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Name: Drake v. Superior Court
Case #: H033614
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 07/27/2009
Summary

The notice of appeal and the application for a certificate of probable cause must be filed within 60 days of the order being appealed or the judgment but they need not be filed simultaneously. The superior court denied petitioner’s motion to withdraw plea on September 4, 2008, and sentenced him to three years formal probation. On September 11, 2008, petitioner filed a notice of appeal but stated he was not seeking a certificate of probable cause (Pen. Code, sec. 1237.5). He then filed an application for certificate of probable cause on September 19, which the trial court denied as untimely. The appellate court rejected an interpretation of the California Rules of Court, rule 8.304 (b)(1) that it requires the notice of appeal and application for certificate of probable cause be filed simultaneously. Rule 8.304 (b)(1) does not clearly specify when the notice of appeal and application for certificate of probable cause are to be filed. Because appeal interests are significant, due process principles give appellant the benefit of doubt, such that the two items need only be filed within the sixty days. The writ of mandate issued, with the trial court directed to consider the application for certificate of probable cause on the merits.