Kimball v. State

Full title: RICHARD WASDEN KIMBALL, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT

Court: Supreme Court of Nevada

Date published: Mar 29, 1984

100 Nev. 190 (Nev. 1984)

678 P.2d 675

Opinion

No. 14482

March 29, 1984

Appeal from judgment of conviction of battery, First Judicial District Court, Carson City; Michael R. Griffin, Judge.

Powell Lambrose, Carson City, for Appellant. Brian McKay, Attorney General, Carson City; William A. Maddox, District Attorney, and Charles P. Cockerill, Deputy District Attorney, Carson City, for Respondent.

OPINION

Per Curiam:[fn1] [fn1] This appeal was previously dismissed on the merits in an unpublished order of this court. Upon the request of the district court, we have determined that our decision should be issued in a published opinion. Accordingly, we hereby issue this opinion in place of our Order Dismissing Appeal filed January 25, 1984.See Yosemite Ins. v. State Farm Mut., 98 Nev. 460, 461 n. 1,653 P.2d 149 (1982).

This is an appeal from a judgment of conviction of misdemeanor battery, as a lesser-included offense of battery with substantial bodily harm, a gross misdemeanor. Appellant contends that his judgment of conviction is void because the district court lacks jurisdiction to convict and sentence on a misdemeanor, notwithstanding the fact that the misdemeanor is a lesser-included offense of the initially charged gross misdemeanor. This contention is without merit.

The original jurisdiction of the district court is in fact limited to felonies and gross misdemeanors, see Nev. Const. art. 6, § 6, and original jurisdiction over misdemeanors generally lies with the justice's court, see NRS 4.370(3). Once a district court properly obtains original jurisdiction over a defendant by virtue of a felony or gross misdemeanor charge, however, its jurisdiction is maintained to convict and sentence on any lesser-included offense, even if that offense is a misdemeanor. See People v. Spreckels, 270 P.2d 513 (Cal.Ct.App. 1954); cf. Dicus v. District Court, 97 Nev. 273, 625 P.2d 1175 (1981) (adult court, once it properly obtained original jurisdiction from juvenile court by virtue of attempted murder charge, retained jurisdiction to convict and sentence on lesser-included offense, even when lesser-included offense, if charged alone at the outset of the proceedings, would not have removed case from juvenile court jurisdiction).

The judgment of conviction is affirmed.