Ross v. State

• Court: Nevada Supreme Court
• Writing for the Court: BATJER; GUNDERSON
• Citation: Ross v. State, 97 Nev. 40, 623 P.2d 980 (Nev. 1981)
• Decision Date: 20 February 1981
• Docket Number: No. 10856,10856
• Parties: Danny L. ROSS, James F. Taylor and Claude Theriault, Appellants, v. The STATE of Nevada, Respondent.

Page 980

623 P.2d 980

97 Nev. 40

Danny L. ROSS, James F. Taylor and Claude Theriault, Appellants, v. The STATE of Nevada, Respondent.

No. 10856.

Supreme Court of Nevada.

Feb. 20, 1981.

[97 Nev. 41] Stephen M. Stephens, Carson City, for appellant Danny L. Ross.

Samuel S. Wardle, Carson City, for appellant James F. Taylor.

Paul C. Giese, Reno, for appellant Claude Theriault.

Richard H. Bryan, Atty. Gen., Carson City, for respondent.

OPINION

BATJER, Justice:

Appellants were convicted of murder for their participation in a prison riot which took place on October 10, 1976, in the Nevada State Prison in Carson City. Taylor and Theriault were sentenced to death. ¹ Ross was sentenced to two consecutive terms of life imprisonment without possibility of parole. We reverse the convictions and remand the case because appellants were denied the assistance of counsel at their trial.

The record demonstrates that appellants validly waived their right to representation by counsel, invoked their constitutional right to represent themselves, and proceeded to litigate pretrial writs and motions in propria persona. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Nev.Const. art. 1 § 8. The record also shows, however, that a month before the date set for trial, the appellants retracted their waivers of the right to counsel, and requested that counsel be appointed to represent them at trial. We need not decide at what point the district court would have discretion to refuse to appoint counsel when a defendant seeks to terminate his propria persona status. See State v. MacKinnon, 41 Nev. 182, 168 P. 330 (1917) (request for counsel when case called for trial). We hold that under the circumstances of this case, when the defendants requested that counsel be appointed to represent them a month before the scheduled trial date, the district court had no discretion to refuse appointment of counsel. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. DeLuna, 110 Ariz. 497, 520 P.2d 1121 (Ariz.1974); Ferrel v. Superior Ct. of L.A. County, 20 Cal.3d 888, 144 Cal.Rptr. 610, 611 n.5, 576 P.2d 93, 95 n.5 (1978); see also Garnick v. Miller, 81 Nev. 372, 403 P.2d 850 (1965). We are therefore constrained to reverse these convictions and remand to the district court for a new trial.

In view of our disposition of the case, other errors assigned by appellants need not be considered. The judgments of conviction are reversed and the case is remanded to the district court for a new trial.

GUNDERSON, C. J., and MANOUKIAN, SPRINGER and MOWBRAY, JJ., concur.

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