455 P.2d 923 (Nev. 1969), 5862, State v. Second Judicial Dist. Court

Docket Nº:5862.
Citation:455 P.2d 923, 85 Nev. 381
Party Name:STATE of Nevada, Petitioner, v. SECOND JUDICIAL DISTRICT COURT, Respondent.
Case Date:June 16, 1969
Court:Supreme Court of Nevada
 
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Page 923

455 P.2d 923 (Nev. 1969)

85 Nev. 381

STATE of Nevada, Petitioner,

v.

SECOND JUDICIAL DISTRICT COURT, Respondent.

No. 5862.

Supreme Court of Nevada.

June 16, 1969.

Page 924

William J. Raggio, Dist. Atty., and C. Frederick Pinkerton, Deputy Dist. Atty., Reno, for petitioner.

James W. Johnson, Jr., Reno, for respondent.

[85 Nev. 382] OPINION

COLLINS, Chief Justice.

Petitioner seeks review by writ of certiorari of an order of the lower court dismissing a felony burglary charge against Rebert James Bernardelli. We conclude the application should be treated as an appeal, reverse the lower court's ruling and remand the case for further proceedings.

Petitioner sought and we improvidently granted a writ of certiorari, to review the action of the lower court in dismissing, of its own motion, a felony burglary charge.

Robert James Bernardelli, 'one of five of the best gunsmiths west of the Rocky Mountains,' worked for Juenke-Saturn, Inc. of Reno. While in that company's employ, he invented certain gunsmith tools. When his employment with that company ended, he sought to take the tools, but was repulsed on the grounds they belonged to the company because invented on its time. Bernardelli brooded about the circumstance and later, while drinking with his brother, Edward, decided to break in the gun shop and retrieve the tools. Unbeknown to them a burglary alarm system had been installed which they tripped. The police arrested them inside the building.

On October 2, 1968, a criminal complaint was filed charging both defendants with Burglary. Edward waived preliminary hearing, entered a plea of guilty, and received probation.

Robert initially pleaded not guilty, but subsequently changed his plea to guilty also.

At the sentencing hearing, Robert's counsel asked that imposition of sentence be stayed until he could apply to the board of pardons for relief, because his client, who he represented [85 Nev. 383] had no prior criminal record, if convicted of a felony would lose his license to receive gun parts under the State Firearms Control Assistance Act and be deprived of his ability to earn a living for himself and his family.

The trial judge, having the probation report before him, noted that Robert had no prior criminal record and suggested that if counsel moved to withdraw the plea of guilty and dismiss the action, he would grant...

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