Deere (Lloyd) v. State ( 2013 )

 on the idea that the latter motion was the functional equivalent of a
motion for a new tria1. 1 We disagree.
The order denying the post-conviction petition for a writ of
habeas corpus is appealable. NRS 34.575(1). The notice of appeal had to
be filed within 30 days after the court served written notice that the order
had been entered. Id. In this case, the order was entered on December 14,
2012, and the district court clerk served a notice of entry on appellant and
his counsel on December 21, 2012. The notice of appeal was not filed until
March 3, 2013, long after the 30-day appeal period expired.
Appellant implies that the appeal period was tolled under
NRAP 4(b)(3) because his motion to alter, amend, clarify and reconsider
was the functional equivalent of a motion for new trial. Based on the
same rationale, appellant asserts that the order denying that motion also
is appealable. See NRS 177.015(1)(b). Despite appellant's arguments, the
motion was not the equivalent of a motion for new trial. Although the
ultimate goal behind the motion, as with the post-conviction habeas
petition, undoubtedly was to obtain a new trial, the same can be said of
virtually all post-conviction challenges to a judgment of conviction. That
does not turn them into motions for a new trial.
NRAP 4(b)(3) is clearly referring to a motion filed pursuant to
NRS 176.515. Because appellant did not file his motion within 7 days
after the verdict, he can only assert that his motion was the equivalent of
a motion for new trial based on newly discovered evidence. See NRS
176.515(3), (4). Such an argument does not hold up. Appellant's motion
'Appellant does not appear to contest that the order denying his
motion for bail is not appealable.
SUPREME COURT
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does not assert newly discovered evidence that would render a different
result probable on retrial. See Sanborn v. State, 107 Nev. 399, 406, 812,
P.2d 1279, 1284-85 (1991) (listing factors relevant to motion for new trial
based on newly discovered evidence). Instead, the motion takes issue with
various findings and conclusions in the order denying the post-conviction
habeas petition. It is quintessentially a motion to alter, amend, or
reconsider that order. As such, it does not toll the time to file a notice of
appeal from the order denying the post-conviction habeas petition, see
Klein v. Warden, 118 Nev. 305, 309-10, 43 P.3d 1029, 1032-33 (2002), and
is not itself an appealable order, see Phelps, 111 Nev. 1021, 900 P.2d 344.
For these reasons, we lack jurisdiction and therefore
ORDER this appeal DISMISSED.
J.
J.
cc: Hon. Michael Villani, District Judge
Alan R. Johns
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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