Nevada Dept. of Prisons v. Bowen

• Decision Date: 20 November 1987
• Docket Number: No. 17395,17395
• Citation: 745 P.2d 697,103 Nev. 477
• Parties: NEVADA DEPARTMENT OF PRISONS, George Sumner, Director, Appellant, v. Wayne L. BOWEN, Respondent.
• Court: Nevada Supreme Court

Page 697

745 P.2d 697

103 Nev. 477

NEVADA DEPARTMENT OF PRISONS, George Sumner, Director, Appellant, v. Wayne L. BOWEN, Respondent.

No. 17395.

Supreme Court of Nevada.

Nov. 20, 1987.

Brian McKay, Atty. Gen. and Arthur G. Noxon, Deputy Atty. Gen., Carson City, for appellant.

Terri Steik Roeser, State Public Defender and Michael K. Powell, Chief Appellate Deputy State Public Defender, Carson City, for respondent.

OPINION

PER CURIAM:

This is an appeal from an order of the district court granting respondent's post-conviction petition for a writ of habeas corpus, and ordering respondent's immediate release from prison. We affirm.

The facts are not disputed. On June 29, 1979, respondent was convicted of one count of robbery with the use of a deadly weapon. Respondent was sentenced to two consecutive seven-year prison terms; seven years for the robbery and seven years for the use of a deadly weapon. See NRS 200.380; NRS 193.165. The State Board of Parole Commissioners ("parole board") treated respondent's sentences as two separate seven-year terms. Therefore, respondent was granted an institutional parole from his first seven-year sentence to his second seven-year sentence on May 27, 1980. In early 1981, pursuant to Director, Prisons v. Biffath, 97 Nev. 18, 621 P.2d 1113 (1981), prison officials recalculated the sentences of all prisoners serving consecutive sentences for using a deadly weapon during the commission of a crime to reflect this court's opinion that the primary sentence for an offense and the enhancement sentence for the use of a deadly weapon must be treated as a single sentence for purposes of computing parole eligibility. Respondent's sentence was recomputed at that time, and respondent was so informed. Thereafter, the parole board and the prison treated respondent's two consecutive sentences as a single term of imprisonment for all purposes. It is stipulated, however, that the parole board took no official action to revoke the institutional parole granted to respondent on May 27, 1980. Instead, the parole board and the department of prisons simply ignored the institutional parole as a nullity.

On February 19, 1986, respondent petitioned the district court for a writ of habeas corpus, contending that his sentence had finally expired on May 29, 1985. The district court, reasoning that the parole board was the only entity that could revoke a parole, concluded that respondent's parole was effective until formally revoked. Therefore, the district court granted the petition on the sole ground that the parole board had not taken any official action to revoke respondent's institutional parole.

The state contends that the district court erred in concluding that official action on the part of the parole board was necessary to revoke appellant's institutional parole. According to the state, the opinions of this court on which the parole board and the department of prisons relied in ignoring respondent's institutional parole rendered his initial institutional parole void as a matter of law, and no action on the part of the parole board was required to revoke respondent's institutional parole. Because we have determined that the decision of the district court must be affirmed on other grounds, we decline to address the state's contention at this time.

NRS 193.165 (emphasis added) provides in relevant part as follows:

1. Any person who uses a firearm or other deadly weapon ... in the commission of a crime shall be punished by imprisonment in the state prison for a term equal to and in addition to the term of imprisonment prescribed by statute for such crime. The sentence prescribed by this section shall run consecutively with the sentence prescribed by statute for such crime.

2. This section does not create any separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.

In Woofter v. O'Donnell, 91 Nev. 756, 542 P.2d 1396 (1975), this court upheld the constitutionality of NRS 193.165 against attacks based on double jeopardy and vagueness. Specifically, this court concluded that the enhancement sentence for the use of a deadly weapon in the commission of a crime constituted an additional penalty for the primary offense rather than a separate offense. Therefore, this court perceived no conflict between the penalty imposed by NRS 193.165 and the double jeopardy clause of the United States Constitution. This court also held that NRS 193.165 was sufficiently clear and definite to withstand constitutional scrutiny under the vagueness doctrine. Id. at 762, 542 P.2d at 1400. In Raby v. State, 92 Nev. 30, 544 P.2d 895 (1976), this court, relying on Woofter, vacated five of Raby's ten convictions that were improperly based on Raby's use of a firearm in the commission of five robberies. This court held that, although Raby's sentences for the five robberies could be enhanced for the use of the dangerous weapon pursuant to NRS 193.165, the enhancement sentences did not constitute separate offenses that could form the bases of separate convictions. We now reaffirm our holdings in Woofter and Raby. ¹

In Biffath v. Warden, 95 Nev. 260, 593 P.2d 51 (1979) (Biffath I ), a prisoner relied on Woofter to support his contention that a primary sentence and an enhanced sentence must be treated as one sentence for purposes of computing statutory good-time credits. In deciding the appeal, this court noted that read literally, "NRS 193.165(1) purports to prescribe a separate sentence for use of a firearm in the commission of a crime...." Id. at 263 n. 3, 593 P.2d at 52 n. 3. However, this court was concerned that, "if literally construed, such provision [of NRS 193.165(1) ] would contravene fundamental double jeopardy guarantees against multiple punishments for the same offense." Id. (emphasis added). This fundamental conception of the requirements of the double jeopardy clause prompted this court to ignore the plain language of NRS 193.165, and to conclude that the primary sentence and enhancement sentence must be treated as a single sentence for purposes of awarding good-time credits. In Director, Prisons v. Biffath, 97 Nev. 18, 621 P.2d 1113 (1981) (Biffath II ), relying on the same reasoning, this court held that a primary sentence and an enhancement sentence must be treated as one sentence for purposes of computing eligibility for parole. ² Finally, in Kreidel v. State, 100 Nev. 220, 222, 678 P.2d 1157, 1158 (1984), this court reaffirmed the decision in Biffath II, and held that Biffath II should be applied retroactively. The state and this court have since treated the primary and enhancement sentences as one continuous sentence for all purposes. ³

In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), the United States Supreme Court held that the double jeopardy clause of the United States Constitution does not preclude a state legislature from imposing cumulative punishments for a single offense. The Court stated: ...