This is a petition for a writ of mandate to compel the respondent court to dismiss an information charging petitioner, June Wilborn, with a violation of section 278 of the Penal Code (child stealing). The ground on which the writ is sought is that petitioner has been denied her right to a speedy trial. (Cal. Const., art. I, § 13; Pen. Code, § 1382.)

The following is a brief history of this case:

Section 1382 of the Penal Code provides in part:

Rule 25 of the Rules on Appeal provides in part:

A decision of the Supreme Court ordinarily becomes final 30 days after the filing of the decision. Therefore the decision in the proceeding in prohibition became final on May 3, 1959. It is conceded that the Superior Court of Humboldt County and the district attorney of Humboldt County were advised of the decision of the Supreme Court. However, the attorney general argues that the superior court was not officially advised by way of remittitur as to the disposition of the matter and that the trial court did not abuse its discretion when it did not set the case for trial until after it had received an official notification from the Supreme Court of its decision.

It would thus appear that both the district attorney and the trial court were awaiting the filing, of a remittitur, although they knew that the decision of the Supreme Court was final. However, as appears from the letter of the clerk of the Supreme Court, no remittitur issues in an original proceeding such as this and therefore no remittitur was issued. We must therefore assume that rule 25, as construed and applied by the Supreme Court, did not require the filing of a remittitur in this ease and that the decision of the Supreme Court became final on May 3,1959.

The proceeding in prohibition had not divested the trial court of jurisdiction of the cause. The stay order had however operated to stay action. When the Supreme Court’s decision became final, the stay was lifted and the court was free to proceed.

When a defendant has not consented to a continuance of a cause against him, and the prosecution fails to show good cause therefor, upon motion of the accused person it is mandatory upon the court to dismiss the action when more than 60 days have elapsed without bringing the case to trial. Under such circumstances the court has no discretion to deny the motion. (Matter of Ford, 160 Cal. 335 , 339 [ 116 P. 757 , Ann. Cas. 1912D 1267, 35 L.R.A. N.S. 882] ; People v. Morino, 85 Cal. 515 [ 24 P. 892 ].) Article I, section 13, of the Constitution of California guarantees an accused person a speedy trial. That constitutional provision is construed by section 1382 of the Penal Code to limit the time within which the trial must be had to a period of 60 days, unless by the defendant’s conduct or acquiescence he consents to extend that time, except when the business of the court, the illness of the judge, or some other good reason for delay prevents the trial during that period of time. In the case of Ford v. Superior Court, 17 Cal.App. 1 , it is said at page 4 [ 118 P. 96 ]:

We believe that the trial court erred in denying defendant’s motion to dismiss the information. The well-settled rule is stated in Herrick v. Municipal Court, 151 Cal.App.2d 804 , at page 807 [ 312 P.2d 264 ], as follows:

The only reason given for not bringing the instant case on for trial within the 60-day period is that the court, although knowing that the decision of the Supreme Court became final on May 3, 1959, entertained the mistaken belief that it did not have jurisdiction to proceed with the case until a remittitur was filed. Apparently the district attorney was under the same impression for he made no effort to set the case for trial within the 60-day period. While this may explain why the case was not set for trial within the 60-day period, it cannot serve as a sufficient excuse for depriving petitioner of her constitutional and statutory right to a speedy trial.

Let a peremptory writ of mandate issue out of this court to the Superior Court of the County of Humboldt commanding and directing that the information be dismissed.

Van Dyke, P. J., and Peek, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied February 3, 1960.