Biffath v. Warden, Nevada State Prison
Decision Date | 06 April 1979 |
Docket Number | No. 10973,10973 |
Citation | 95 Nev. 260,593 P.2d 51 |
Parties | Ronald BIFFATH, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent. |
Court | Nevada Supreme Court |
Appellant pleaded guilty to armed robbery, a felony under NRS 200.380. He was subsequently sentenced to a nine-year term in the Nevada State Prison for the robbery and to an additional, consecutive nine-year term for having used a firearm in the commission of the crime. NRS 193.165. 1
Appellant, presently serving the first of his two terms, petitioned the district court for post-conviction relief contending that his two consecutive nine-year terms should be totaled for the purpose of awarding credits on his sentence. See NRS 209.443. 2 The district court denied his petition and this appeal followed.
Courts considering this issue have uniformly concluded the award of credits is not a federal constitutional right, but rather, is purely a statutory privilege extended to prisoners by individual state legislatures and may be awarded only in the manner provided by statute. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Woodring v. Whyte, 242 S.E.2d 238 (W.Va.1978); Burns v. Page, 446 P.2d 622 (Okl.Cr.App.1968).
Our statute, NRS 209.443, provides that credits shall be computed based upon the "term of the sentence", and "shall be deducted from the maximum term imposed by the sentence".
We believe, and so hold, that the expressions "term of the sentence" and "term imposed by the sentence" convey the concept of one continuous term of imprisonment and, therefore, the enhanced penalty imposed pursuant to NRS 193.165 should be combined with the term of imprisonment imposed for the primary offense for purposes of computing credits pursuant to NRS 209.443. Cf. Ex Parte Albori, 218 Cal. 34, 21 P.2d 423 (1933); St. Peter v. Rhay, 56 Wash.2d 635, 352 P.2d 806 (1960). To hold otherwise would frustrate the purpose of the statute.
This result is consistent with our holding in Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975), where we held that NRS 193.165 does not prescribe two penalties for one offense, but rather, "provides an additional penalty for the primary offense". Id. at 762, 542 P.2d at 1400. 3 NRS 193.165(2).
Thus, in appellant's case, the term of the sentence, for purposes of NRS 209.443, would be eighteen (18) years, representing the total of (1) the nine-year term imposed for commission of the robbery and (2) the nine-year term imposed for having used a firearm in the commission of the crime.
The district court order is reversed and the case remanded with instructions to grant the requested relief.
1 NRS 193.165 provides, in pertinent part:
2 NRS 209.443 provides, in pertinent part:
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