Atteberry v. State
This text of 438 P.2d 789 (Atteberry v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
*215 OPINION
By the Court,
This appeal attacks the constitutionality of the Registration of Convicted Persons Act (NRS 207.080 to 207.150). Appellant contends its enforcement against him violates his federal and state constitutional rights. The trial court upheld the act. We affirm that decision.
Appellant, James Ellis Atteberry, is admittedly a convicted person required to register under the act. He had once registered with the sheriff of Clark County. He failed, however, to notify the sheriff of his change of residence from one place in Clark County to another and was arrested.
Appellant contends NRS §§ 207.090 and 207.100 1 violate *216 his privilege against self-incrimination under Article 1, section 8, of the Nevada Constitution, the Fifth Amendment made binding upon the states through the Fourteenth Amendment of the United States Constitution and his right to freedom and equality guaranteed by Article 1, section 1, of the Nevada Constitution.
More specifically, appellant complains that by registering under the act he is compelled to make disclosures and provide information under threat of fine or imprisonment which might tend to incriminate him under the Nevada Habitual Criminal Act (NRS 207.010). He argues the information he is required to disclose by registration supplies investigatory leads to the police and constitutes incriminating information about himself which would be admissible in a subsequent criminal prosecution. As his principal authority for these contentions, he cites Albertson v. Subversive Activities Control Board, 382 U.S. 70 (1965), and Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966). None of these contentions is sound.
*217 We have held that a proceeding under the Habitual Criminal Act does not charge a separate substantive crime, but is an averment of fact which affects punishment. State v. Bardmess, 54 Nev. 84, 7 P.2d 817 (1932); Lisby v. State, 82 Nev. 183, 414 P.2d 592 (1966); Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966); Howard v. State, 83 Nev. 53, 422 P.2d 548 (1967); Hardison v. State, 84 Nev. 123, 437 P.2d 872 (1968). Prima-facie proof of prior convictions in a habitual criminal proceeding may be by exemplified copy of convictions (NRS 207.010(6)), together with proof of an unusual name (Hollander v. State, supra); and additionally, certified fingerprint cards and photographs from penal institutions (Plunkett v. State, 84 Nev. 145, 437 P.2d 92 (1968). The burden of proof in such a proceeding continues to remain with the state, and it must be beyond a reasonable doubt. Hollander v. State, supra; Howard v. State, supra. The hearing is procedural, and does not increase punishment for the principal offense. It allows increased punishment for a recidivist. Howard v. State, supra.
We do not feel the rules announced by the United States Supreme Court in Albertson v. Subversive Activities Control Board, supra; Haynes v. United States, 390 U.S. 85 (1968); Marchetti v. United States, 390 U.S. 39 (1968); or Grosso v. United States, 390 U.S. 62 (1968), apply to this case. We fail to see where the information required to be disclosed by the Nevada statutes in question per se incriminates the registrant. Cf. Albertson v. Subversive Activities Control Board, supra. Nor has appellant shown any circumstances which would justify his raising his privilege against self-incrimination as a defense. Cf. United States v. Sullivan, 274 U.S. 259 (1927); Marchetti v. United States, supra; Haynes v. United States, supra; Grosso v. United States, supra. The disclosure required by the act is merely a compilation of former convictions already publicly recorded in the jurisdiction where obtained. Lambert v. California, 355 U.S. 225 (1957). Moreover, this information is always available through fingerprints from the extensive criminal identification files of the FBI and various state agencies.
Due process requirements were clearly satisfied in that appellant knew of his duty to register. Lambert v. California, supra. Fie had once previously registered under the act in *218 Clark County. He was prosecuted in this case for failing to advise of his subsequent change of address within the county.
Appellant has failed to demonstrate by authority or argument how his rights under Article 1, section 1, of the Nevada Constitution have been violated by the enactment.
The registration requirement of the act is no doubt a valuable tool in the hands of the police, because it gives them a current record of the identity and location of ex-felons. On the other hand, we can visualize how the enforcement of the act could be used for “rousting” purposes by the police. That, however, is not the issue before us. It might even be desirable and wise to exempt certain formerly convicted persons from the requirements of registration, i.e., convictions followed by many years of law-abiding conduct. These, and other problems arising from the requirements of the act are, however, properly directed to the legislature for its consideration.
The judgment of the lower court is affirmed.
207.090. “1. It shall be unlawful for any convicted person to be or remain in the State of Nevada for a period of more than 48 hours without, during such 48-hour period, registering with the sheriff of .any county or the chief of police of any city in the manner hereinafter prescribed.
“2.
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Cite This Page — Counsel Stack
438 P.2d 789, 84 Nev. 213, 1968 Nev. LEXIS 337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atteberry-v-state-nev-1968.