by Matt Clarke
On May 24, 2022, the Supreme Court of Nevada ordered the state Department of Corrections (DOC) to credit a parolee for time he spent in custody awaiting parole revocation that exceeded the 60-day window state law provides for proceedings to begin.
After he was paroled, state prisoner Breck Warden Smith was arrested again for attempted burglary and possession of burglary tools. The state parole board soon issued a probable-cause report supporting a parole-violation charge and issued a retake warrant on April 11, 2018. Smith was remanded to DOC custody to await a revocation hearing.
NRS 213.1517(3) requires that a hearing be held within 60 days after a parolee is detained for a parole violation. But NRS 213.1517(4) provides an exception to the 60-day rule when the parolee is (a) detained on a new criminal charge and (b) not yet returned to DOC.
Over a year after his remand to DOC, Smith pleaded guilty to attempted burglary and received a consecutive sentence on his new charge. The parole board then revoked Smith’s parole for one year. He did not receive credit for any part of the year he’d spent incarcerated in DOC. And because his new sentence was consecutive, he could not begin it until his parole was reinstated following the one-year revocation period.
Smith filed an emergency petition for a writ of habeas corpus, arguing that the board exceeded its authority by returning him to DOC while deferring his revocation hearing until he pleaded guilty the following year. That caused him effectively to lose a year’s credit on his revocation period, he argued. The district court agreed and granted his petition, ordering DOC to credit Smith for the time he spent in prison after the 60-day window to hold a hearing on revocation of his parole expired. The state appealed.
But the Supreme Court agreed with Smith’s argument that the relevant statutes left the board with just two choices: Return the parolee to DOC custody and hold a revocation hearing within 60 days, or defer the hearing until no later than 60 days after adjudication of a new charge and the parolee’s return to DOC custody.
Either way, the Court said, the hearing must occur within 60 days of the parolee’s return to DOC custody. Since Smith was returned to DOC while awaiting his hearing, the new-charge exception cannot apply to his case. So the board had in fact exceeded its authority by deferring that hearing more than 60 days beyond his return to DOC custody. Accordingly, the district court’s order was affirmed.
Smith was represented before the Court by Las Vegas attorneys Michael J. McAvoyAmaya and Timothy E. Revero of McAvoy Amaya & Revero. See: In Re: Applic’n of Smith, 138 Nev. Adv. Op. 16 (2022).
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