Overturning a Conviction in Nevada

There are three basic methods for having a conviction overturned in Nevada: a Motion for a New Trial, a Notice of Appeal, and a Petition for Writ of Habeas Corpus. These are three very different documents, and some convicted defendants find themselves filing two or even all three of them at various times.

Overturning a conviction in Nevada

Overturning Your Conviction in Nevada


By understanding the key differences between each option, a person who has been convicted of a crime in Nevada may be able to choose the best way to seek relief from an old criminal conviction.

Motion for New Trial

A person who has been found guilty by a judge or jury has the ability to file a Motion for a New Trial within 7 days if the conviction is not supported by the law, Nevada Revised Statute §176.515.

Alternatively, a Motion for a New Trial may be brought if the individual discovers new evidence following the conviction that could not have been discovered in time to be produced at trial and that evidence tends to exonerate the person. This is not based solely on whether the information was available, but also whether the information could have been found using reasonable efforts. A motion on these grounds must be filed within two years after the trial ends.

Motion Hearing

The motion hearing is not the new trial. At this proceeding, the judge merely decides whether mistakes were made at the trial that justify vacating the verdict or judgment and having a new trial. Alternatively, the judge will consider whether the newly discovered evidence should be shown to the jury in order to ensure a fair trial. Only these issues are discussed. That means that it is not necessary to have all witnesses attend the motion hearing or bring all evidence introduced in the original trial.

Potential Outcomes

If the motion is granted, then the conviction is vacated, and a new trial is usually scheduled. However, the judge has the ability to dismiss the charges if the evidence supports it. The prosecutor also has the ability to request dismissal if they would prefer not to retry the case. If the Motion for New Trial is denied, the individual has the ability to appeal that denial.

Notice of Appeal

An appeal is the process of asking a higher court, also known as the appellate court, to review the trial court's decision. In Nevada, municipal court or justice court convictions are appealed to the local District Court. District court convictions are appealed directly to the Nevada Supreme Court, without going through an intermediary Court of Appeals. The Supreme Court does not conduct a new trial or determine whether the verdict was fair.

Court Review

What the Court does is review the evidence to determine whether legal mistakes occurred during the trial that would make it unlawful for the conviction to stand. The Court has the ability to vacate the conviction, but can also send it back to the District Court so that a new trial can be held that is consistent with the Court's decision. If the second trial is lost, the accused has the ability to file a second Notice of Appeal or pursue other remedies discussed on this page.

Common reasons that a person might appeal a conviction are:

  1. The guilty verdict was not supported by the evidence presented
  2. The judge allowed evidence to be admitted that should have been suppressed and that evidence unfairly prejudiced the jury
  3. Defense counsel was constitutionally ineffective
  4. The judge imposed a sentence that constitutes cruel and unusual punishment within the meaning of the Eighth Amendment

Starting an Appeal

To start an appeal, the defendant files a Notice of Appeal. At that point, he becomes known as the Appellant. In state court, the Notice of Appeal must be filed within 30 days after the judgment is entered. Nev. R. App. P. 4. This document does not summarize the arguments or require extensive briefing. It simply puts the state on notice which rulings or decisions are being appealed and lets the clerk of the court know to forward the record to the appellate court. The appellant later files with the trial court clerk any transcripts that he wants forwarded as part of the record.

Appellate Brief

While waiting for the file to be transferred to the appellate court, the appellant typically begins work on the Appellate Brief. This is the document that sets forth all of the mistakes that were made in the trial court and asks the appellate court to reverse or vacate the judgment. It also summarizes the relevant facts and cites supporting statutes or case law. This brief is usually filed within 120 days after the Notice of Appeal is filed.

Appellee's Brief

The prosecutor has the ability to file an opposition, called the Appellee's Brief. If there are new arguments in this document that were not originally included in the Appellant's Brief, the appellant may be permitted to file a Reply Brief. The Reply Brief is typically short and does not rehash arguments stated in the original brief.

After all briefs are filed, the parties may be asked to give oral arguments. These arguments give the judges the opportunity to ask questions about the arguments raised in the briefs. Unlike a trial, the decision is not given right away. The judges review the information and issue a written opinion weeks or sometimes months later. A person who has been sentenced to jail remains in custody during this waiting period

Petitioning for a Writ of Habeas Corpus

If neither a Motion for New Trial nor an Appeal is successful, or if new evidence is uncovered after the time for filing those items has expired, a person who is being held in prison may be able to file a Petition for a Writ of Habeas Corpus. This is a notice to the judge that a prisoner is being unlawfully detained and a request that the person be released. Nev. Rev. Stat., Section 34.360.

In most cases, a writ will not be granted if the prisoner has not yet appealed. However, a person may raise issues in a writ of habeas corpus that were not raised on appeal, such as complaints regarding prison conditions.

A Petition for writ of habeas corpus must be verified by either the prisoner or his lawyer. Nev. Rev. Stat., Section 34.370. This means that there must be a separate section, signed under penalty of perjury, swearing that the facts contained within the petition are true and correct to the best of the person's knowledge.

The state has the ability to file a response to the Petition, and the court will usually schedule a hearing. Writs are considered extraordinary remedies, so the waiting period is usually shorter than for an appeal. If the writ is granted, the prisoner will be released immediately.

When the judge appointed a trial counsel, it may be possible for the same public defender to assist with post-conviction remedies. In some cases, a person who paid for a lawyer at trial may also be able to request to have a lawyer appointed following conviction. A local attorney may also be able to assist with preparing and arguing documents in an effort to overturn the conviction.

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*The Law photo was cropped from its original proportions.