Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F07909495, Jeff Bird, Commissioner.
Benton Mitchell Akers, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Gomes, J. and Hill, J.
STATEMENT OF FACTS
On October 21, 2008, appellant Benton Mitchell Akers, represented by appointed counsel, admitted violating Penal Code section 245, subdivision (a)(1), and admitted the attendant enhancement. The minute order from this hearing shows he agreed to waive 469 days of time credits (313 + 156) for all purposes and that he waived time for sentencing.
On that same date, imposition of judgment and sentence was suspended by the trial court for three years and appellant was placed on formal probation for a period of three years on the following terms and conditions:
(1) that he serve 365 days in the Fresno County Jail;
(2) that he not receive any credits for the time already served; and
(3) that he pay various fines and fees.
Appellant filed his notice of appeal and request for a certificate of probable cause on January 5, 2009. In the request for a certificate of probable cause, he claimed the time credit waiver was added to the plea form after he signed it. But he admitted his defense counsel told him he had to initial it and agree to the time waiver. Appellant claimed he was coerced and misrepresented.
His request for a certificate of probable cause was denied on January 5, 2009.
This court thereafter questioned the timeliness of his appeal. Accordingly, appellant was given an opportunity to explain his position on the issue. The time to do so passed without appellant filing a responsive letter or pleading.
DISCUSSION
Judgment is rendered at the time it is orally pronounced. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3.) A notice of appeal must be filed within 60 days of the date of the rendition of the judgment or the making of the order being appealed. (Cal. Rules of Court, rule 8.308(a).) This requirement is “‘essential to appellate jurisdiction.’” (In re Chavez (2003) 30 Cal.4th 643, 650, quoting 6 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Appeal, § 3220, p. 3979.) “‘An untimely notice of appeal is “wholly ineffectual: The delay cannot be waived, it cannot be cured by nunc pro tunc order, and [with certain exceptions,] the appellate court has no power to give relief, but must dismiss the appeal on motion of a party or on its own motion.”’” (In re Chavez, supra, at p. 650.)
In this case, on October 21, 2008, the trial court granted appellant probation and suspended the proceedings before the pronouncement of judgment or imposition of sentence. That order is considered a final judgment for purposes of appeal even if it would not be considered final for other purposes. (Pen. Code, § 1237, subd. (a) ; People v. Cook (1975) 13 Cal.3d 663, 666, fn. 1, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.)
This subdivision provides that an appeal may be taken by the defendant “[f]rom a final judgment of conviction except as provided in Section 1237.1 and Section 1237.5. A sentence, an order granting probation, or the commitment of a defendant for insanity, the indeterminate commitment of a defendant as a mentally disordered sex offender, or the commitment of a defendant for controlled substance addiction shall be deemed to be a final judgment within the meaning of this section. Upon appeal from a final judgment the court may review any order denying a motion for a new trial.”
Since appellant has not shown that any exceptions to the general jurisdictional rule apply in his case, he only had 60 days from October 21, 2008, in which to file his notice of appeal. His untimely filing of the notice of appeal on January 5, 2009, means this court lacks jurisdiction to consider his appeal and the matter must be dismissed. (In re Chavez, supra, 30 Cal.4th at p. 650.)
DISPOSITION
The appeal is ordered dismissed since it was untimely filed and appellant has failed to show that any exception to the 60-day jurisdictional rule apply to his case.