DePaul

Convicted of one count of burglary (Pen. Code, § 459) by

guilty plea, defendant Victor L. DePaul was granted probation for a period of two years. More than two years later probation was revoked and defendant was sentenced to state prison. He appeals from the judgment. At issue is the meaning of a statutory provision that revocation, “summary or otherwise, shall serve to toll the running of the probationary period.” (Pen. Code, § 1203.2, subd. (a).)

Probation was granted to defendant on December 28, 1978. On August 14, 1980, the court summarily revoked probation but it was reinstated on November 13, 1980, on the same terms and conditions.

On January 16, 1981, a petition to revoke probation was filed alleging that defendant had committed a new burglary on December 30, 1980. The attached police reports also showed that defendant had committed a criminal trespass (Pen. Code, § 602) on January 15, 1981. Probation was summarily revoked on the day the petition was filed.

Defendant demurred to the revocation petition on the ground that the court lacked jurisdiction because the probationary period had expired on December 28, 1980. In oppositon to the demurrer the People relied…