Wehrheim v. State
| Decision Date | 19 July 1968 |
| Docket Number | No. 5472,5472 |
| Citation | 443 P.2d 607,84 Nev. 477 |
| Parties | Alan E. WEHRHEIM, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Appellant was arrested and charged with possession of narcotics. During the trial his counsel stipulated to the fact that the arresting officers had probable cause when they made their arrest. His chosen theory of defense was to cast doubts upon the chain of the evidence and to raise a reasonable doubt as to the defendant's knowledge that the substance was narcotic in nature. Defendant was found guilty and sentenced to the state prison.
Present counsel was appointed to take an appeal from the guilty verdict. Notice of appeal was filed. Thereafter, counsel filed a petition with this court to be relieved on the ground that he had read and considered the entire record before the trial court and concluded that the appeal was frivolous and without merit. The motion was granted, and the appeal was dismissed.
While the previously mentioned appeal was still before this court, the instant petition for a writ of habeas corpus was filed by the petitioner in proper person in the district court. This was done in an attempt to obtain an evidentiary hearing for petitioner on the issue of the existence of the probable cause for his initial arrest. The district court denied the writ, saying that it was premature, since there was an appeal pending in this court. This appeal from the denial of the writ followed.
1. Appellant states that his petition for a writ of habeas corpus was filed pursuant to NRS 34.500(7). That statute provides:
'If it appears on the return of the writ of habeas corpus that the prisoner is in custody by virtue of process from any court of this state, or judge or officer thereof, such prisoner may be discharged, in any one of the following cases:
In Scott v. State, 83 Nev. 468, 434 P.2d 435 (1967), this court stated:
* * *.
Thus, it is clear that a petition for a writ of habeas corpus to test probable cause for an arrest must be filed and finally determined prior to trial and conviction. This assignment of error fails, for the petition in the present case, filed after the conviction, was not timely.
2. If the habeas petition is considered a post-conviction remedy, pursuant to NRS 177.315 et seq., the court properly found that it was premature. The lower court made its adverse ruling on August...
To continue reading
Request your trial
-
Matter of Starcher
...218 N.W.2d 112 (1974); State v. White, 332 N.W.2d 910 (Minn.1983); State v. Davis, 224 Neb. 205, 397 N.W.2d 41 (1986); Wehrheim v. State, 84 Nev. 477, 443 P.2d 607 (1968); State v. Latham, 83 N.M. 530, 494 P.2d 192 (1972); People v. Garner, 190 A.D.2d 994, 593 N.Y.S.2d 620 (4th Dept.1993); ......
-
Wills v. State, 9023
...to the sufficiency of the evidence to sustain the indictment only by application for a writ of habeas corpus." 1 In Wehrheim v. State, 84 Nev. 477, 443 P.2d 607 (1968), we held that habeas must be pursued and resolved prior to trial. Thus, appellant cannot at this juncture challenge the suf......
-
Williams v. Crawford, Case No. 2:05-CV-00879-PMP-(CWH)
...Chapter 177, a petition like the one petitioner filed was premature and not properly filed. Order, at 1 (#59) (citing Wehrheim v. State, 443 P.2d 607, 608 (Nev. 1968)). The statute currently governing state post-conviction habeas corpus petitions does not change this rule:Any person convict......
-
Gunter v. State
...relief in this case is not premature since a direct appeal is not pending nor any longer available. See Wehrheim v. State, 84 Nev. 477, 443 P.2d 607 (1968); NRS 177.315(2). Moreover, because he was denied right to counsel until after expiration of time to appeal, appellant has established a......