Opinion
86983-COA
05-31-2024
FRANCISCO SUAREZ ARCIBAL, A/K/A FRANCISCO SUAREZ ARCIBAL, V, Appellant, v. THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
ORDER OF REVERSAL AND REMAND
Gibbons, C. J.
Francisco Suarez Arcibal appeals from a district court order denying a petition to establish factual innocence. Eighth Judicial District Court, Clark County; Tierra Danielle Jones, Judge.
First, Arcibal contends the district court erred by denying his "Preemptory Challenge of Judge." Arcibal filed this pleading on May 17, 2023, and the district court denied it on June 7, 2023-prior to the filing of Arcibal's petition to establish factual innocence on June 14, 2023. Thus, the denial of Arcibal's pleading was not an interlocutory ruling this court can consider from an appeal of the district court's order denying Arcibal's petition to establish factual innocence. Therefore, we conclude Arcibal is not entitled to relief based on this claim.
We note the supreme court has already dismissed Arcibal's appeal from the denial of his peremptory challenge of judge. See Arcibal v State, No. 86797, 2023 WL 4442273 (Nev. July 10, 2023) (Order Dismissing Appeal).
Second, Arcibal raises contentions that challenge the district court's denial of his petition to establish factual innocence. To address those contentions, we must first address a jurisdictional question. The district court denied the petition on the grounds that Arcibal's then-pending appeals of district court orders denying the "Preemptory Challenge of Judge" and a motion for modification of sentence divested the district court of jurisdiction. See Arcibal v State, No. 86797, 2023 WL 4442273 (Nev. July 10, 2023) (Order Dismissing Appeal); Arcibal v State, No. 86506-COA, 2023 WL 6543192 (Nev. Ct. App. Oct. 6, 2023) (Order of Affirmance). Arcibal's appeals from these prior orders did not divest the district court of jurisdiction to consider a petition to establish factual innocence. See NRS 34.960(1) (providing that a person convicted of a felony may petition for a hearing to establish factual innocence based on newly discovered evidence "[a]t any time after the expiration of the period during which a motion for a new trial based on newly discovered evidence may be made pursuant to NRS 176.515"); see also Foster v. Dingwall, 126 Nev. 49, 52-53, 228 P.3d 453, 454-55 (2010) (recognizing that a timely notice of appeal does not divest the district court of jurisdiction over matters independent from the appealed order). Therefore, we conclude the district court erred by denying Arcibal's petition on jurisdictional grounds, and we reverse and remand this matter for the district court to consider Arcibal's petition. Accordingly, we
ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.
Bulla, J., Westbrook, J.
Hon. Tierra Danielle Jones, District Judge