Logan (Yvonne) v. State

We conclude that the district court did not err in determining that appellant sought relief in the improper vehicle. Except for the remedy of direct appeal and those motions recognized to be incident to the proceedings, 1 a post-conviction petition for a writ of habeas corpus is the exclusive remedy available to challenge a judgment of conviction and sentence after entry of the judgment of conviction. See NRS 34.724(2)(a), (b). Restitution under NRS 176.033(1)(c) is a sentencing determination, and the amount may be challenged at sentencing and raised on direct appeal or in a post-conviction petition for a writ of habeas corpus. 2 See Martinez v. State, 115 Nev. 9, 12-13, 974 P.2d 133, 135 (1999); see also Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) overruled on other grounds by Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999) (recognizing that claims that could have been raised on direct appeal are

'This court has recognized that a motion to modify a sentence based upon a material mistake about the defendant's criminal record and a motion to correct an illegal sentence are incidental to the proceedings in the trial court. See Edwards a State, 112 Nev. 704, 707, 918 P.2d 321, 323-24 (1996). All other post-conviction challenges to the validity of the judgment of conviction must be raised in a post-conviction petition for a writ of habeas corpus. See id.; see also Harris v. State, 130 Adv. Op. No. 47, 329 P.3d 619, 628 (2014).

2 Appellant argues that the judgment of conviction was not final because the district court indicated that it would reconsider the restitution amount at a later hearing. Despite the district court's statements at sentencing to the contrary, the judgment of conviction was final as it set forth a fixed and certain restitution amount, and thus appellant's reliance upon this court's holdings in Slaate v. State, 129 Nev. Adv. Op. No. 23, 298 P.3d 1170 (2013), and Whitehead v. State, 128 Nev. Adv. Op. No. 24, 285 P.3d 1053 (2012), is misplaced. Appellant could have challenged the restitution amount and the district court's failure to conduct a hearing on restitution on direct appeal. Her failure to do so constitutes a waiver.

SUPREME COURT OF NEVADA 2 (0) (947A ex,

considered waived in subsequent proceedings). Appellant's claim seeking to correct the judgment of conviction fell outside the scope of both a motion to correct an illegal sentence and motion to modify sentence. See Edwards, 112 Nev. at 708, 918 P.2d at 324. Even construing the motion to correct judgment as a post-conviction petition for a writ of habeas corpus, appellant's claim fell outside the scope of claims permissible in a petition challenging a judgment of conviction arising from a guilty plea. See NRS 34.810(1)(a). Whether a judgment in a civil case satisfies restitution ordered in the criminal case cannot be litigated in a motion to correct judgment. 3 Accordingly, we ORDER the judgment of the district court AFFIRMED.

gar Parraguirre J.

as

Cherry

cc: Hon. Lidia Stiglich, District Judge Richard F. Cornell Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

Footnotes

[3] In light of this decision, we need not reach appellant's claim regarding res judicata. SUPREME COURT OF NEVADA 3 (0) I947A