2005 Nevada Revised Statutes - Chapter 177 — Appeals and Remedies After Conviction

CHAPTER 177 - APPEALS AND REMEDIES AFTERCONVICTION

APPEALS: WHEN ALLOWED, HOW TAKEN AND EFFECT THEREOF

NRS 177.015 Appealsto district court and Supreme Court.

NRS 177.025 Appealto Supreme Court taken on questions of law alone.

NRS 177.035 Designationof parties on appeal.

NRS 177.045 Intermediateorder or proceeding may be reviewed on appeal.

NRS 177.055 Automaticappeal in certain cases; mandatory review of death sentence by Supreme Court.

NRS 177.075 Appealto Supreme Court: Notice.

NRS 177.085 Effectof appeal by State.

NRS 177.095 Stayof execution upon sentence of death.

NRS 177.105 Stayof execution upon sentence of imprisonment.

NRS 177.115 Stayof execution upon fine.

NRS 177.125 Stayof probation.

NRS 177.135 Admissionto bail upon appeal.

NRS 177.145 Applicationfor relief pending review.

NRS 177.155 Supervisionof appeal.

NRS 177.165 Preparationof record and papers on appeal.

DISMISSAL OR ARGUMENT OF APPEAL

NRS 177.205 Dismissalby Supreme Court.

NRS 177.215 Datefor argument.

JUDGMENT UPON APPEAL

NRS 177.225 Judgmentmay be affirmed but cannot be reversed without argument.

NRS 177.235 Numberof counsel in argument on appeal.

NRS 177.245 Defendantneed not be present.

NRS 177.255 Courtto give judgment without regard to technical errors.

NRS 177.265 Determinationof appeal.

NRS 177.267 Timewithin which Supreme Court shall render opinion on appeal from judgment ofdeath.

NRS 177.275 Defendantto be discharged on reversal without ordering new trial.

NRS 177.285 Judgmentto be executed on affirmance.

NRS 177.305 Jurisdictionof Supreme Court to cease after certificate of judgment remitted.

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APPEALS: WHEN ALLOWED, HOW TAKEN AND EFFECT THEREOF

NRS 177.015 Appealsto district court and Supreme Court. The partyaggrieved in a criminal action may appeal only as follows:

1. Whether that party is the State or the defendant:

(a) To the district court of the county from a finaljudgment of the Justice Court.

(b) To theSupreme Court from an order of the district court granting a motion to dismiss,a motion for acquittal or a motion in arrest of judgment, or granting or refusinga new trial.

(c) To the Supreme Court from a determination of thedistrict court about whether a defendant is mentally retarded that is made as aresult of a hearing held pursuant to NRS174.098. If the Supreme Court entertains the appeal, it shall enter an orderstaying the criminal proceedings against the defendant for such time as may berequired.

2. The State may, upon good cause shown, appeal to theSupreme Court from a pretrial order of the district court granting or denying amotion to suppress evidence made pursuant to NRS174.125. Notice of the appeal must be filed with the clerk of the districtcourt within 2 judicial days and with the Clerk of the Supreme Court within 5judicial days after the ruling by the district court. The clerk of the districtcourt shall notify counsel for the defendant or, in the case of a defendantwithout counsel, the defendant within 2 judicial days after the filing of thenotice of appeal. The Supreme Court may establish such procedures as itdetermines proper in requiring the appellant to make a preliminary showing ofthe propriety of the appeal and whether there may be a miscarriage of justiceif the appeal is not entertained. If the Supreme Court entertains the appeal,or if it otherwise appears necessary, it may enter an order staying the trialfor such time as may be required.

3. The defendant only may appeal from a final judgmentor verdict in a criminal case.

4. Except as otherwise provided in subsection 3 of NRS 174.035, the defendant in a criminalcase shall not appeal a final judgment or verdict resulting from a plea ofguilty or nolo contendere that the defendant entered into voluntarily and witha full understanding of the nature of the charge and the consequences of theplea, unless the appeal is based upon reasonable constitutional, jurisdictionalor other grounds that challenge the legality of the proceedings. The SupremeCourt may establish procedures to require the defendant to make a preliminaryshowing of the propriety of the appeal.

(Added to NRS by 1967, 1443; A 1971, 1450; 1973,1489; 1981, 1705; 1991, 652; 1995, 1535; 1997, 645; 2003, 769, 1468)

NRS 177.025 Appealto Supreme Court taken on questions of law alone. Theappeal to the Supreme Court from the district court can be taken on questionsof law alone.

(Added to NRS by 1967, 1444)

NRS 177.035 Designationof parties on appeal. The party appealingshall be known as the appellant, and the adverse party as the respondent, butthe title of the action is not changed by reason of the appeal.

(Added to NRS by 1967, 1444)

NRS 177.045 Intermediateorder or proceeding may be reviewed on appeal. Uponthe appeal, any decision of the court in an intermediate order or proceeding,forming a part of the record, may be reviewed.

(Added to NRS by 1967, 1444)

NRS 177.055 Automaticappeal in certain cases; mandatory review of death sentence by Supreme Court.

1. When upon a plea of not guilty or not guilty byreason of insanity a judgment of death is entered, an appeal is deemedautomatically taken by the defendant without any action by him or his counsel,unless the defendant or his counsel affirmatively waives the appeal within 30days after the rendition of the judgment.

2. Whether or not the defendant or his counselaffirmatively waives the appeal, the sentence must be reviewed on the record bythe Supreme Court, which shall consider, in a single proceeding, if an appealis taken:

(a) Any errors enumerated by way of appeal;

(b) If a courtdetermined that the defendant is not mentally retarded during a hearing heldpursuant to NRS 174.098, whether thatdetermination was correct;

(c) Whether the evidence supports the finding of anaggravating circumstance or circumstances;

(d) Whether the sentence of death was imposed under theinfluence of passion, prejudice or any arbitrary factor; and

(e) Whether the sentence of death is excessive,considering both the crime and the defendant.

3. The Supreme Court, when reviewing a death sentence,may:

(a) Affirm the sentence of death;

(b) Set the sentence aside and remand the case for anew penalty hearing before a newly impaneled jury; or

(c) Set aside the sentence of death and impose thesentence of imprisonment for life without possibility of parole.

(Added to NRS by 1967, 1444; A 1977, 1545; 1985,1597; 1995, 2456; 2003,770, 1468, 2084)

NRS 177.075 Appealto Supreme Court: Notice.

1. Except where appeal is automatic, an appeal from adistrict court to the Supreme Court is taken by filing a notice of appeal withthe clerk of the district court. Bills of exception and assignments of error incases governed by this chapter are abolished.

2. When a court imposes sentence upon a defendant whohas not pleaded guilty and who is without counsel, the court shall advise thedefendant of his right to appeal, and if he so requests, the clerk shallprepare and file forthwith a notice of appeal on his behalf.

3. A notice of appeal must be signed:

(a) By the appellant or appellants attorney; or

(b) By the clerk if prepared by him.

(Added to NRS by 1967, 1444; A 1971, 149; 1985, 62;1995, 2457; 2003,1469)

NRS 177.085 Effectof appeal by State.

1. An appeal taken by the State shall in no case stayor affect the operation of a judgment in favor of the defendant; but if the appealby the State is from an order granting a motion to set aside an indictment orinformation, and upon such appeal the order is reversed, the defendant shallthereupon be liable to arrest and trial upon the indictment or information. Inall such cases any statute of limitations on the offense from which the appealis taken is tolled from the time the notice of appeal is filed by the Stateuntil such appeal is heard and a ruling made thereon.

2. If the appeal by the State is from an orderallowing a motion in arrest of judgment, or granting a motion for a new trial,and upon appeal the order is reversed, the trial court shall enter judgmentagainst the defendant.

(Added to NRS by 1967, 1444; A 1969, 106)

NRS 177.095 Stayof execution upon sentence of death. Asentence of death shall be stayed if an appeal is taken.

(Added to NRS by 1967, 1445)

NRS 177.105 Stayof execution upon sentence of imprisonment. Asentence of imprisonment shall be stayed if an appeal is taken and thedefendant is admitted to bail.

(Added to NRS by 1967, 1445)

NRS 177.115 Stayof execution upon fine. A sentence to pay afine or a fine and costs, if an appeal is taken, may be stayed by a JusticeCourt, district court, or by the Supreme Court upon such terms as the courtdeems proper. The court may require the defendant pending appeal to deposit thewhole or any part of the fine and costs in the registry of the court appealedfrom, or to give bond for the payment thereof, or to submit to an examinationof assets, and it may make any appropriate order to restrain the defendant fromdissipating his assets.

(Added to NRS by 1967, 1445)

NRS 177.125 Stayof probation. An order placing the defendanton probation may be stayed if an appeal is taken.

(Added to NRS by 1967, 1445)

NRS 177.135 Admissionto bail upon appeal. Admission to bail upon appealshall be as provided in this title.

(Added to NRS by 1967, 1445)

NRS 177.145 Applicationfor relief pending review. If application ismade to a district court or to a justice of the Supreme Court for bail pendingappeal or for an extension of time for filing the record on appeal or for any otherrelief which might have been granted by the trial court, the application shallbe upon notice and shall show that:

1. Application to the court below or a judge thereofis not practicable;

2. Application has been made and denied, with thereasons given for the denial; or

3. The action on the application did not afford therelief to which the applicant considers himself to be entitled.

(Added to NRS by 1967, 1445)

NRS 177.155 Supervisionof appeal. The supervision and control of theproceedings on appeal shall be in the appellate court from the time the noticeof appeal is filed with its clerk, except as otherwise provided in this title.The appellate court may at any time entertain a motion to dismiss the appeal,or for directions to the trial court, or to modify or vacate any order made bythe trial court or by any judge or justice of the peace in relation to theprosecution of the appeal, including any order fixing or denying bail.

(Added to NRS by 1967, 1445)

NRS 177.165 Preparationof record and papers on appeal. All appealsfrom a district court to the Supreme Court shall be heard on the originalpapers and the reporters transcript of evidence or proceedings. The form andmanner of preparation of the record and of other papers filed may be prescribedby the Supreme Court, and to the extent not otherwise so prescribed shallconform to the practice in civil cases.

(Added to NRS by 1967, 1445)

DISMISSAL OR ARGUMENT OF APPEAL

NRS 177.205 Dismissalby Supreme Court. The Supreme Court may, onits own motion or on motion of the respondent, dismiss an appeal:

1. If the appeal is irregular in any substantialparticular.

2. If the appellant has failed to comply with therequirements for docketing of the record on appeal or filing briefs, unless forgood cause shown an extension is granted.

(Added to NRS by 1967, 1446; A 1985, 63)

NRS 177.215 Datefor argument. Unless good cause is shown foran earlier hearing, the Supreme Court shall set the appeal for argument on adate not less than 30 days after the expiration of the time limited for filingbriefs and as soon thereafter as the state of the calendar will permit.Preference shall be given to appeals in criminal cases over appeals in civilcases.

(Added to NRS by 1967, 1446)

JUDGMENT UPON APPEAL

NRS 177.225 Judgmentmay be affirmed but cannot be reversed without argument. Judgment of affirmance may be granted without argument, ifthe appellant fail to appear. But judgment of reversal can only be given uponargument, orally or upon written brief, though the respondent fail to appear.

(Added to NRS by 1967, 1446)

NRS 177.235 Numberof counsel in argument on appeal. Upon the argumentof the appeal, if the offense is punishable with death, two counsel shall beheard on each side, if they require it. In any other case the Court may, in itsdiscretion, restrict the argument to one counsel on each side.

(Added to NRS by 1967, 1446)

NRS 177.245 Defendantneed not be present. The defendant need not personallyappear in the Supreme Court.

(Added to NRS by 1967, 1446)

NRS 177.255 Courtto give judgment without regard to technical errors. Afterhearing the appeal, the Court shall give judgment without regard to technicalerror or defect which does not affect the substantial rights of the parties.

(Added to NRS by 1967, 1446)

NRS 177.265 Determinationof appeal. The Supreme Court may reverse,affirm, or modify the judgment appealed from, and may, if necessary or proper,order a new trial.

(Added to NRS by 1967, 1447)

NRS 177.267 Timewithin which Supreme Court shall render opinion on appeal from judgment ofdeath.

1. An appeal to the Supreme Court from a judgment ofdeath or the review of such a judgment by that Court must be decided and anopinion rendered within 150 days after the Court has received the record onappeal from the clerk of the sentencing court. If an opinion is not renderedwithin that time, the Chief Justice of the Supreme Court shall state on therecord the reasons which caused the delay and the facts supporting thosereasons.

2. Any failure of the Court to comply with therequirements of this section is not a ground for setting aside the judgment ofdeath.

(Added to NRS by 1985, 388)

NRS 177.275 Defendantto be discharged on reversal without ordering new trial. If a judgment against the defendant is reversed, withoutordering a new trial, the Supreme Court shall direct, if he is in custody, thathe be discharged therefrom, or if he is admitted to bail, that his bail beexonerated, or if money be deposited instead of bail, that it be refunded tothe defendant.

(Added to NRS by 1967, 1447)

NRS 177.285 Judgmentto be executed on affirmance. On a judgment ofaffirmance against the defendant, the original judgment shall be carried intoexecution, as the Supreme Court shall direct.

(Added to NRS by 1967, 1447)

NRS 177.305 Jurisdictionof Supreme Court to cease after certificate of judgment remitted. After the certificate of judgment has been remitted, the SupremeCourt shall have no further jurisdiction of the appeal or of the proceedingsthereon, and all orders which may be necessary to carry the judgment intoeffect shall be made by the Court to which the certificate is remitted.

(Added to NRS by 1967, 1447)