People v. Young

GIBSON, C. J. The People seek dismissal of this appeal from an order denying a new trial on the ground that the notice of appeal was too late because it was filed more than ten days after the granting of probation, and on the further ground that the motion for a new trial was not timely.

Defendant was granted probation on April 26, 1949, after having been found guilty of receiving stolen property in violation of section 496 of the Penal Code. On July 1 she filed a notice of motion for a new trial. The motion was subsequently ordered off calendar but was renewed on July 29 and was denied August 2. On the same day that the motion was denied, defendant filed her notice of appeal.

Rule 31 of the Rules on Appeal, relating to criminal cases, provides that an appeal may be taken by filing a notice of appeal “within 10 days after the rendition of the judgment or the making of the order, except that an appeal from an order denying a new trial shall not be taken until after the granting of probation or the rendition of judgment. Notice of appeal from an order denying a new trial shall be filed within 10 days after the making of an order granting probation or the rendition of judgment, whichever shall occur sooner.” Notwithstanding the fact that the notice of appeal herein was filed at the earliest possible time, i. e., on the same day that the new trial was denied, the People contend that the notice was too late because it was not filed “within 10 days after the making of an order granting probation.” We cannot agree with this construction of the rule.

The normal time for filing notice of appeal is 10 days after the making of the order sought to be reviewed, but in the case of orders denying a new trial the time is extended until 10 days after the granting of probation or the rendition of judgment, whichever shall occur sooner. This intent on the part [821]of the framers of the rule is clearly shown by the draftsman’s article which states the purpose of the rule. (See Within, New Rules on Appeal; 17 So.Cal.L.Rev. 79, 271.) In criminal procedure, a motion for new trial is made before judgment, and frequently it is made in connection with an application for probation. If a defendant were compelled to give notice of appeal within 10 days after denial of his motion, he would often be forced to give it before determination of his application for probation, with the result that an unnecessary record would be prepared in eases where probation was granted and defendant elected to abandon his appeal. To avoid this wasteful action, rule 31 provides for an extension of the time to appeal from the denial of a new trial.