HOWARD M. MILLER, Special Prosecutor, State of Nevada, County of Clark, Petitioner, v. THE HONORABLE KEITH C. HAYES, District Judge of the Eighth Judicial District Court, in and for the County of Clark, State of Nevada, and JANIECE SEARLES BELLANGER, Respondents
Miller v. Hayes
Mowbray, C. J., and Gunderson, J., concur.
HOWARD M. MILLER, Special Prosecutor, State of Nevada, County of Clark, Petitioner, v. THE HONORABLE KEITH C. HAYES, District Judge of the Eighth Judicial District Court, in and for the County of Clark, State of Nevada, and JANIECE SEARLES BELLANGER, Respondents.
HOWARD M. MILLER, Special Prosecutor, State of Nevada, County of Clark, Petitioner, v. THE HONORABLE KEITH C. HAYES, District Judge of the Eighth Judicial District Court, in and for the County of Clark, State of Nevada, and JANIECE SEARLES BELLANGER, Respondents.
No. 12189
December 20, 1979
604 P.2d 117
Howard M. Miller, Special Prosecutor, Clark County, State of Nevada, for Petitioner.
John Peter Lee, Las Vegas, for Respondents.
OPINION
By the Court,
Batjer, J.:
Howard M. Miller, Special Prosecutor for the State of Nevada, Clark County, petitions this court for a writ of mandamus compelling respondent Judge Keith C. Hayes to enter a judgment of conviction against Janiece Searles Bellanger in the form pronounced on June 26, 1979, and to vacate the judgment of conviction signed and entered against her on July 6, 1979.
Bellanger pleaded nolo contendere to the felony charge of driving under the influence of intoxicating liquor resulting in death or substantial bodily harm to another person. NRS 484.3795. On June 26, 1979, imposition of sentence and judgment were pronounced by the court and entered in the court minutes. The defendant was sentenced "to Nevada State Prison for a term of five (5) years, sentence to commence immediately," and was fined $5,000. The judgment was neither signed by the judge nor entered by the clerk.
On July 6, 1979, the district court conducted another hearing, reconsidered the question of probation, announced that the previous sentence was "withdrawn," and again pronounced sentence of five years in the Nevada State Prison and a $5,000 fine, but ordered that the sentence be suspended and the defendant placed on an indeterminate period of probation, not to exceed five years, on the special condition that she pay for and complete a residential rehabilitation program for alcoholics at Gemini Group Home, Inc., and that she not be released from such program without prior approval by that court. She was further ordered not to drink any alcoholic beverages, and not to drive.
The petitioner contends that the district court was without jurisdiction to modify in any manner, and for any cause, the sentence pronounced, but not signed or entered, on June 26, 1979. We disagree.
NRS 176.185(3) provides that "[i]n issuing the order granting probation, the court may fix the terms and conditions thereof, . . . except that the court shall not suspend the execution of a sentence of imprisonment after the defendant has begun to serve it." See also State v. District Court, 85 Nev. 485, 457 P.2d 217 (1969). The question before this court, then, is simply when does a defendant begin to serve a sentence of imprisonment.
The district court pronounced sentence on June 26, 1979 "to commence immediately". While NRS 176.335(3) provides that "[t]he term of imprisonment designated in the judgment shall begin on the date of sentence of the prisoner by the Court," we do not believe that subsection 3 is applicable to this case. Contrary to petitioner's contention, a district judge's pronouncement of judgment and sentence from the bench is not a final judgment and does not, without more, oust the district court of jurisdiction over the defendant. Only after a judgment of conviction is "signed by the judge and entered by the clerk," as provided by NRS 176.105, does it become final and does the defendant begin to serve a sentence of imprisonment. Otherwise, a district judge could never suspend an announced sentence and grant probation under NRS 176.185(1), since the defendant, immediately after pronouncement of sentence, would have commenced serving his or her sentence.
At the time the district judge reconsidered his previous action, resentenced the petitioner, and placed her on probation, no judgment had been signed by the judge nor entered by the clerk. Therefore the district judge had jurisdiction to modify or suspend his earlier decision.
Writ denied.
Mowbray, C. J., and Gunderson, J., concur.