BECKER v. STATE (2023)

ORDER DISMISSING APPEAL

In March 2019, appellant pleaded guilty to burglary with the provision that if she complied with the terms of probation and was honorably discharged, she could enter a plea to a lesser charge of conspiracy to commit theft. Appellant violated the terms of her probation several times, but the court declined to revoke her. In May 2022, the Division of Parole and Probation filed a petition for a dishonorable discharge from probation. After a hearing, the district court granted appellant an honorable discharge and ordered the State to file an amended information for the charge of conspiracy to commit theft. Instead of filing the amended information, the State filed a motion for reconsideration. On reconsideration the district court granted the State's motion, concluding that appellant should be dishonorably discharged from probation and remain convicted of burglary. The court failed to enter a written order or amended judgment of conviction. Appellant appealed.

Pursuant to its initial jurisdictional review, this court entered an order on November 15, 2022, directing the district court to enter a written amended judgment of conviction. Instead of an amended judgment of conviction, the district court entered an order “clarifying” its decision to grant the State's motion for reconsideration and concluding that appellant is not entitled to enter a plea to the lesser charge. Accordingly, because the court declined to allow appellant to enter a new plea, the court concluded that the original July 7, 2021, second amended judgment of conviction remains the final written judgment of conviction and no amended judgment of conviction is appropriate.

After consideration of the district court's order of clarification, this court entered an order to show cause on the ground that no statute or court rule permits an appeal from either an order discharging an appellant from probation or from an order granting a motion for reconsideration, and directing appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Castillo v. State, 106 Nev. 349, 352, 792 P.2d 1133, 1135 (1990) (this court has jurisdiction only when a specific statute or court rule provides for appeal).

Appellant has responded to this court's order and proposes that this court's decision in Locker v. State, 138 Nev. Adv. Op. 62, 516 P.3d 149 (2022), provides authority for tolling the time to appeal a conviction that may be modified based on a defendant's performance during probation. Appellant's argument is misplaced. In Locker this court held only that the statutes at issue in its facts mandated a deferred judgment of conviction. Here appellant has appealed from an order granting a motion for reconsideration. Appellant has failed to demonstrate that this court has jurisdiction to consider this appeal. Accordingly, this court

ORDERS this appeal DISMISSED.