Whatley, Jr. (Gerald) v. State

517 P.3d 236

• Court: Nevada Supreme Court
• Decided: September 22, 2022
• Docket: 85077
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

GERALD LEE WHATLEY, JR., No. 85077 Appellant, vs. NEVADA, FILED THE STATE OF Respondent. SEP 2 2 2022 ELIZABETH A. BROWN CLERKSFAJPREME COURT BY S •Y ORDER DISMISSING APPEAL DEPUTY CLERK

This is an appeal from a judgment of conviction. Eighth

Judicial District Court, Clark County; Eric Johnson, Judge. This court previously ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Specifically, it

appeared that the notice of appeal was untimely filed. In response,

appellant does not dispute that the notice of appeal was untimely filed. Instead, counsel for appellant notes that she filed the transcript request form within the time to file a notice of appeal. Relying on Lemmond v. State, 114 Nev. 219, 220, 954 P.2d 1179, 1179 (1998), and Forman v. Eagle Thrifty Drugs & Markets, Inc., 89 Nev. 533, 536, 516 P.2d 1234, 1236 (1973), overruled on other grounds by Garvin v. Ninth Judicial Dist. Court, 118 Nev. 749, 59 P.3d 1180 (2002), counsel asks that this court construe the transcript request form as a deficient notice of appeal. Pursuant to Lemmond and Forman, this court will not dismiss an appeal due• to a technical defect in the notice of appeal if an intent to appeal from a judgment can be reasonably inferred from the notice of appeal

SUPREME COURT OF NEVADA

(0) I 947A ,29-- A97 9 and the respondent is not misled. This court declines to infer an intent to appeal from a transcript request form.' "[A]n untimely notice of appeal fails to vest jurisdiction in this court." Lozada v. State, 110 Nev. 349, 352, 871 P.2d 944, 946 (1994). Accordingly, this court lacks jurisdiction and ORDERS this appeal DISMISSED.

J. Hardesty

C4-V , , J. Al4 Stiglich Herndon

cc: Hon. Eric Johnson, District Judge Leslie A. Park Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

lIt is noted that appellant has not provided this court with a copy of the form. SUPREME COURT OF NEVADA 2 (0) 1947A