Shawn (Rick) v. State ( 2015 )

 the appeal should be deemed timely filed pursuant to NRAP 4(d). We
disagree. NRAP 4(d) requires an inmate confined to an institution to use
the notice of appeal log, if available, to receive the benefit of the rule.
Appellant concedes that he failed to use the notice of appeal log as
required. 2 Accordingly, we conclude that we lack jurisdiction over this
appeal, see Lozada v. State, 110 Nev. 349, 352, 871 P.2d 944, 946 (1994),
and we
ORDER this appeal DISMISSED.
J.
Saitta
2:f
Gibbons
J.
PICKERING, J. ,dissenting;
Under this court's holding in Kellogg v. Journal
Communications, 108 Nev. 474, 477, 835 P.2d 12, 13 (1992), if appellant
delivered his notice of appeal to a prison official for mailing on or before
August 4, 2014, the notice of appeal would be deemed timely filed.
Likewise, NRAP 4(d) provides that a notice of appeal "is timely if it is
delivered to a prison official for mailing on or before the last day for filing."
We decline to address appellant's contention that NRAP 4(d) is
2
unconstitutional because it is not supported by cogent argument. See
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
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NRAP 4(d) further provides that when the prison has a notice of appeal
log or another system designed for legal mail, the prisoner must use the
logs to receive the benefit of this rule.
Here, it appears that appellant delivered his notice of appeal
to a prison official for filing on July 26, 2014, within the 30-day appeal
period provided by NRS 34.560(2). Although appellant did not use the
notice of appeal log, as the majority holds NRAP 4(d) requires, I am not
convinced that NRAP 4(d) should be applied to defeat this court's
jurisdiction under the unique circumstances of this case, especially where
our prior orders in this appeal stated that appellant's notice of appeal
would be deemed timely filed pursuant to NRAP 4(d) if he could provide
documentation establishing that he timely delivered the notice of appeal
to a prison official for mailing. Given our prior orders and appellant's
timely delivery of the notice of appeal to a prison official, NRAP 2
authorizes this court to suspend application of NRAP 4(d). I would do so
and allow this appeal to proceed.
Pickering 7 Johns.
cc: Chief Judge, Eighth Judicial District Court
Carmine J. Colucci & Associates
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
Rick Shawn
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