Lovie v. State
Lovie v. State
Opinion of the Court
OPINION
This is an appeal from a judgment of conviction pursuaiit to a guilty plea of one count of third offense driving while intoxicated.
Appellant was stopped for speeding on August 2, 1991, in Elko County, Nevada. He smelled of alcohol and failed several field sobriety tests. A subsequent breath test revealed a blood alcohol level of between 0.16 and 0.14 percent. Appellant agreed to plead
Appellant argues that under the plain language of NRS 174.065(3), the district court erred by not affording him an opportunity to withdraw his plea.
NRS 174.065(3) (emphasis added) reads in pertinent part:
On a plea of guilty . . . the defendant and the district attorney may agree to recommend an appropriate punishment. The court may defer its decision upon the recommendation until it has considered the presentence report. If the court accepts the recommendation, it shall impose the specified punishment or a lesser punishment. If the court rejects the recommendation, the defendant may withdraw the plea.
The above subpart took effect October 1, 1991. See 1991 Nev. Stats. ch. 265, §§ 1, 4, at 651-52. Appellant was sentenced on October 16, 1991. Thus, the newly enacted statute was in effect at the time of appellant’s sentencing hearing.
The right established by the final sentence of NRS 174.065(3) is designed to facilitate the withdrawal of a guilty plea when the district court imposes a punishment greater than that contemplated by the plea agreement. For this right to be meaningful, the district court must afford the defendant an opportunity to exercise it. Other jurisdictions have held that under this type of statute, a defendant must be afforded the opportunity to withdraw his guilty plea if the motion to withdraw is made within a reasonable time. See, e.g., State v. De Nistor, 694 P.2d 237 (Ariz. 1985); State v. Huttinger, 595 P.2d 363 (Mont. 1979). Appellant moved to withdraw his guilty plea one day after the sentencing hearing. We conclude that appellant’s motion to withdraw his plea was filed within a reasonable time, and that the district court failed to afford appellant a meaningful opportunity to withdraw his plea. We hold, therefore, that the district court erred in denying appellant’s motion to withdraw his guilty plea.
For the reasons set forth above, we reverse the order of the
The judgment of conviction recites that appellant is guilty of one count of driving under the influence and one count of third offense driving under the influence. The judgment is duplicative and therefore erroneous. The district court, however, imposed sentence only for the count of third offense driving under the influence. Thus, appellant has not been prejudiced by the error.
Appellant’s argument is unopposed by the state, which concedes error and argues that the district court should have granted appellant’s motion.
Because we find this issue dispositive, we decline to address appellant’s other arguments.
Reference
- Full Case Name
- ROBERT VERNON LOVIE v. THE STATE OF NEVADA
- Cited By
- 11 cases
- Status
- Published