People v. Bice

THE PEOPLE, Respondent, v. HERBERT BICE, Appellant.

COUNSEL

H. M. Tashjian for Appellant.

Earl Warren, Attorney-General, and Walter L. Bowers, Deputy Attorney-General, for Respondent.

OPINION

Griffin, J.

On May 6, 1940, defendant and appellant filed a notice of appeal from a judgment of conviction of the offense of grand theft with prior felony convictions. The certificate of the county clerk of Tulare County, dated May 18, 1940, discloses that no statement of grounds of appeal or application for transcript were filed as required by section 7 of rule II of the Rules of the Judicial Council of the State of California promulgated for the Supreme Court and District Courts of Appeal. Respondent on August 13, 1940, moved to dismiss the appeal upon the ground that said statement and application have not been filed in conformity with the provisions of the said rule which provides that upon an appeal by a defendant from a judgment of conviction the appellant must, within five days after giving notice of appeal, file with the clerk of the court and present an application to the trial court stating in general terms the grounds of the appeal and the points upon which appellant relies and designate what portions of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon. [1 ] If such application is not filed within said time the appeal shall be dismissed. The appellate court is without jurisdiction to consider the appeal where such an application is not filed. (People v. Rutledge, 114 Cal. App. 728 [300 P. 828]; People v. Lewis, 219 Cal. 410 [27 PaCal.2d 73]; People v. Gilbert, 28 Cal. App. 2d 121 [82 PaCal.2d 25].)

No appearance has been made in this court by appellant to resist the granting of the motion. It is therefore ordered that the motion of respondent to dismiss the appeal be granted and the appeal is dismissed.

Barnard, P. J., concurred.