Roseneau v. State

521 P.2d 369 | Nev. | 1974

OPINION

Per Curiam:

On September 25, 1968 appellant was charged by information with having committed a crime against nature on a person under the age of 18 years, the penalty for which is life with the possibility of parole after five years. Appellant plead not guilty to this charge. On February 28, 1969 the district court permitted the prosecution to file an amended information charging a crime against nature, the penalty for which is not less than one nor more than six years. Petitioner entered a plea of nolo contendere to this charge.

On May 12, 1969 the court granted appellant permission to change his nolo plea to that of not guilty. At the same time the State moved that the amended information be withdrawn and that the case proceed on the information originally filed on September 25, 1968. The court denied this motion, but granted the State “leave to file another Amended Information setting forth the facts contained in the original Information.” A second amended information charging the original offense was filed and the case proceeded to jury trial. The jury returned a verdict of guilty and the appellant was subsequently sentenced to the appropriate penalty for the crime charged. There was a direct appeal from this conviction which was affirmed in Roseneau v. State, 87 Nev. 463, 488 P.2d 917 (1971). The issue raised in the lower court was not presented in that appeal.

Appellant urges that the State violated the provisions of NRS 173.095¹ when it filed the second amended information upon which he was tried, and that he should have been sentenced to the penalty of one to six years provided for the crime charged in the first amended information.

Appellant failed to challenge the information as amended in a pretrial motion. NRS 174.105. Failure to present any defense or objection as provided in this section constitutes a waiver thereof unless the court is moved to grant relief for good cause shown. NRS 174.105(2). Appellant offers no reason for his failure to present this motion before trial.

Furthermore, appellant failed to raise this issue in a prior appeal to this court. In Craig v. Warden, 87 Nev. 39, 482 P.2d 325 (1971), this court affirmed the denial of the defendant’s application for post-conviction relief on the ground that the asserted error was not presented in his earlier appeal and no reason was given to explain the omission. See also Sanchez v. Warden, 89 Nev. 273, 510 P.2d 1362 (1973); NRS 177.375.

Because appellant failed to follow appropriate procedures, we decline to address the issue raised.

Affirmed.

1 The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.