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 2014-09

Trujillo (Ruben) v. State ( 2014 )


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  •                             Second, Trujillo contends that the imposition of jail time as a
condition of probation after the rescinding of his diversion program
constitutes cruel and unusual punishment. We disagree.
This court will not disturb a district court's sentencing
determination absent an abuse of discretion.     Parrish v. State,
    116 Nev. 982
    , 989,
    12 P.3d 953
    , 957 (2000). After the revocation of his probationary
term and the rescinding of his diversion program, the district court
sentenced Trujillo to a suspended prison term of 12-36 months and, as a
condition of probation, ordered him to serve 12 months in jail Trujillo's
sentence falls within the parameters provided by the relevant statutes, see
NRS 193.130(2)(e); NRS 453.336(2)(a); see also Igbinovia v. State,
    111 Nev. 699
    , 707,
    895 P.2d 1304
    , 1309 (1995), and the sentence imposed is not so
unreasonably disproportionate to the gravity of the offense as to shock the
conscience, see Culverson v. State,
    95 Nev. 433
    , 435,
    596 P.2d 220
    , 221-22
(1979); see also Harmelin v. Michigan,
    501 U.S. 957
    , 1000-01 (1991)
(plurality opinion). Additionally, Trujillo has not alleged that the district
court relied solely on impalpable or highly suspect evidence or that the
sentencing statutes are unconstitutional.    See Chavez v. State,
    125 Nev. 328
    , 347-48,
    213 P.3d 476
    , 489-90 (2009). We conclude that the district
court did not abuse its discretion at sentencing by imposing jail time as a
condition of probation.
Third, Trujillo contends that the district court erred by
sentencing him to a fixed probationary term of 60 months. We agree. The
district court failed to consider the period Trujillo spent on probation for
the instant offense prior to the ultimate sentencing hearing when it
imposed an additional 60-month probationary term in violation of NRS
176A.500(1)(b) (providing that "Nile period of probation or suspension of a
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sentence" must not exceed five years); Wicker v. State,
    111 Nev. 43
    , 46-47,
    888 P.2d 918
    , 919-20 (1995). Further, the district court violated NRS
176A.500(7) by failing to provide Trujillo with credit for time served for
the period spent successfully completing the drug court program.
Therefore, we conclude that the district court erred by imposing a 60-
month probationary term and remand this case for the correction of the
illegal sentence. See NRS 176.555. Accordingly, we
ORDER the judgment of conviction AFFIRMED IN PART
AND REMAND this matter to the district court for proceedings consistent
with this order.
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Hardesty
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, J.                   1
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Douglas                                   Cherry
cc: Hon. Alvin R. Kacin, District Judge
Elko County Public Defender
Attorney General/Carson City
Elko County District Attorney
Elko County Clerk
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