Lemmond v. State, 30978
| Citation | 114 Nev. 219,954 P.2d 1179 |
| Decision Date | 26 February 1998 |
| Docket Number | No. 30978,30978 |
| Parties | Leonard Martin LEMMOND, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
This is an appeal from an order of the district court denying a post-conviction petition for a writ of habeas corpus. Our preliminary review of the documents filed in this appeal revealed a potential jurisdictional defect. Therefore, on November 13, 1997, this court ordered appellant to supplement the documents filed in this appeal with certain additional documents and to show cause why this appeal should not be dismissed for lack of jurisdiction. On December 3, 1997, appellant filed his response to our order.
First, the notice of appeal states that this appeal is taken from the order denying appellant's petition for a writ of habeas corpus entered on August 12, 1997. The district court did not, however, enter an order denying appellant's petition on that date. Rather, on August 12, 1997, there was filed in the district court an amended notice of entry of an order denying appellant's petition entered on February 1, 1995. A notice of entry is not itself an appealable determination. See NRS 177.015; NRS 34.575. The notice of appeal is not, however, intended to be a technical trap for the unwary draftsman. Where, as here, the intent to appeal from a final judgment can be reasonably inferred and the respondent is not misled, we will not dismiss an appeal due to technical defects in the notice of appeal. Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 536, 516 P.2d 1234, 1236 (1973). Therefore, and in view of our determination discussed below, we choose to overlook this technical defect.
Next, it must be determined whether the notice of appeal was timely filed. NRS 34.575(1) provides that "the appeal must be made within 30 days after service by the court of written notice of entry of the order or judgment." The certificate of mailing for the order denying appellant's petition indicates that the district court clerk mailed copies of that order to the Washoe County District Attorney, the Attorney General, and Jane McKenna, apparently appellant's counsel of record at the time. NRS 34.830(2) provides, however, that a copy of the order resolving the petition "must be served by the clerk of the court upon the petitioner and his counsel, if any, the respondent, the attorney general and the district attorney of the county in which the petitioner was convicted."
Appellant states that he was never served with the order denying his petition. Appellant contends that the time for filing a notice of appeal should not begin to run until the district court clerk has fully complied with the requirements of NRS 34.830(2) by serving him with a copy of the order denying his petition. We agree. Specifically, NRS 34.575(1) sets forth a thirty-day period for appealing from an order resolving a petition for a writ of habeas corpus, commencing with service of the order by the clerk of the district court, but does not define that service. We conclude that...
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Klein v. Warden
...the timely filing of a notice of appeal is jurisdictional and is an essential prerequisite to the perfection of an appeal). 4. 114 Nev. 219, 954 P.2d 1179 (1998). 5. NRAP 4(a)(2) The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed i......
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Abdullah v. State
...... the intent to appeal from a final judgment can be reasonably inferred and the respondent is not misled.” Lemmond v. State, 114 Nev. 219, 220, 954 P.2d 1179, 1179 (1998); see also Collins, 97 Nev. at 90, 624 P.2d at 497 (explaining that court will not dismiss an appeal for failure to des......
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Escamilla v. State, 59040.
...was not served with a copy of the dispositional order in the direct appeal contrary to the purported requirements of Lemmond v. State, 114 Nev. 219, 954 P.2d 1179 (1998) (discussing timeliness of appeal from an order denying a habeas corpus petition) and Klein v. Warden, 118 Nev. 305, 43 P.......
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Hoffman v. State
...served with notice of entry of the district court's order filed on September 22, 2011, as required by NRS 34.830(2), see Lemmond v. State, 114 Nev. 219, 220–21, 954 P.2d 1179, 1180 (1998), therefore, the 30–day period for filing a notice of appeal did not begin to run. As a result, we concl......