Nevada Supreme Court issues opinion on weapons enhancement & issues civil opinion

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Mendoza-Lobos v. State -(Majority opinion authored by Chief Justice Hardesty and joined by Justices Saitta, Gibbons and Cherry) -  "In this appeal, we address two issues related to recent amendments to the deadly weapon enhancement statute, NRS 193.165(1), that require the district court to consider enumerated factors and state on the record that it has considered the factors in determining the length of the enhancement sentence.

First, we consider whether these amendments to NRS 193.165(1) violate the separation-of-powers doctrine.  Although we conclude that the amended statute violates the separation-of-powers doctrine to the extent that it requires the courts to state on the record that the enumerated factors have been considered and to make specific findings in that respect, we nonetheless elect to abide by the mandate contained therein because it serves a laudable legislative goal with respect to the length of enhancement sentences and facilitates appellate review. 

Second, we consider whether NRS 193.165(1) requires the district court to make findings on the record before imposing a sentence enhancement for the use of a deadly weapon.  We conclude that it does and that findings must be made for each enhancement.  Applying our holding to the instant case, we conclude that the district court's failure to make the required findings for two of appellant Douglas Mendoza-Lobos' enhancements does not amount to plain error warranting reversal of his conviction and sentence.  Therefore, we affirm the judgment of conviction."

Justices Douglas, Parraguirre and Pickering agree that "the portion of NRS 193.165(1) requiring the district courts to consider certain enumerated factors when imposing a sentence for a deadly weapon enhancement does not run afoul of the separation-of-powers doctrine.  I also agree with the result reached.  However, [they] disagree with [their] colleagues' conclusion that NRS 193.165(1) is ambiguous."

The Court also issued an opinion in a civil case today.  In NC-DSH v. Garner, the Court addresses the impact of an egregious fraud upon the court by attorney Lawrence Davidson.  Without knowledge or approval of his clients, Davidson settled their case for $160,000, forget the necessary settlement papers and disappeared with the money.  The clients obtained an order from the district court vacated a stipulated final judgment under NRCP 60(b).  The hospital defendant appealed.  The Court affirms:  "The district court found that Davidson committed "fraud upon the court," which is not subject to NRCP 60(b)(3)'s six-month limitations period.  Murphy v. Murphy, 103 Nev. 185, 186, 734 P.2d 738, 739 (1987).  Although true fraud on the court is rare and requires "egregious misconduct," Occhiuto v. Occhiuto, 97 Nev. 143, 146 n.2, 625 P.2d 568, 570 n.2 (1981) (quoting United States v. International Telephone & Tel. Corp., 349 F. Supp. 22, 29 (D. Conn. 1972)), the district court did not abuse its discretion in finding such fraud by Davidson here.  Nor were its findings that Davidson lacked authority and the Garners did not ratify the settlement clearly erroneous.  Finally, while the Hospital argues the Garners' motion was untimely because not made within six months of entry of judgment, it did not establish prejudicial delay."

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This page contains a single entry by JoNell published on October 29, 2009 9:27 AM.

Death Penalty Costs Examined was the previous entry in this blog.

Nevada Supreme Court vacates death sentence is the next entry in this blog.

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