Opinion
No. 69211
04-20-2016
BRIAN MARCUS WILSON, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a postconviction petition for a writ of habeas corpus. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
This appeal has been submitted for decision without oral argument. NRAP 34(f)(3). --------
The district court denied appellant Brian Wilson's September 3, 2015, petition, request for appointment of counsel, and request for an evidentiary hearing after finding that Wilson failed to show good cause to overcome the procedural bars to his petition and rebut the State's claim of laches.
On appeal, Wilson claims the district court erred.in finding that his petition was untimely filed. Wilson asserts his petition was filed within a year of entry of the amended judgment of conviction. And, Wilson argues the original judgment of conviction was not an appealable final judgment under Whitehead v. State, 128 Nev. 259, 285 P.3d 1053 (2012), and Slaatte v. State, 129 Nev. ___, 298 P.3d 1170 (2013), because it did not set the correct amount of restitution. We conclude that Wilson's reliance on these opinions is misplaced.
In Whitehead, the Nevada Supreme Court held "that a judgment of conviction that imposes a restitution obligation but does not specify its terms is not a final judgment" and therefore it does not trigger the one-year period for filing a habeas petition. 128 Nev. at 263, 285 P.3d at 1055. And, in Slaatte, the Nevada Supreme Court held that a "judgment of conviction [that] contemplates restitution in an uncertain amount . . . is not final therefore is not appealable." 129 Nev. at ___, 298 P.3d at 1171.
Here, unlike in Whitehead and Slaatte, the original judgment of conviction sets forth Wilson's restitution obligation in certain terms and specific dollar amounts; therefore, it constituted an appealable final judgment and triggered the one-year statutory period for filing a postconviction habeas petition. See NRS 34,726(1); NRS 176.105(1). We conclude the district court properly rejected Wilson's good cause argument and found his petition was procedurally barred. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Jessie Elizabeth Walsh, District Judge
Brian Marcus Wilson
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk