People v. Moyle

WOOD (Fred B.), J. October 6, 1955, the superior court denied defendant’s petition (dated September 21, 1955) for relief from default in the presentation of the record upon his appeal from a judgment and from an order denying his motion for new trial. The judgment was rendered and the order was made on or about May 27, 1939. Defendant gave timely oral notice of appeal therefrom* but he did not then, or at any time, “file with the clerk and present an application to the trial court, stating in general terms the grounds [351]of the appeal and the points upon which the appellant relies1 ’ required by section 7 of rule II of the Eules for Supreme Court and District Courts of Appeal then in effect concerning appeals in criminal eases.†

When making the order which is the subject of this appeal, the judge then presiding said he found that under date of January 22, 1951, the District Court of Appeal dismissed the appeal because of the appellant’s failure to file his opening brief and that, therefore, it did not appear possible to give any relief. That was an incorrect premise. Our records show that the dismissal of January 22, 1951, was of a later appeal, an appeal from a superior court order made September 15, 1950, denying a petition of September 1, 1950, to modify the judgment by accelerating the starting date of the sentence imposed.

Defendant, in support of the present appeal, claims that the trial judge, in assigning a prior dismissal of the main appeal as the reason for denying the requested relief, in effect failed to consider the request because of a mistaken belief that he lacked jurisdiction to do so.

This presents the question whether, for a reason other than that assigned, the trial court may have lacked jurisdiction to grant the request.

It seems abundantly clear that defendant’s failure to file the application required by section 7 of rule II deprived the court of any and all jurisdiction except to dismiss the appeal, in view of the mandate of the rule that if the application be not filed in time “the appeal shall be dismissed.” [352]It was so held in People v. Davis, 103 Cal.App. 318 [284 P. 516], and in People v. Riga, 104 Cal.App. 477 [285 P. 1069]. This rule was substantially the same as an antecedent statute (Pen. Code, § 1247) which was similarly interpreted. (People v. Pietri, 90 Cal.App. 69 [265 P. 508] ; People v. Pierce, 89 Cal.App. 290 [264 P. 519], hearing by Supreme Court denied; People v. McClellan, 88 Cal.App. 415 [263 P. 841], hearing by Supreme Court denied; People v. Shaw, 81 Cal.App. 312 [253 P. 747], reviewing five similar cases which had been decided during the period 1911-1926. See also confirmatory statement in People v. Malone, 213 Cal. 406, 407-408 [2 P.2d 332].)