Domingues (Michael) v. State ( 2013 )

 sentence. According to appellant, the district court's order denying the
motion to correct an illegal sentence was not final when entered because
the State had submitted the draft of the order to the court and appellant
at the same time and therefore the court "was entirely precluded from
considering [his] response to the draft Findings until after the Findings
were signed by the district court and filed by the clerk's office." Appellant
relies on Byford v. State, 123 Nev. 67, 156 P.3d 691 (2007).
The concerns expressed by appellant do not alter the finality
of the order entered on July 23, 2013. That order clearly and finally
resolved the motion; it includes detailed findings and conclusions. It was
signed by the judge and filed with the clerk. At that point, the 30-day
appeal period started to run. See NRAP 4(b)(1)(A) ("[T]he notice of appeal
by a defendant or petitioner in a criminal case shall be filed with the
district court clerk within 30 days after entry of the judgment or order
being appealed."); NRAP 4(b)(4) ("A judgment or order is entered for
purposes of this Rule when it is signed by the judge and filed with the
clerk."). Even assuming that the district court did not provide appellant
with the opportunity to be heard on the proposed findings of fact and
conclusions of law, the error does not affect the finality of the order or the
time to file an appeal. If anything, the error would be a matter to be
addressed on appeal. Nothing in Byford is to the contrary.
Appellant also seems to suggest that the order entered on July
23, 2013, was not final because if he had had the opportunity to object, he
would have been able to establish another ground for the district court to
grant the motion. The opportunity to respond to a proposed order drafted
by a prevailing party "is important to ensure that the proposed order
drafted by the prevailing party accurately reflects the district court's
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findings." Byford, 123 Nev. at 69, 156 P.3d at 692. It is not an
opportunity to present new issues or arguments. Here, the objection filed
by appellant had nothing to do with whether the proposed order
accurately reflected the district court's findings. Instead, as the district
court concluded, the objection was a thinly veiled effort to convince the
district court to reconsider its decision to deny the motion to correct an
illegal sentence based on an issue that had not been raised in that motion.
Again, the fact that appellant wanted to raise a new issue after the
district court had entered its order resolving the motion does not alter the
finality of the district court's order or the time for filing a notice of appeal
from that order.
Finally, appellant argues that the notice of appeal was timely
filed because the objection to the findings of fact, conclusions of law, and
order denying the motion to correct an illegal sentence was the functional
equivalent of a motion in arrest of judgment. This argument is not
persuasive for two reasons.
First, the objection was not a motion in arrest of judgment. A
motion in arrest of judgment must "be made within 7 days after
determination of guilt or within such further time as the court may fix
during the 7-day period" and may be granted where "the indictment,
information or complaint does not charge an offense" or where "the court
was without jurisdiction of the offense charged." NRS 176.525. The
objection filed by appellant meets none of these requirements. It was filed
more than a decade after the determination of guilt and the time for filing
a motion in arrest of judgment was not extended within the statutory
period. More importantly, the objection had nothing to do with the
grounds provided by statute for a motion in arrest of judgment: it was
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about the sentence imposed, not whether the charging document charged
an offense or whether the district court had jurisdiction over the charged
offense. The objection was not presented to the district court as a motion
in arrest of judgment and its contents and timing do not suggest that it
was intended or could be construed as such a motion.
Second, even if the objection could be construed as a motion in
arrest of judgment, the objection did not toll the time for filing a notice of
appeal from the order denying the motion to correct an illegal sentence
and the order denying the objection was not appealable. A timely motion
in arrest of judgment only tolls the time for taking an appeal from the
judgment of conviction. NRAP 4(b)(3)(A) (providing that if a timely motion
in arrest of judgment has been filed, "an appeal from a judgment of
conviction may be taken within 30 days after the entry of an order denying
the motion"). As this appeal is not from a judgment of conviction, the
tolling provision in NRAP 4(b)(3)(A) does not apply. And while NRS
177.015(1)(b) provides for an appeal from "an order of the district court
granting. . . a motion in arrest of judgment," (emphasis added), it says
nothing about an order denying a motion in arrest of judgment. An order
denying a motion in arrest of judgment could only be reviewed on appeal
from a judgment of conviction as an intermediate order. NRS 177.045
Appellant has not demonstrated that he filed a timely notice of
appeal from the order denying his motion to correct an illegal sentence or
that the subsequent order denying his objection was appealable.
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Accordingly, we conclude that this court lacks jurisdiction over this
appeal. We therefore
ORDER this appeal DISMISSED.
, J.
po
Parraguirre
cc: Hon. Michelle Leavitt, District Judge
Law Office of Patricia M. Erickson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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