Uceda (Alexander) v. State ( 2015 )

 61657 (Order Affirming in Part, Reversing in Part and Remanding, May
13, 2014). On remand, the district court resentenced Uceda to 5 to 20
years in prison on the discharging-a-firearm count (count 4) and also
increased the sentences on the robbery counts (counts 2 and 3) to life
without the possibility of parole.
While Nevada's double-jeopardy protections prohibit a district
court from increasing a lawful sentence on a count after this court has
vacated an unlawful sentence on another count, see Wilson v. State, 123
Nev. 587, 594, 170 P.3d 975, 979 (2007), they do not preclude a district
court from correcting an illegal sentence by "increasing its severity . . .
when necessary to bring the sentence into compliance with the pertinent
statute," Miranda v. State, 114 Nev. 385, 387, 956 P.2d 1377, 1378 (1998).
Here, the original judgment of conviction reflects that Uceda
was adjudicated and sentenced as a habitual felon under NRS 207.012 for
the two counts of robbery with the use of a deadly weapon. NRS 207.012
sets forth three possible sentences, the lowest of which is 10 to 25 years in
prison, and mandates the imposition of one of these habitual felon
sentences once two qualifying felonies are proven. Therefore, the district
court had no discretion to impose a• sentence of less than 10 to 25 years in
prison on the robbery counts after it found that the State had proven two
qualifying felonies, and the sentences of 5 to 20 years on the robbery
counts were illegal under NRS 207.012. As such, the sentences could be
corrected on remand without violating double jeopardy, as long as the
correction did not increase the sentences more than necessary to bring the
sentences into compliance with NRS 207.012. See Miranda, 114 Nev. at
387, 956 P.2d at 1378. However, because the district court could have
corrected the robbery sentences by imposing terms of 10 to 25 years in
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prison under the habitual felon statute, rather than the more severe terms
of life without the possibility of parole, the sentencing correction violated
double jeopardy. Therefore, we reverse the sentences imposed by the
district court on the robbery counts (counts 2 and 3) and remand this case
for resentencing. We instruct the district court to correct the illegal
sentences on counts 2 and 3 by imposing terms of 10 to 25 years in prison
on each of those counts. Accordingly, we
ORDER the amended judgment of conviction REVERSED
AND REMAND this matter to the district court for proceedings consistent
with this order.
Pickering
cc: Hon. Douglas Smith, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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