Opinion
No. 10043
August 9, 1978
Appeal from judgment of conviction, Second Judicial District Court, Washoe County; John E. Gabrielli, Judge.
William Dunseath, Public Defender, Washoe County; and Ernest Charles Turner, in pro per, for Appellant.
Larry Hicks, District Attorney, and John L. Conner, Deputy District Attorney, Washoe County, for Respondent.
OPINION
Appellant's counsel has filed a "no-merit" brief on behalf of his client, see Sanchez v. State, 85 Nev. 95, 450 P.2d 793 (1969), claiming appellant's guilty plea was not voluntary, and the prosecutor failed to abide by the terms of a plea bargain. These issues need not be decided. Appellant, in a separate in pro per application, has raised an issue which is dispositive and mandates reversal, to wit: his prosecution in Nevada after conviction in another sovereignty for the same crime was statutorily barred.
Prior to any proceeding in Nevada, appellant was convicted in Texas on unrelated charges. The federal government then brought appellant to Nevada to answer charges for bank robbery. The federal district court in Reno accepted appellant's guilty plea and sentenced him to another prison term. Thereafter, on application of the Washoe County prosecutor, the justices' court issued a writ of habeas corpus ad prosequendum, to obtain appellant from federal custody and prosecute him for armed robbery in Nevada. Appellant pleaded guilty in district court, and was sentenced to consecutive ten-year terms for robbery, and use of a deadly weapon.
We need not decide whether the justices' court had authority to issue such a writ. Compare Nev. Const. art. 6, § 8; with Nev. Const. art. 6, § 4; art. 6, § 6; see also NRS 34.380(1); cf. R. v. Whitmer, In and For Salt Lake County, 515 P.2d 617 (Utah 1973); State v. Lackey, 257 P.2d 849 (Okla.Crim. 1953).
NRS 171.070 provides: "When an act charged as a public offense is within the jurisdiction of another state, territory or country, as well as of this state, a conviction or acquittal thereof in the former is a bar to the prosecution or indictment therefor in this state." Under this section, a defendant may not be prosecuted after a prior conviction or acquittal "in another jurisdiction if all the acts constituting the offense in this state were necessary to prove the offense in the prior prosecution." People v. Belcher, 520 P.2d 385, 390-391 (Cal. 1974); cf. Cal.Pen. Code § 656 (West 1970); Model Pen. Code § 1.11, Tentative Draft No. 5 (1956).
Due to the statutory prohibition we therefore need not decide whether under Nevada Const. art. 1, § 8, such multiple prosecution for the same offense violates double jeopardy principles. Compare Bartkus v. Illinois, 359 U.S. 121 (1959); [ and] Crane v. State, 92 Nev. 593, 555 P.2d 845 (1976); with Commonwealth v. Mills, 286 A.2d 638 (Pa. 1971); [ and] People v. Cooper, 247 N.W.2d 866 (Mich. 1976); [ and] State v. Hogg, 385 A.2d 844, 23 Cr. L. 2161 (N.H. 1978).
Accordingly, the judgment is reversed.