How to modify a criminal sentence in Nevada

Posted by Neil Shouse | Oct 17, 2018 | 0 Comments


COVID-19 UPDATE: Inmates may be able to get their sentences modified due to coronavirus being so easily contagious in jails and prisons. Vulnerable inmates with asthma or diabetes or who are elderly are particularly at risk. Judges may agree to release certain inmates from custody early, especially if their sentence ends soon. Or else judges may agree to allow certain inmates to serve the sentence under house arrest in quarantine. The inmate's criminal defense attorney can file a motion to modify the sentence to ask the judge for early release or home confinement.

Depending on the circumstances of a criminal case in Nevada, there are three main ways to try to persuade a judge to modify the defendant's sentence:

  1. A motion to modify the sentence;
  2. A Nevada appeal of the sentence; or
  3. A Nevada petition for writ of habeas corpus

Learn more about post-conviction relief in Nevada.

1. A motion to modify the sentence

Defendants -- or their attorneys -- can file a "motion to modify the sentence" with the same court that imposed the punishment if the punishment was illegal.[1] Five examples of illegal sentences may include:

  1. The penalties are ambiguous (such as regarding how long they are, when they begin, etc.);
  2. The penalties differ from the judge's orders;
  3. The penalties fall outside the criminal statute's sentencing range;
  4. The court that handed down the punishment did not have jurisdiction (authority) to impose sentence; or
  5. The sentence was calculated incorrectly

Note there is no time limit to file a "motion to modify the sentence" based on illegality. Since an illegal sentence is such a fundamental mistake, courts may correct it at any time either on their own motion or at the request of a party.[2]

2. An appeal of the sentence

After defendants are convicted at trial, they -- or their attorneys -- can file an appeal with a higher court to argue that the sentence was excessive. For instance, a person who was sentenced in Las Vegas Justice Court could appeal to the Eighth Judicial District Court (which serves Clark County). Or a person who was sentenced in the Eighth Judicial District Court could appeal to the Nevada Supreme Court (note that the case may be assigned to the Nevada Court of Appeals).

In general, defendants sentenced in district court have 30 days from the case's entry of judgment to file a "notice of appeal." Then once the court prepares the "record" (which includes all the transcripts and proceedings), the defendant has 120 days to file an appellate brief, explaining why the sentence was excessive.

The prosecution will then file an opposition, and the defendant can file a reply to that opposition. Ultimately, the appellate court may hold "oral arguments" on the matter before deciding whether to "affirm" the sentence or "remand" the case down to the trial level for a less excessive sentence.

3. A writ of habeas corpus

Criminal defendants may challenge the validity of their sentence by filing a writ of habeas corpus with the Nevada Supreme Court.[4] There are nine main grounds for defendants ("petitioners") to file a writ of habeas corpus:

  1. The court exceeded its jurisdiction;
  2. The sentence may have been lawful at the time it was imposed, but circumstances changed that entitles the defendant to be released;
  3. The sentencing is void due to defective legal processes;
  4. The sentencing is void due to illegality;
  5. The person having the custody of the petitioner is not the person allowed by law to detain the petitioner;
  6. The sentence was not authorized by any judgment, order, decree, or law;
  7. The petitioner was committed without probable cause;
  8. The petitioner was committed under an unconstitutional law (or a law that was unconstitutionally applied); or
  9. The petitioner's constitutional rights were denied

People can also file a petition for a writ of habeas corpus for being wrongfully denied bail prior to conviction.[5]

In general, there is a year deadline after the judgment of conviction -- or the appeal -- to file the writ. But there may be valid grounds to file later.[6]

Legal References

  1. NRS 176.555  Correction of illegal sentence.  The court may correct an illegal sentence at any time.
  2. Passanisi v. State, 108 Nev. 318, 831 P.2d 1371 (1992)("The district court has inherent authority to correct an illegal sentence at any time.").
  3. Nevada Rules of Appellate Procedure Rules 4 and 31.
  4. Harris v. State, 130 Nev. Adv. Rep. 47, 329 P.3d 619 (June 12, 2014)("Post-conviction petition for a writ of habeas corpus is the exclusive remedy for challenging the validity of a conviction or sentence aside from direct review of a judgment of conviction on appeal and "remedies which are incident to the proceedings in the trial court.").
  5. NRS 34.735.
  6. NRS 34.724.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.


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