Hernandez (Marcos) v. State ( 2022 )


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  •                            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.
    /  ...ke-- - -1,-..-f-
    --,.. ..  --- — - )1 /4   , J.
    Hariiesty
    .   .                                                        J
    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
    2
    

Document Info

Docket Number: 83811

Filed Date: 2/18/2022

Precedential Status: Precedential

Modified Date: 2/21/2022