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District Court of Appeal, Second District, Division 2, California.


Cr. 4422.

Decided: February 14, 1950

Walter L. Gordon, Jr., Los Angeles, for Appellant. Fred N. Howser, Attorney General; Dan Kaufmann, Deputy Attorney General, for Respondent.

From an order denying defendant's motion for a new trial after she had been convicted by the court, sitting without a jury, of violating section 496 of the Penal Code, she appeals.

Facts: On March 11, 1949, defendant was found guilty of a violation of section 496 of the Penal Code. On April 26, 1949, the trial court granted defendant's application for probation and without pronouncing judgment or sentence suspended further proceedings in the case. On August 2, 1949, defendant made a motion for a new trial which was denied. It is from this order that the present appeal is taken. Respondent moves the dismiss the appeal upon the ground that it was not taken within the time provided by Rule 31 of the Rules on Appeal. (22 Cal.2d 22.)

This motion must be granted for the reason that Rule 31 of the Rules on Appeal provides in part as follows: ‘* * * Notice of appeal from an order denying a new trial shall be filed within 10 days after the making of an order granting probation or the rendition of judgment, whichever shall occur sooner. * * *’ In the instant case a judgment was not rendered. Probation was granted on April 26, 1949, and the notice of appeal was not filed until August 2, 1949, more than 3 months after the order granting probation was made. Hence the notice of appeal was not filed within the time prescribed by law, and this court is without jurisdiction to consider the appeal. (People v. Behrmann, 34 Cal.2d 459, 211 P.2d 575.)

The appeal is dismissed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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