Pope (Danule) v. State

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

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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.

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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

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