Hernandez (Marcos) v. State

IN THE SUPREME COURT OF THE STATE OF NEVADA
MARCOS RAMOS HERNANDEZ, No. 83811
Appellant,
vs.
THE STATE OF NEVADA, FILED
Res ondent.
FEB 1 8 2022
ORDER DISMISSING APPEAL
This is a direct appeal from a judgment of conviction. Eighth
Judicial District Court, Clark County; Tara D. Clark Newberry, Judge.
Preliminary review of this appeal revealed a potential
jurisdictional defect. The district court entered the judgment of conviction
on October 4, 2021. Thus, appellant's notice of appeal was due to be filed in
the district court by November 3, 2021. See NRAP 4(b)(1)(A) (providing that
a notice of appeal must generally "be filed with the district court clerk
within 30 days after the entry of the judgment or order being appealed").
However, the notice of appeal was not filed in the district court until
November 16, 2021, 13 days after expiration of the 30-day appeal period.
Appellant dated his notice of appeal November 2, 2021.
Pursuant to NRAP 4(d), if appellant delivered his notice of appeal to a
prison official for mailing on or before November 3, 2021, and utilized the
notice-of-appeal log or other system designed for legal mail, his notice of
appeal would be deemed timely filed. Because this court could not
determine from the documents before it whether the notice of appeal should
be deemed timely, this court ordered the attorney general to obtain and
transmit to the clerk of this court certified copies of the notice of appeal log
SUPREME COURT
OF
NEVADA
(0) 1947A 40. osci cf3
maintained at the prison indicating the actual date upon which appellant
delivered to a prison official his notice of appeal.
The attorney general has now provided this court with a
response, a copy of the notice-of-appeal log, and an affidavit from the law
library supervisor at High Desert State Prison. These documents indicate
that appellant did not use the notice of appeal log in October or November
2021. Further, the documents indicate that High Desert State Prison does
not maintain any other incoming or outgoing mail logs. Accordingly, the
November 16, 2021, date controls and appellant's notice of appeal was
untimely filed and this court lacks jurisdiction to consider this appeal. See
Lozada v. State, 110 Nev. 349, 352, 871 P.2d 944, 946 (1994) ("[A]n untimely
notice of appeal fails to vest jurisdiction in this court."). We therefore
ORDER this appeal DISMISSED.
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Hariiesty
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Stiglich Herndon
cc: Hon. Tara D. Clark Newberry, District Judge
Marcos Ramos Hernandez
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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