This article is not intended as advice for your specific matter. Rather, it is a general article about Nevada law. If you have questions about your particular case, please call Mueller, Hinds and Associates, Chtd. immediately at (702) 940-1234. This information is valid as of August 25, 2017.
What is a felony in Nevada?
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What is a felony? A paraphrased version of the Merriam-Webster definition of a felony is a grave crime such as murder or rape as defined by statute or length of punishment and as differentiated from a misdemeanor. Historically, a felony was punishable by death, but today it means that the crime can be punished by a minimum of 1 year in prison. An odd exception to this is an “aggravated felony” which is a term used in federal immigration law to define state crimes that constitute mandatory deportation offenses.
In Nevada all felonies are defined by statute, categorized and carry at least on year in prison. Section 193.130 of the Nevada Revised Statutes sets forth the punishments for the various categories of felonies.
What is the 40% rule for a felony in Nevada?
Subsection 1 of section 193.130 of the Nevada Revised Statutes requires that all sentences for felonies be sentenced to a minimum and a maximum sentence where the minimum does not exceed 40% of the maximum. What does that mean? It means that if you're being sentenced for a felony, say, a felony that carries from 1 to 5 years in prison, the judge can sentence you to a range within that range of 1-5 where the bottom end of the range will be your parole eligibility date and your top number will be your sentence expiration date. So, if you're facing a 1-5, the judge can sentence you to 12 months to 30 months, making you eligible for parole after 12 months and the expiration of your sentence after 30 months. Or the judge could sentence you to 2 to 5 years in prison. However, the judge could not sentence you to 3 to 5 years in prison because that would violate the 40% rule due to 3 being greater than 40% of 5. Standard sentence configurations for this kind of sentence range include 12-30 months, 12-36 months, 19-48 months and 24-60 months (2-5 years).
Are there any exceptions to the 40% felony rule in Nevada for a felony?
Oddly enough, there appears to be one exception to the 40% rule. In Breault v. State, 116 Nev. 311 (2000), the defendant plead guilty via a guilty plea agreement with the State of Nevada to a term of 42 to 70 months and a consecutive 12 to 20 months. See id. at 312. The Nevada Supreme Court agreed that the sentence did not comply with the 40% felony rule, but found that because the defendant entered the guilty plea knowingly and voluntarily and waived any defects, he could not “manipulate the judicial system by subsequently insisting that the sentence conform to the fort-percent provision.” See id. at 314.
What are the felony categories in Nevada?
Subsection 2 of section 193.130 of the Nevada Revised Statutes provides the five categories of felonies – A, B, C, D and E. A category A felony carries a sentenced provided by the specific statute for the crime and can be from 10 to 25 years in prison or up to the death penalty. A category B felony carries between 1 and 20 years in prison and is specified by the statute for the crime. A category C felony carries between 1 and 5 years in prison and up to a $10,000. A category D felony carries between 1 and 4 years in prison and a fine of up to $5,000. A category E felony is punished by a term of prison between 1 and 4 years a fine of up to $5,000, but is different from a category D felony because the court is generally required to suspend the sentence and place the offender on probation. That said, the court can impose a term of jail as a condition of probation, so there are ways to get around the mandatory probation requirement of a category E felony.
Most of these sentences, unless prohibited by the specific criminal statute, are probationable. That means that the judge ssentences the defendant to a prison sentence, but “suspends” that sentence and places the offender on probation for a term not to exceed 5 years. The offender doesn't go to prison, goes on probation, but if they make a mistake, the judge can impose the sentence after a probation revocation hearing.
What is a “wobbler” in Nevada?
A category D or E felony that is charged as an attempt changes from a category D or E felony to something called a “wobbler.” A “wobbler” is a crime that can be treated as a felony or a gross misdemeanor. That means that when the judge sentences the person for these crimes the judge can sentence the person as a felon or gross misdemeanant. A gross misdemeanor is punishable by up to 364 days in jail and a fine of up to $2,000.
Are you or a loved one accused of a felony? Contact the experienced criminal defense attorneys about your criminal case at Mueller Hinds & Associates for a free consultation about your criminal case.