I dissent. The court’s authority in probationary proceedings is wholly regulated by statute. The plain language of section 1203.3 of the Penal Code fixes a limit of time after which judgment cannot be pronounced in probation cases, and section 1191 of said code, specifying the time generally for the pronouncement of judgment in criminal cases, has no application to such distinct proceedings.
After authorizing a revocation, modification or change of a probationary order “during the term of probation” and a termination of probation at any time when “the good conduct and reform” of the probationer warrant it, section 1203.3 provides that “in all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections.” [Emphasis added.) The imperative form of this statutory direction to the court—through the use of the word “shall” (57 *856C.J. 548)—clearly denotes the Legislature’s intent to put a limit upon the time during which a criminal action involving probation considerations may be kept alive and a judgment may be rendered therein. Thus, in People v. O’Donnell, 37 Cal.App. 192 [174 P. 102], it was held that after the probationary period had fully expired, the court had no jurisdiction to revoke the suspension of sentence and impose a term of imprisonment upon the probationer. The same limitation upon the court’s power appears to apply where the revocation of probation is timely but the pronouncement of judgment is delayed beyond the probationary term, for the governing statute plainly refers to the court’s performance of both acts within the jurisdictional period in order to prevent the defendant’s discharge.
Bearing upon this point of construction as to the functioning of the probationary law in this state is the case of People v. Lippner, 219 Cal. 395 [26 P.2d 457]. There the defendant pleaded guilty to three separate charges of violating the Corporate Securities Act. Each offense was punishable by imprisonment in the state prison for five years or in the county jail for not exceeding two years. Sentence was suspended and the defendant was granted probation for five years. Within four years of the probationary period, probation was revoked and judgment was pronounced that the defendant be imprisoned in the county jail for the term of two years upon each of the charges, the sentences to run concurrently. The maximum term of sentence was thus fixed at two years upon the offenses as misdemeanors, and the defendant contended that the court, in not pronouncing judgment until he had been on probation for four years, lost jurisdiction to impose a sentence of imprisonment in the county jail. In rejecting that argument, this court said at page 405: “There is no question but that the court could have sentenced the defendant to state prison for the term of fifteen years at the time he placed him on probation. It was accordingly within the power of the court at that time to fix the period of the defendant’s probation at any term not exceeding the fifteen years, the maximum possible term of sentence which the court could have imposed upon the defendant. As the court fixed, the term of probation at five years, and pronounced judgment against the defendant within that period, it acted within its jurisdiction, and the judgment so imposed is valid and binding upon the defendant.” (Emphasis added.) Implicit in *857this holding is the concept that not only should the order of probation be revoked, but also sentence should be imposed during the probationary period in order to preclude successful challenge of the court’s power to so conclude the case. In other words, unless both acts are done within the time prescribed by statute, it is the duty of the court to discharge the defendant.
As the statute makes no exception to this requirement, the fact of the defendant’s prison commitments in other jurisdictions, as disclosed by the record herein, does not furnish any legal reason for the court’s failure, after its timely revocation of probation, to pronounce judgment within the period prescribed by legislative mandate. The court was empowered to pronounce judgment in the defendant’s absence “in the interest of justice.” (Pen. Code, § 1193.) This was the only course open to the court if it was to so conclude this case within the imperative time requirement of the statute furnishing the measure of the power which it may exercise in probationary matters. Upon revocation of his probation, the defendant stood in the eyes of the law guilty of his crime; he had failed to reestablish himself as a worthy citizen of the state; and the court then, and until the expiration of the two-year probationary period, had jurisdiction, and it was its duty, to pass sentence upon him for the term prescribed by law. Its power to provide for his appropriate punishment was not of indefinite duration. Thus, where the Legislature has evinced its unqualified intent that “in all cases” unless the court has revoked probation and imposed sentence or pronounced judgment, “the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged” (Pen. Code, § 1203.3), there is a clear negation of the court’s authority to proceed otherwise than as the statute specifies at the time in question. Here judgment was not pronounced during the time prescribed, but some four years after the expiration of the probationary period. In so doing the court exceeded the statutory limits of its power, and the judgment should be reversed, (cf. In re Keene, 47 Ariz. 191, 194 [54 P.2d 791], where the Supreme Court of Arizona reached a like decision in ruling upon a similar factual situation in the light of that state’s probationary law containing the same controlling provision as found here in section 1203.3, supra.)
The unmistakable jurisdictional nature of the limitation *858declared by section 1203.3 prevents the application here of the rule followed with respect to judgments pronounced after the expiration of the time fixed by section 1191, supra—that since that provision contemplates a mere matter of procedure not going to the jurisdiction of the court, a delay beyond the time fixed will not result in a reversal unless a miscarriage of justice appears. (People v. French, 12 Cal.2d 720, 773-774 [87 P.2d 1014], and cases there cited.)
For the foregoing reasons I believe the defendant is entitled to his discharge from custody.