Slaatte v. State ( 2013 )

129 Nev., Advance Opinion 23
IN THE SUPREME COURT OF THE STATE OF NEVADA
JON ROBERT SLAATTE, No. 60799
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. APR 1 8 2013
Al/ 04)``, -',,,
Appeal from a judgment of conviction. Ninth Judicial District
Court, Douglas County; David R. Gamble, Judge.
Dismissed.
Derrick M. Lopez, Gardnerville,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Mark B. Jackson,
District Attorney, and Thomas W. Gregory, Chief Deputy District
Attorney, Douglas County,
for Respondent.
BEFORE PICKERING, C.J., HARDESTY and SAITTA, JJ.
OPINION
PER CURIAM:
In this appeal, we address a threshold jurisdiction issue: Is a
judgment of conviction that imposes restitution in an uncertain amount an
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appealable final judgment? We conclude that it is not, and, as a result, we
dismiss this appeal for lack of jurisdiction.
Appellant Jon Robert Slaatte pleaded guilty to one count of
lewdness with a child under 14 years of age. The district court sentenced
him to life in prison with the possibility of parole after 10 years. The
district court also determined that restitution should be imposed as part of
the sentence, but the court did not set an amount of restitution. Instead,
the judgment entered by the court orders Slaatte to appear at 9 a.m. on a
Tuesday law-and-motion calendar within 60 days after his release from
prison "to have this Court determine what restitution for victim
compensation that will be ordered at that time." Slaatte filed a timely
notice of appeal.
Slaatte argues that Nevada law requires that the district
court set an amount of restitution when it determines that restitution is
appropriate as part of a sentence. Because the district court failed to
comply with that requirement, Slaatte urges this court to "set aside or
reverse the district court's order regarding restitution." For its part, the
State concedes error and urges the court to remand this matter to the
district court so that it can specify the amount of restitution imposed as
part of the sentence.
We agree with the parties that the district court clearly erred.
NRS 176.033(1)(c) requires the district court to "set an amount of
restitution" when it determines that restitution "is appropriate" as part of
a sentence. When the district court determines that restitution is
appropriate as part of a sentence, it must include the amount and terms of
the restitution in the judgment of conviction. NRS 176.105(1)(c) ("the
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judgment of conviction must set forth. . . any term of imprisonment, the
amount and terms of any fine, restitution or administrative assessment").
Consistent with these statutory requirements, this court has held that a
district court is not allowed "to award restitution in uncertain terms."
Botts v. State, 109 Nev. 567, 569, 854 P.2d 856, 857 (1993). In cases where
a district court has violated this proscription, this court historically has
remanded for the district court to set an amount of restitution. E.g.,
Washington v. State, 112 Nev. 1067, 1075, 922 P.2d 547, 551-52 (1996);
Smith v. State, 112 Nev. 871, 873, 920 P.2d 1002, 1003 (1996); Roe v.
State, 112 Nev. 733, 736, 917 P.2d 959, 960-61 (1996); Botts, 109 Nev. at
569, 854 P.2d at 857.
None of our prior decisions addressed whether the judgment
was final given its failure to comply with NRS 176.105(1). If such a
judgment is not appealable as a final judgment, see NRS 177.015(3), we
lack jurisdiction over this appeal. See Castillo v. State, 106 Nev. 349, 352,
792 P.2d 1133, 1135 (1990) (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 specify the amount of restitution was sufficient to
trigger the one-year period under NRS 34.726 for filing a post-conviction
petition for a writ of habeas corpus. Id. at , 285 P.3d at 1055. Based on
the requirement in NRS 176.105(1)(c) that the amount of restitution be
included in the judgment of conviction if the court imposes restitution, we
concluded "that a judgment of conviction that imposes a restitution
obligation but does not specify its terms is not a final judgment" and
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therefore it does not trigger the one-year period for filing a habeas
petition. Id. Given our decision in Whitehead that such a judgment is not
a final judgment, we necessarily conclude that it also is not appealable.
In this case, the district court clearly determined that
restitution should be imposed as part of the sentence. The court, however,
did not specify the amount of restitution, as required for a final judgment.
We acknowledge that the district court appears to have been concerned
with setting an amount of restitution because of the possibility that the
victim, who had been in counseling, would incur additional counseling
expenses in the future. 1 Any concern about ongoing counseling expenses,
however, does not override the district court's statutory obligation to
award restitution in certain terms and to do so in the judgment of
conviction. See Washington, 112 Nev. at 1074-75, 922 P.2d at 551(concluding that district court, which ordered defendant to "pay any future
counselling costs for victim," erred by failing to set specific dollar amount
of restitution for such costs (internal quotation marks omitted)). Because
the judgment of conviction contemplates restitution in an uncertain
'The record suggests that the parties and the district court had some
concern that as of the date of sentencing there had not been any expenses
for counseling that could properly be included as restitution. Because the
district court has not imposed a specific amount or identified who it must
be paid to, those concerns are not before us, and we therefore express no
opinion on those matters.
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amount, it is not final and therefore is not appealable. Accordingly, we
lack jurisdiction over this appeal. The appeal is dismissed on that basis. 2
ekt4.. 14
' , C.J.
Pickering
J.
Hardesty Saitta
We provided Slaatte with an opportunity to show cause why this
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appeal should not be dismissed for lack of jurisdiction. He has not
responded.
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