Del Campo, In re, Cr. 6694
| Court | United States State Supreme Court (California) |
| Citation | 13 Cal.Rptr. 192,361 P.2d 912,55 Cal.2d 816 |
| Decision Date | 18 May 1961 |
| Docket Number | Cr. 6694 |
| Parties | , 361 P.2d 912 In re Oscar DEL CAMPO, on Habeas Corpus. |
Page 192
Page 193
[361 P.2d 913] [55 Cal.2d 817] James A. Clayton, Sacramento (under appointment by the Supreme Court), for petitioner.
Stanley Mosk, Atty. Gen., Doris H. Maier and Edsel W. Haws, Deputy Attys. Gen., for respondent.
McCOMB, Justice.
This is a petition for a writ of habeas corpus.
On July 30, 1958, petitioner was convicted of possessing a narcotic in violation of section 11500 of the Health and Safety Code. If his allegations with respect to the evidence used against him are true and do not omit material facts, his conviction would have been reversed on appeal.
Petitioner alleges that he failed to file a timely notice of appeal because on the day after his conviction David C. Marcus, an attorney employed to represent him, promised to file a notice of appeal but did not do so.
In both civil and criminal cases the time requirements for taking an appeal are mandatory, and appellate courts are without jurisdiction to consider a late appeal. (Estate of Hanley, 23 Cal.2d 120, 122(3), 142 P.2d 423, 149 A.L.R. 1250; People v. Lewis, 219 Cal. 410, 413(1), 27 P.2d 73.)
Likewise, where through inadvertence or mistake of a party or his attorney a notice of appeal is not filed within the time limited by law, neither the trial court nor the appellate court can afford relief thereafter by permitting the filing of a tardy notice. (People v. Lewis, supra, 219 Cal. at page 414(3), 27 P.2d at page 74.)
In the present case petitioner contends that his counsel did not merely make a mistake, but intentionally refrained from filing a notice of appeal after having promised that he would file one, and without notifying petitioner of his decision so that petitioner might institute an appeal himself, as a result of which petitioner was unlawfully deprived of his right of appeal.
Since the People denied petitioner's claim that his counsel had told him he would file a notice of appeal but intentionally [55 Cal.2d 818] refrained from filing it, a referee (Hon. Edward T. Bishop) was appointed to determine this question: 'Did David C. Marcus promise petitioner Oscar Del Campo to file a timely notice of appeal after petitioner's conviction on July 30, 1958?'
After a hearing, at which evidence was received, the referee found that the answer was 'no' and that 'at no time did David C. Marcus promise, agree...
To continue reading
Request your trial
-
State v. Legg, No. 12567
...408] question must be regarded as mandatory and jurisdictional: Skeens v. Commonwealth, 192 Va. 200, 64 S.E.2d 764; In re Del Campo, 55 Cal.2d 816, 13 Cal.Rptr. 192, 361 P.2d 912; State ex rel. Reid v. District Court, 126 Mont. 489, 255 P.2d 693; Houston v. State (Okl.Cr.), 409 P.2d 377; Hi......
-
Branch, In re, Cr. 11483
...472, 372 P.2d 304) they are entitled to great weight (In re Riddle, supra, at p. 853, 22 Cal.Rptr. 472, 372 P.2d 304; In re Del Campo, 55 Cal.2d 816, 13 Cal.Rptr. 192, 361 P.2d 912) because of the referee's 'opportunity to observe the demeanor of the witnesses and weigh their statements in ......
-
Benoit, In re, Cr. 16642 and 16627
...two days after judgment. The appellate courts remained without jurisdiction to consider late appeals until 1961. (In re Del Campo (1961), 55 Cal.2d 816, 13 Cal.Rptr. 192, 361 P.2d 912.) In 1961--so the argument continues--rule 31(a) of the California Rules of Court, which specified that a n......
-
Anderson, In re, Cr. 14202
...of a notice of appeal is jurisdictional and that no relief is available from the failure to file a timely notice. (E.g., In re Del Campo, 55 Cal.2d 816, 817, 13 Cal.Rptr. 192, 361 P.2d The majority ignore all of the circumstances which support the reasonableness of Page 836 [491 P.2d 420] p......
-
Branch, In re
...372 P.2d 304) they are entitled to great weight (In re Riddle, supra, at p. 853, 22 Cal.Rptr. 472, 372 P.2d 304; In re Del Campo, 55 Cal.2d 816, 13 Cal.Rptr. 192, 361 P.2d 912) because of the referee's 'opportunity to observe the demeanor of the witnesses and weigh their statements in conne......
-
Benoit, In re, Cr. 16642 and 16627
...days after judgment. The appellate courts remained without jurisdiction to consider late appeals until 1961. (In re Del Campo (1961), 55 Cal.2d 816, 13 Cal.Rptr. 192, 361 P.2d 912.) In 1961--so the argument continues--rule 31(a) of the California Rules of Court, which specified that a notic......
-
State v. Legg, 12567
...in question must be regarded as mandatory and jurisdictional: Skeens v. Commonwealth, 192 Va. 200, 64 S.E.2d 764; In re Del Campo, 55 Cal.2d 816, 13 Cal.Rptr. 192, 361 P.2d 912; State ex rel. Reid v. District Court, 126 Mont. 489, 255 P.2d 693; Houston v. State (Okl.Cr.), 409 P.2d 377; Hick......
-
Anderson, In re, Cr. 14202
...of appeal is jurisdictional and that no relief is available from the failure to file a timely notice. (E.g., In re Del Campo, 55 Cal.2d 816, 817, 13 Cal.Rptr. 192, 361 P.2d 912.) The majority ignore all of the circumstances which support the reasonableness of petitioner's delay merely becau......