Strand v. Schmittroth

• Citation: 233 F.2d 598
• Decision Date: 03 May 1956
• Docket Number: No. 14733.,14733.
• Parties: Bert STRAND, Sheriff of San Diego County, State of California, Appellant, v. William SCHMITTROTH, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

233 F.2d 598 (1956)

Bert STRAND, Sheriff of San Diego County, State of California, Appellant, v. William SCHMITTROTH, Appellee.

No. 14733.

United States Court of Appeals Ninth Circuit.

May 3, 1956.

James Don Keller, Dist. Atty., Claude B. Brown, Deputy Dist. Atty., County of San Diego, San Diego, Cal., Edmund G. Brown, Atty. Gen., Clarence A. Linn, Chief Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., State of California, for appellant.

Oscar F. Irwin, San Diego, Cal., for appellee.

Laughlin E. Waters, U. S. Atty., Louis Lee Abbott, James T. Barnes, Asst. U. S. Attys., Los Angeles, Cal., amici curiae.

Before HEALY, BONE and CHAMBERS, Circuit Judges.

BONE, Circuit Judge.

I.

On September 15, 1953, a complaint captioned "The People of the State of California, plaintiff, vs. William Roth, defendant," was lodged in the Municipal Court, San Diego Judicial District, County of San Diego, State of California. It charged the said Roth with the commission of a felony, to wit, uttering and passing a check bearing a fictitious name with intent to cheat and defraud certain California persons named in the complaint. Complainant prayed that a warrant issue for Roth's arrest.

Sometime in January, 1955, Roth (appellee herein) was apprehended and delivered to the custody of the San Diego Police Department on a warrant issued by the San Diego authorities. A preliminary hearing was set for and held on February 10, 1955 in the Municipal Court of San Diego Judicial District. The preliminary examination was held in the Municipal Court which determined that there was reasonable cause to believe that Roth (whose true name appears to be Schmittroth) had committed an offense against the State of California, and ordered him held in custody of appellant sheriff pending further proceedings. Appellee raised the question of State court jurisdiction over him (for reasons noted below) but his objection was overruled by the Municipal Court.

On February 8, 1955, appellee Schmittroth filed a petition for a writ of habeas corpus in the United States District Court, San Diego, this to secure freedom from detention by appellant.

The records before us indicate that in January, 1955, appellee had entered a plea of guilty in a criminal case then pending in the above named United States District Court the charge against him being the offense of transporting a false security in interstate commerce, a federal crime he had committed in Florida. Upon his plea, and on January 17, 1955, Judge Carter, the District Judge then sitting, sentenced Schmittroth to ten years confinement. Execution of this sentence appears to have been suspended and appellee was placed on five years probation by Judge Carter. 18 U.S.C.A. § 3651.

On February 9, 1955, the District Judge of the United States Court ordered appellant to show cause on February 17, 1955 why a writ of habeas corpus should not issue on appellee's petition and appellee be discharged from confinement by appellant. On February 11, 1955, appellant filed an answer to Schmittroth's petition.

On February 17, 1955, a hearing was held in the lower court on appellee's petition for the writ and appellant's answer thereto. On that day the lower court issued and filed an "order for discharge" which directed that Schmittroth be "forthwith discharged from further imprisonment and detention by reason of the said commitment issued by the Municipal Court, San Diego Judicial District, County of San Diego, State of California." The lower court did not make findings of fact and conclusions of law to accompany this order. Under this order appellee Schmittroth was discharged from imprisonment and detention by appellant.

On February 21, 1955, appellant filed a petition for a rehearing. The lower court denied this petition by order dated February 24, 1955.

The record of the hearing on February 17, 1955 (the only hearing held) is illuminating in that it serves to indicate the attitude of the court and both parties as to the finality which might possibly attach to the court's order of discharge dated and filed on that day. Colloquy between Judge Hall and counsel in open court shows that the parties were advised by the Judge that appellee was entitled to the writ he sought; that it was the opinion of the court that counsel for appellee "had better have findings of fact here in this matter which can follow from this order," i. e., the order of discharge entered that day. On this note the proceedings ended.

Contrary to what appellee suggests in his brief we think that this record sustains the view that the discussion in open court on February 17, 1955 makes abundantly plain that counsel for both parties (neither of whom made any objection to the court's suggestion) did not regard the making and entry of findings of fact and conclusions of law in the case at a later date as a meaningless gesture by the court. Respecting this procedure we quote in the margin the colloquy above referred to.¹

It was pursuant to this unopposed suggestion that Judge Hall did later make and enter a formal judgment supported by findings.² This procedure was in conformity with his earlier suggestion concerning the desirability of entering findings in the case at some subsequent date. Appellant contends that, on the record, "the Court did not intend its `minute order' of February 17, 1955, to be final in any sense." We agree with this view of the record.

From the whole record we think it clearly indicates that the trial court intended to retain jurisdiction of the proceedings for further judicial consideration after entering the discharge order of February 17, 1955. In our view, this sort of proceeding not only served the ends of justice but was well within the orbit of judicial discretion. The end result was the preparation and filing, on March 11, 1955, of formal findings of fact, conclusions of law, and a judgment. The judgment was in harmony with the earlier "order of discharge" dated February 17, 1955.

On April 1, 1955 and upon application of the Attorney General of the State of California (appearing as counsel for appellant) the lower court issued a "Certificate of Probable Cause" in which it briefly recited, inter alia, that probable cause existed for an appeal "from the orders and judgment of this Court granting the Writ of Habeas Corpus and ordering petitioner released from custody in the above entitled matter." (Emphasis supplied.)

On March 16, 1955, appellant gave formal "Notice of Appeal" the text of which appears in the margin.³ The text of this notice shows that appellant was endeavoring to appeal from both of the orders and/or judgments here noted, and involved on this appeal.

Appellee's Position

On this appeal appellee vigorously contends that the February 17, 1955 "order for discharge" was a final and appealable order in the habeas corpus proceeding which fully terminated the controversy; that findings and conclusions "are not required in habeas corpus proceedings" (under Civil Rule 52, 28 U.S.C.A.) since "they add nothing to the this order." His claim is that findings in connection with this order were not necessary to give it full force and validity; that since it was the final and appealable order in the case this Court has no jurisdiction to entertain the instant appeal since it was not timely "perfected" and is therefore fatally defective as against the aforesaid February 17, 1955 "final" order, this for reasons we note below.

On this jurisdictional issue appellee's specific argument is that appellant did not secure the (above noted) certificate of probable cause required by 28 U.S.C.A. § 2253 within thirty days from and after entry of the February 17, 1955 order and judgment of discharge hence the attempt to appeal from that order necessarily fails. This certificate was issued by Judge Hall approximately 41 days after entry of the February 17, 1955 "order for discharge," and approximately 35 days after the order denying a rehearing on that order. Under appellee's theory, the appeal from the judgment of March 11, 1955 would have no legal significance and should be disregarded. In short, appellee's position is that there is no appeal properly before us in this case and the purported appeal should be dismissed for lack of jurisdiction.

Where detention arises (as here) out of process issued by a state court, it has been held by several Circuits that application for or obtaining the certificate of probable cause within 30 days (the time allowed by Rule 73(a) of the Federal Rules of Civil Procedure for taking an appeal) from and after an appealable order is entered, is prerequisite to our appellate jurisdiction.⁴

In the light of these various Circuit holdings on this jurisdictional question we face the necessity of determining which one of the two orders and/or judgments here considered constitutes the final and appealable order entered in this case. Is it the order of discharge dated February 17, 1955 (or, in the alternative, the denial of the above noted petition for rehearing on February 24, 1955) or is it the second order and judgment filed and entered March 11, 1955? If the order of February 17, 1955 was a final and appealable order, (or in the alternative, if the denial of a rehearing can be said to be the "final order" in the case) then the appeal here attempted to be taken from either of these two earlier orders and/or judgments was not "perfected" within the allowable thirty day period from and after date of their entry because more than 30 days had elapsed between the entry of both orders and the filing and entry of the certificate of probable cause.

However, the certificate of probable cause for appeal from the later judgment of March 11, 1955 was obtained within the necessary thirty days from and after entry of that judgment. If it must be regarded as the final and appealable order in this case, it is clear from the record that the notice of appeal given in this case (which also includes appeal from...