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District Court of Appeal, Second District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. David A. HARCHUCK, Defendant and Appellant.

Ext. 876.

Decided: June 07, 1961

David A. Harchuck, appellant, in pro. per. No appearance for respondent.

David A. Harchuck has applied to this court for a ruling and order that he gave timely notice of appeal from a judgment in Department 106 of the Superior Court of Los Angeles County of conviction of a violation of Section 11500, Health and Safety Code. His application is made pursuant to Rule 31(a) Rules on Appeal and although unverified will be deemed a sufficient representation that he prepared and signed a notice of appeal and delivered it to a member of the staff of the county jail for mailing in time for it to be presented for filing within 10 days after entry of judgment and that when it was received by the county clerk it was refused filing for the reason that it was not timely. Attached to the application is a notice to petitioner from the county clerk which states that judgment was imposed January 30, 1961 and that the notice of appeal was received by the clerk February 15, 1961 but not filed, and further that Harchuck should petition this court for relief by verified petition. Also attached is a statement of a deputy jailer which shows that he received a notice of appeal and request for stay of execution from petitioner February 10, 1961 which was addressed to the court reporter of Department 110 and that the same was mailed on the same day. No reason is stated in the petition for the failure to forward a notice of appeal for filing within 10 days after judgment.

It appearing that the notice of appeal was not delivered to an officer of the jail staff until the eleventh day after imposition of judgment, and in the absence of a showing that the delay was excusable the petition is denied. In re Del Campo, 55 Cal.2d816, 13 Cal.Rptr. 192.