People v. Martiz, Cr. 3051
| Decision Date | 07 February 1955 |
| Docket Number | Cr. 3051 |
| Citation | 279 P.2d 568,130 Cal.App.2d 602 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. Artis MARTIZ, Defendant and Appellant. |
Artis Martiz, in pro. per.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., San Francisco, for respondent.
By information Artis Martiz was charged in two counts with having violated section 11500 of the Health and Safety Code, that is, that on January 4, 1954, and again on January 5, 1954, he had unlawfully sold and furnished narcotics. One Willie Scott was jointly charged as to the count relating to January 4, 1954, and each accused was charged with a prior conviction. Scott pleaded guilty, but Martiz, although admitting the prior, pleaded not guilty to the two main charges. The jury found Martiz guilty on both counts. Judgment and sentence were entered April 8, 1954. On June 18, 1954, Martiz filed a notice of appeal from the judgment. Rule 31 of the Rules on Appeal requires that in criminal cases a written notice of appeal must be filed 'with the clerk of the superior court within 10 days after the rendition of the judgment'. The filing of such notice within the time specified is jurisdictional and not subject to qualification because of hardship. People v. Dawson, 98 Cal.App.2d 517, 220 P.2d 587; People v. Lewis, 219 Cal. 410, 27 P.2d 73.
Appellant recognizes that the notice of appeal was filed too late, but contends that such late filing should be excused for the following reasons: On May 10, 1954, appellant placed in the hands of the mail clerk at San Quentin an affidavit directed to the District Court of Appeal, First Appellate District. It is there averred that 'on Monday, April 12th, 1954, as a prisoner in the Alameda County Jail, he prepared a Notice of Appeal, and deposited it at the designated place prescribed for picking-up mail.' It is then averred that he assumes 'that the Court had neglected, or overlooked, or did not receive the Notice of Appeal' and for those reasons A copy of this affidavit was mailed to the Alameda County Clerk.
The original affidavit was not received by the clerk of this court, but the copy was received by the trial court clerk on May 18 1954. On June 4, 1954, the appellant wrote the clerk of the trial court telling him that he had directed the affidavit to the appellate court by mistake, and requesting advice. This letter was apparently given to Judge Quayle, who had tried and sentenced appellant, because on June 11, 1954, the judge notified appellant by letter that the records of the trial court in his case indicated that no notice of appeal had been received at any time. The judge suggested that the appellant file such a notice, and then leave it up to the appellate court to determine whether such notice was timely. Appellant thereupon filed the notice of appeal on June 18, 1954.
Obviously, the notice of appeal was filed too late, not having been filed until 71 days after the rendition of the judgment. The late filing cannot be condoned on the showing made by appellant. All that the affidavit avers is that within the required 10 days, a notice of appeal was deposited in the place designated for picking up mail. It is not averred that the notice was handed to any official of the county jail or that such official was negligent in its handling. This is not a case of a letter being delayed and then being delivered late. In this case the letter containing the purported notice of appeal was never received. We do not know to whom or how the letter was addressed. In the absence of proof of negligence on the part of the court or jail officials, the risk of non-delivery...
To continue reading
Request your trial
-
People v. Dailey
...day was within time 'within the sphere of the philosophy--both legal and moral--enunciated in the' Slobodion case. People v. Martiz, 1955, 130 Cal.App.2d 602, 279 P.2d 568, is not opposed to our ruling. There the prisoner, whose notice of appeal did not reach the county clerk's office until......
-
Gonsalves, Application of
...P.2d 287), People v. Riser ((1956), 47 Cal.2d 594, 305 P.2d 18)) that Petitioner bore the risk of filing by mail (People v. Martiz ((1955), 130 Cal.App.2d 602, 279 P.2d 568)) and that Petitioner was not lulled into a false feeling of security by The attorney general argues that habeas corpu......
-
Gomes v. Superior Court for Los Angeles County
...of appeal. No reason appears for a different rule with respect to the filing of a petition for a writ. (See also People v. Martiz, 130 Cal.App.2d 602, 604, 279 P.2d 568.) 8 Cases such as Industrial Indem. Co. v. Ind. Acc. Com., 57 Cal.2d 123, 126, 17 Cal.Rptr. 821, 367 P.2d 413; Pesce v. De......
-
People v. Head, Cr. 5893
...* * *.' See, also, People v. Cato, 136 Cal.App.2d 503, 289 P.2d 119; People v. Olgin, 137 Cal.App.2d 286, 290 P.2d 77; People v. Martiz, 130 Cal.App.2d 602, 279 P.2d 568; People v. Arsen, supra, 91 Cal.App.2d 26, 204 P.2d 389, 957; People v. Stinchcomb, supra, 92 Cal.App.2d 741, 208 P.2d 39......