Smith v. Ostly

SPENCE, J.

Petitioner seeks a writ of mandate to compel the respondent county clerk to prepare and file a transcript on petitioner’s appeal from his judgment of conviction.

The material facts are undisputed. Petitioner and several others were convicted of violations of section 11500 of the Health and Safety Code. Petitioner’s judgment of conviction was entered on December 19, 1958. On December 24, 1958, a document purporting to be petitioner’s “Notice of Appeal” was received by respondent through the mail and was stamped as “Piled” as of that date. On December 29, 1958, a substantially identical document was received by respondent through the mail and was stamped as “Piled” as of that date. Respondent thereafter apparently deemed said notices to be insufficient and on January 9, 1959, caused the word “Cancelled” to be written over the filing stamps. On May 1, 1959, petitioner wrote to respondent concerning his appeal and was advised by respondent, under date of May 7, 1959, that no action was being taken toward the preparation of a transcript as his two “alleged Notices of Appeal” did not comply with rule 31 of the Rules on Appeal. Thereafter, on May 13, 1959, petitioner sent a second letter to respondent in which petitioner stated that he was filing yet another notice of appeal. On May 15, 1959, respondent acknowledged receipt of the letter but advised petitioner that no action would be taken on the last-mentioned notice “for the reason that a notice of appeal must be filed within ten days after the imposition of

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judgment. ...” Petitioner, without the aid of counsel, then instituted this proceeding for a writ of mandate. Since the issuance of the order to show cause herein, counsel has appeared to represent petitioner.

Upon oral argument, the question arose as to whether under the pleadings there was any material issue of fact to be determined by this proceeding. The parties agreed that there was not. It was conceded that petitioner sent, and that respondent received at the times indicated, the two “Notices of Appeal” marked “Piled” respectively on December 24th and December 29th. The sole question presented relates to their sufficiency; and in view of the conclusion we have reached, we need consider only the notice filed on December 24, 1958.