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District Court of Appeal, Fourth District, California.


Cr. 532

Decided: August 14, 1940

H.M. Tashjian, of Visalia, for appellant. Earl Warren, Atty. Gen., and Walter L. Bowers, Deputy Atty. Gen., for respondent.

On May 8, 1940, defendant and appellant filed a notice of appeal from a judgment of conviction of the offenses of burglary and petit theft, with prior felony convictions. From the record before us it appears that the statement of the grounds of appeal and notice and application for a transcript of the phonographic reporter's notes required to be filed under the provisions of 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, have not been filed. Respondent on August 13, 1940, moved to dismiss the appeal upon the ground that said application and statement were not 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. The rule further provides that if such application is not filed within said time the appeal shall be dismissed.

Inasmuch as the filing of an application for the preparation of a transcript of the phonographic reporter's notes is made a necessary prerequisite to the prosecution of an appeal from the judgment of conviction, the appellate court is without jurisdiction to consider the appeal where such an application is not filed and the appeal will be dismissed. People v. Rutledge, 114 Cal.App. 728, 300 P. 828; People v. Lau, 19 Cal.App.2d 243, 64 P.2d 1142; People v. Lewis, 219 Cal. 410, 27 P.2d 73; People v. Gilbert, 28 Cal.App.2d 121, 82 P.2d 25.

The motion to dismiss the appeal is granted and the appeal is dismissed.

GRIFFIN, Justice.

I concur: BARNARD, P.J.