We conclude that the district court did not err in determining
that appellant sought relief in the improper vehicle. Except for the
remedy of direct appeal and those motions recognized to be incident to the
proceedings, 1 a post-conviction petition for a writ of habeas corpus is the
exclusive remedy available to challenge a judgment of conviction and
sentence after entry of the judgment of conviction. See NRS 34.724(2)(a),
(b). Restitution under NRS 176.033(1)(c) is a sentencing determination,
and the amount may be challenged at sentencing and raised on direct
appeal or in a post-conviction petition for a writ of habeas corpus. 2 See
Martinez v. State, 115 Nev. 9, 12-13, 974 P.2d 133, 135 (1999); see also
Franklin v. State, 110 Nev. 750, 752, 877 P.2d 1058, 1059 (1994) overruled
on other grounds by Thomas v. State, 115 Nev. 148, 979 P.2d 222 (1999)
(recognizing that claims that could have been raised on direct appeal are
'This court has recognized that a motion to modify a sentence based
upon a material mistake about the defendant's criminal record and a
motion to correct an illegal sentence are incidental to the proceedings in
the trial court. See Edwards a State, 112 Nev. 704, 707, 918 P.2d 321,
323-24 (1996). All other post-conviction challenges to the validity of the
judgment of conviction must be raised in a post-conviction petition for a
writ of habeas corpus. See id.; see also Harris v. State, 130 Adv. Op. No.
47, 329 P.3d 619, 628 (2014).
2 Appellant argues that the judgment of conviction was not final
because the district court indicated that it would reconsider the restitution
amount at a later hearing. Despite the district court's statements at
sentencing to the contrary, the judgment of conviction was final as it set
forth a fixed and certain restitution amount, and thus appellant's reliance
upon this court's holdings in Slaate v. State, 129 Nev. Adv. Op. No. 23, 298
P.3d 1170 (2013), and Whitehead v. State, 128 Nev. Adv. Op. No. 24, 285
P.3d 1053 (2012), is misplaced. Appellant could have challenged the
restitution amount and the district court's failure to conduct a hearing on
restitution on direct appeal. Her failure to do so constitutes a waiver.
SUPREME COURT
OF
NEVADA
2
(0) (947A ex,
considered waived in subsequent proceedings). Appellant's claim seeking
to correct the judgment of conviction fell outside the scope of both a motion
to correct an illegal sentence and motion to modify sentence. See
Edwards, 112 Nev. at 708, 918 P.2d at 324. Even construing the motion to
correct judgment as a post-conviction petition for a writ of habeas corpus,
appellant's claim fell outside the scope of claims permissible in a petition
challenging a judgment of conviction arising from a guilty plea. See NRS
34.810(1)(a). Whether a judgment in a civil case satisfies restitution
ordered in the criminal case cannot be litigated in a motion to correct
judgment. 3 Accordingly, we
ORDER the judgment of the district court AFFIRMED.
gar
Parraguirre
J.
as
Cherry
cc: Hon. Lidia Stiglich, District Judge
Richard F. Cornell
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
3 In
light of this decision, we need not reach appellant's claim
regarding res judicata.
SUPREME COURT
OF
NEVADA
3
(0) I947A