People v. Olgin

WHITE, P. J. Respondent moves to dismiss the appeal herein upon the ground that the notice of appeal was filed too late. Appellant counters with the claim that the particular circumstances shown by the record in this case are such as to preclude dismissal of his appeal.

The following chronology is admittedly correct:

July 13, 1954—An information was filed in the Superior Court of Los Angeles County wherein appellant was charged with a violation of section 11500 of the Health and Safety Code (possession of heroin). Said information also charged five prior felony convictions for which appellant served terms of imprisonment in a state prison. All prior convictions were admitted.

[287]October 25, 1954—Appellant was adjudged guilty.

November 12,1954—Judgment was pronounced committing appellant to state prison. No appeal was taken from such, judgment.

May 17, 1955—Appellant filed in the superior court a petition for writ of error coram, nobis and for an order to show cause why the writ should not be granted.

May 18, 1955—The petition was denied.

June 14, 1955—Notice of appeal was filed with the Clerk of the Superior Court from “the judgments and the. whole thereof. ’ ’

Rule 31 of the Rules on Appeal provides that “an appeal (in a criminal case) may be taken by filing a written notice of appeal with the Clerk of the Superior Court within ten days after the rendition of the Judgment.” In the instant ease the clerk received appellant’s notice of appeal on June 14,1955—“twenty-seven days” rather than “ten days” after rendition of the judgment denying his petition for writ of error coram nobis.

In opposition to respondent’s motion to dismiss the appeal, appellant, appearing in propria persona, filed an answer reciting that when his original petition was filed in the court below, he attached thereto a notice of appeal requesting the clerk of the superior court to file the same in the event his petition for writ of error coram nobis was denied. In this regard the record reflects that when, on May 18th, the appellant’s aforesaid petition was called for hearing (he not being present) the court made the following order:

“The petition is denied, and it is directed that the notice of appeal attached to the petition be not filed, it having been sent to the Court prematurely. In other words, notice of appeal was sent before the Court had an opportunity to rule on the situation.”