Sylvestri (Jeraldine) v. State ( 2013 )

 agree. Ordering Sylvestri to pay $750 a month while at the same time
ordering that she spend twenty-four of those months in jail is irrational. 1
See Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005) ("An
abuse of discretion occurs if the district court's decision is arbitrary or
capricious or if it exceeds the bounds of law or reason." (internal
quotations omitted)). This condition of probation must be reversed.
Sylvestri also contends that the district court abused its
discretion by requiring that she complete 40 hours of community service
per month as a condition of probation. We agree that this condition
violates NRS 176.087(4)(a) because it fails to fix the total period of
community service. 2 We also agree that the district court abused its
discretion by imposing this condition without making an exception for the
period of time Sylvestri was ordered to be incarcerated. This condition of
probation must also be reversed. 3
1 We note that during the sentencing hearing, the district court
agreed with the victim's attorney that no restitution payments would be
made during the term of incarceration. It therefore appears that the
district court may have intended, but inadvertently omitted, to include
language in this condition of probation relieving Sylvestri of her obligation
to pay restitution while incarcerated.
2 Because the district court failed to fix the total period of community
service imposed, we need not reach Sylvestri's contention that the district
court erred by imposing a period exceeding the statutory maximum. See
NRS 176.087(4)(a)(3).
3 We conclude that Sylvestri is estopped from challenging the
conditions of her probation that require her to pay $20,000 in restitution
on the date of sentencing and stipulate to and authorize the entry of a civil
judgment against her. See Carter v. State, 121 Nev. 759, 769, 121 P.3d
592, 599 (2005) ("A party who participates in an alleged error is estopped
from raising any objection on appeal."). And Sylvestri's remaining
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Having considered Sylvestri's contentions and concluded that
she is only entitled to the relief stated herein, we
ORDER the judgment of conviction AFFIRMED IN PART
AND REVERSED IN PART AND REMAND this matter to the district
court for proceedings consistent with this order.
Gibbons
.1D.CD'U-61 ' J
Douglas Saitta
cc: Hon. Kimberly A. Wanker, District Judge
Paul E. Quade
Attorney General/Carson City
Mineral County District Attorney
Mineral County Clerk
...continued
challenges to the conditions of her probation lack merit. See NRS
176A.400(1) (allowing the district court to "fix the terms and conditions" of
probation, including those identified in the statute, "without limitation");
NRS 176A.400(1)(c)(4) (allowing the district court to impose conditions of
probation "[p]rohibiting the probationer from engaging in specific conduct
that may be harmful to the probationer's own health, safety or welfare");
NRS 176A.500(2)-(3) (district court may issue an arrest warrant or
probation officer may arrest a probationer who has violated the conditions
of probation); NRS 209.432 (defining an "offender" as used in NRS
209.4465); Haney v. State, 124 Nev. 408, 414 n.21, 185 P.3d 350, 354 n.21
(2008); Creps v. State, 94 Nev. 351, 360, 581 P.2d 842, 848 (1978)
(legislative intent is the primary focus of an inquiry into the propriety of a
condition of probation).
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