Opinion
No. 81176-COA
12-18-2020
EVINE D. BATTLE, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
Evine D. Battle appeals from a district court order denying a motion to modify and/or correct an illegal sentence filed on February 20, 2020. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.
Battle claimed that his sentence for carrying a concealed firearm without a permit in violation of NRS 202.350(1)(d)(3) was illegal because this was his first offense for carrying a concealed firearm without a permit and first offenses are supposed to be punished as gross misdemeanors pursuant to NRS 202.350(2)(a)(1).
NRS 176.555 states a district "court may correct an illegal sentence at any time." A motion to correct an illegal sentence, however, may only challenge the facial legality of the sentence: either the district court was without jurisdiction to impose a sentence or the sentence was imposed in excess of the statutory maximum, Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321, 324 (1996). "A motion to correct an illegal sentence presupposes a valid conviction and may not, therefore, be used to challenge alleged errors in proceedings that occur prior to the imposition of sentence." Id. (internal quotation marks omitted).
Battle's motion did not implicate the jurisdiction of the district court, see Nev. Const. art. 6, § 6(1); NRS 171.010, and his 24- to 60-month prison sentence is facially legal, see NRS 193.130(2)(c); NRS 202.350(1)(d)(3); NRS 202.350(2)(b). Therefore, we conclude the district court did not err by denying his motion, and we
ORDER the judgment of the district court AFFIRMED.
We note the plain language of NRS 202.350(2)(a) excludes offenses committed in violation of NRS 202.350(1)(d)(3) (carrying a concealed firearm without a permit) from being punished as gross misdemeanors, and we deny Battle's request for an evidentiary hearing.
We deny Battle's "[m]otion to stay the proceedings and or to continue his case for the next six months."
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Douglas W. Herndon, District Judge
Evine D. Battle
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk