Whitehead v. State
| Decision Date | 31 May 2012 |
| Docket Number | No. 55865.,55865. |
| Citation | 128 Nev. Adv. Op. 24,285 P.3d 1053 |
| Parties | Jonathon WHITEHEAD, a/k/a Jonathan Whitehead, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
OPINION TEXT STARTS HERE
Mario D. Valencia, Henderson, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Brian T. Kunzi, District Attorney, and Kirk Darren Vitto, Deputy District Attorney, Nye County, for Respondent.
Before the Court En Banc.
Petitioner Jonathon Whitehead pleaded guilty to DUI causing death and DUI causing substantial bodily harm and subsequently filed a post-conviction petition for writ of habeas corpus. A panel of this court affirmedthe district court's dismissal of his petition as untimely. Whitehead filed a petition for rehearing, which the panel denied, and now Whitehead petitions for en banc reconsideration.
Whitehead contends that the panel overlooked NRS 176.105(1) and whether a judgment of conviction that imposes restitution but leaves the amount of restitution to be determined is final for purposes of triggering the one-year period under NRS 34.726 for filing a postconviction petition for a writ of habeas corpus. Having reviewed the petition and the State's answer, we conclude that reconsideration is warranted. SeeNRAP 40A(a).
When a district court determines that restitution is appropriate, the judgment of conviction must set forth the amount and terms of restitution. NRS 176.105(1); see alsoNRS 176.033(1)(c). We conclude that a judgment of conviction that imposes restitution but does not set an amount of restitution, in violation of Nevada statutes, is not final and therefore does not trigger the one-year time limit for filing a post-conviction petition for a writ of habeas corpus. As Whitehead's postconviction petition is timely under this analysis, we reverse and remand for further proceedings on the merits of the petition.
On September 20, 2006, law enforcement personnel were called to an accident scene in Pahrump, Nevada, where they encountered Whitehead's vehicle overturned on the roadway. Investigators determined that Whitehead had been driving with seven friends packed into his vehicle and at a high rate of speed. At some point, Whitehead veered off the road and overcorrected, causing the vehicle to roll over several times and several occupants to be ejected onto the highway. Seventeen-year-old Brandy Fuller, who had been riding on another occupant's lap, died at the scene, and four other occupants were gravely wounded. A subsequent test of Whitehead's blood taken just after the accident showed that it contained various concentrations of alcohol, marijuana, and marijuana metabolite.
After plea negotiations with the State, Whitehead pleaded guilty to DUI causing death and DUI causing substantial bodily harm. The parties agreed that Whitehead would enter a regimental discipline program and that the State would recommend concurrent sentences. The district court accepted the plea agreement.
After Whitehead completed the regimental discipline program, the district court imposed consecutive terms of 96 to 240 months for DUI causing death and 48 to 120 months for DUI causing substantial bodily harm. The district court entered a judgment of conviction on May 7, 2008, that set forth the sentence for each offense, the credit for time served, and the specific amounts of the fines and assessments imposed but stated “[t]hat restitution shall be determined by stipulation or hearing.” An amended judgment of conviction filed on May 16, 2008, included the same substantive sentencing provisions but stated “[t]hat restitution shall be determined by stipulation or hearing.” The district court ultimately held a restitution hearing and entered a “Second Amended Judgment of Conviction” on January 27, 2009, stating the same sentencing terms and ordering Whitehead to pay $1,390,647 in restitution.
Whitehead did not directly appeal but filed a post-conviction petition for a writ of habeas corpus on May 13, 2009, listing May 16, 2008, as the date of his conviction. In that petition, Whitehead raised 45 claims of constitutional error, none of which related to the amount of restitution. The district court dismissed the petition, concluding that because the date of conviction was May 7, 2008, the petition was untimely and therefore barred by NRS 34.726(1).1 On appeal from the district court's order, Whitehead argued, inter alia, that a judgment of conviction that imposed restitution in an unspecified amount is not final until an amount of restitution is determined and that in his case the final judgment of conviction was not entered until January 27, 2009, making his petition timely.
NRS 34.726(1) states in relevant part that “a petition that challenges the validity of a judgment or sentence must be filed within 1 year after entry of the judgment of conviction.” Both the district court and this court determined that the judgment of conviction that this section refers to was, in Whitehead's case, the judgment of conviction filed on May 7, 2008. In support of that conclusion, this court relied on Sullivan v. State, 120 Nev. 537, 540, 96 P.3d 761, 764 (2004), for the proposition that tolling the one-year time limit every time the district court amended a judgment of conviction to correct an error would “frustrate the purpose and spirit of NRS 34.726.”
Upon reconsideration, however, we conclude that Sullivan is distinguishable. In that case, the...
To continue reading
Request your trial
-
Johnson v. State
...We have previously held that NRS 34.726(1) contemplates a final judgment to trigger the one-year period. See Whitehead v. State, 128 Nev. 259, 285 P.3d 1053 (2012). Johnson and the State do not dispute this, but they disagree as to when his convictions became final for the purposes of the s......
-
Brown v. Baker
...amended judgment—not the original October 2015 judgment. (ECF No. 36-1 at 14-17 (discussing Sullivan, 96 P.3d at 764; Whitehead v. State, 285 P.3d 1053, 1055 (Nev. 2012).) Brown analogizes to Whitehead, in which the Nevada Supreme Court distinguished Sullivan and held that a judgment of con......
-
Witter v. State
...considered the question of finality when a judgment of conviction includes an indeterminate restitution provision in Whitehead v. State, 128 Nev. 259, 285 P.3d 1053 (2012). There, this court held that a judgment of conviction that imposed restitution in an uncertain amount was not final and......
-
Slaatte v. State
...(explaining that court has jurisdiction only when statute or court rule provides for appeal). Our recent decision in Whitehead v. State, 128 Nev. ––––, 285 P.3d 1053 (2012), is controlling. In that case, we considered whether a judgment of conviction that imposed restitution but did not spe......