People v. Burns

SCHOTTKY, J. This is a motion to dismiss the appeal of Jack Odell Burns on the ground that the notice of appeal was premature and therefore this court has no jurisdiction to entertain the appeal.

[330]Defendant was charged with the crime of assault by means of force likely to produce great bodily harm. (Pen. Code, § 245.) He was found guilty of the offense. His counsel made a motion for a new trial which was denied on April 12, 1956. His counsel then made a motion for probation. On April 23, 1956, counsel for defendant filed a notice of appeal dated April 20, 1956, from the “judgment rendered in said action, and from the order denying a new trial in said action, and from all orders denying defendant’s right to assert defenses of res adjudicata and/or former jeopardy, and from each thereof, and from the whole thereof. ’ ’ On May 11, 1956, the trial court denied probation and pronounced judgment against defendant. No notice of appeal was filed after the judgment was pronounced.

Respondent contends that the notice of appeal was not filed within the time prescribed by rule 31 of the Rules on Appeal, and that the notice is premature and therefore a nullity. ■ Rule 31 reads as follows:

“In the cases provided by law, an appeal may be taken by filing a written notice of appeal with the clerk of the superior court 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, and except that the 10-day period for appealing from an order denying a new trial shall be extended until 10 days after the making of an order granting probation or the rendition of judgment, whichever shall occur sooner. If the appeal is by the defendant the notice shall be signed by him or by his attorney, and if the appeal is by the People, the notice shall be signed by the district attorney, his deputy, or other counsel for the People. The notice shall be sufficient if it states in substance that the party appeals from a specified judgment or order or a particular part thereof, and shall be liberally construed in favor of its sufficiency.”

Since the record shows that the judgment had not been rendered, and also that probation had not been granted at the time that the notice of appeal was filed, it clearly appears that the notice of appeal was not filed within the time prescribed by rule 31.