People v. Rogers

Appellant was charged by amended information with two counts of robbery (Pen. Code, §211) and three counts of assault with a deadly weapon (§ 245, subd. (a)(2)). It was further alleged appellant used a gun in the commission of each of the robbery counts. Additionally, it was alleged appellant had suffered five prior serious felony convictions within the meaning of section 667, subdivision (a). Following a jury trial, appellant was convicted on all counts and the five prior serious felony convictions were found to be true.

Appellant filed a timely appeal to this court and in an unpublished opinion we affirmed the conviction on all counts and the two section 12022.5 enhancements but struck three of the five prior serious felony convictions and remanded for resentencing. A remittitur was filed on August 28, 1985.

In the interim, between appellant’s conviction in this case and the filing of the remittitur, appellant was committed to federal prison prior to September 1985, and was incarcerated in a federal institution at Leavenworth, Kansas. The Fresno County Superior Court set a hearing on the remittitur for September 26, 1985. Appellant was not present for that hearing and…