeal where the trial court ordered a stay of "proceedings."

Disposition. Writ discharged; petitioner remanded.

Quotations verified verbatim against the opinion

“The term “proceedings” would obviously include the probation order.”

“Section 1203.3 gives the court full power to revoke, modify or terminate probation.”

“The writ is discharged and the petitioner remanded to the custody of the sheriff.”

DORAN, J.

The petitioner was convicted of grand theft, and on February 28, 1951, the superior court suspended pronouncement of judgment and admitted petitioner to probation for a period of five years. Conditions imposed on probation include a provision that petitioner spend “the first two years of the probationary period” in the county jail, and make restitution as proposed by the probation officer, the total amount of which was in excess of $16,000. Petitioner’s motion for a new trial was denied, an appeal was taken, resulting in an affirmance.

(People

Davis,

112 Cal.App.2d 286 [246 P.2d 160], July 18, 1952.)

A certified copy of the minutes of the court for February 28, 1951, after stating the terms of probation, states: “. . . Notice of Appeal . . . filed. Stay of execution of jail term is granted. Bond . . . file.” However, as stated in respondent’s Points and Authorities in opposition to the granting of a Writ of Habeas Corpus, a written order, bearing the heading of petitioner’s attorney, and signed by Judge John J. Ford, reads in part as follows: “. . . it is ordered that the judgment

and proceedings

in the above entitled case be stayed to and including the conclusion of the appeal.” (Italics added.)

Following the affirmance on appeal, the Minutes of August 21, 1952, state, “Defendant surrendered on remittitur. The Order of February 28, 1951 granting probation is ordered into full force and effect. ...” Thereafter the petitioner served the two-year jail sentence which was a condition of the probation.

On May 21, 1956, on a hearing of the defendant’s motion to terminate probation, Judge Stanley Mosk granted the motion on the theory that “the order of March 5 stayed in only as to the jail portion of the order for probation.” Actually, there was no such order although, as hereinbefore indicated, the clerk’s minute order did contain the words, “Stay of execution of jail sentence is granted.” Judge Ford’s signed order, previously quoted, specifically stayed “proceedings in the above entitled case” pending conclusion of the appeal.

Thereafter, on July 27, 1956, on the stipulation of the defendant and defendant’s attorney, Judge Mosk vacated

[792]

In Re Davis

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DORAN, J.

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