Pope (Danule) v. State

• Court: Nevada Supreme Court
• Decided: July 22, 2013
• Docket: 62532
• Status: Unpublished

Opinion

judgment of conviction. See Buffington v. State, 110 Nev. 124, 126, 868

P.2d 643, 644 (1994).

During the sentencing hearing, defense counsel specifically

requested that "probation begin when Mr. Pope is paroled." And the

district court unambiguously ordered the sentence to run consecutively to

Pope's sentence in his other case. Under these circumstances, we conclude

that the amended judgment of conviction contained a clerical error

because it did not reflect that the sentence was ordered to run

consecutively. When the district court entered the second amended

judgment of conviction to include this requirement, it simply corrected the

clerical error. The district court had jurisdiction to enter the second

amended judgment of conviction because a district court may correct a

clerical error arising from an oversight or omission at any time. NRS

176.565. Accordingly we conclude Pope's contention lacks merit.

Pope also contends that the district court erred by giving a

jury instruction defining when a person is under the influence of a

controlled substance. An appeal from an amended judgment of conviction

may only challenge the amended judgment of conviction to the extent that

it differs from the original judgment of conviction. Cf. Sullivan v. State,

120 Nev. 537, 540-42, 96 P.3d 761, 763-65 (2004) (entry of an amended

judgment of conviction can only provide good cause to file an untimely

post-conviction petition for a writ of habeas corpus if the claims raised

relate to the amendment). To the extent this appeal can be construed as

an appeal from the original judgment of conviction, the notice of appeal

SUPREME COURT OF NEVADA 2 (0) 1947A

MIZ.11111111 AT—MM . CrinfaWatITWA:,. was not timely filed. See NRAP 4(b)(1)(A). Therefore, we lack jurisdiction to consider this claim. See Lozada v. State, 110 Nev. 349, 352, 871 P.2d 944, 946 (1994) ("[A]n untimely notice of appeal fails to vest jurisdiction in this court."). Accordingly, we ORDER the judgments of conviction AFFIRMED.

4) Hrdesty

...„

cc: Hon. Steve L. Dobrescu, District Judge State Public Defender/Ely State Public Defender/Carson City Attorney General/Carson City White Pine County District Attorney White Pine County Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A

7ff21" ru-. fsb