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17 ________________________

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Code 2840

F I LED Electronically

06-09-2010: 1 0:03:25 AM Howard W. Conyers

Clerk of the Court Transaction #~1§l1816

IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA

IN AND FOR THE COUNTY OF WASHOE

ROBERT ROY,

Appellant,

Case No. CR09.2007

VS. Dept. No. 3

CITY OF RENO,

Respondent. ~I

ORDER

On February 18, 2010, this Court denied Respondent City of Reno's motion to

dismiss but ordered Appellant Robert Roy to contact the Reno Municipal Court and

request a transcript of his September 28,2009 be transmitted to Second Judicial District

Court. Consequently, Respondent filed a motion for reconsideration on March 3,2010. No

opposition was filed. The motion was submitted for consideration on March 16,2010.

On September 28.2009, Appellant was found guilty of the offense of Speed 1-10 in

excess posted a violation of R.M.C. 06.06.280(3). Appellant filed his Notice of Appeal that

same day. On November 5, 2009, Appellant filed his opening brief. On November 10,

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1 2009, Respondent filed a motion to dismiss, arguing that Appellant failed to order the

2 transcript from Municipal Court.

3 A motion for reconsideration is proper where (a) there is an intervening change in

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controlling law, (b) the availability of new evidence that could not have been offered

6 beforehand, or (c) the need to correct a clear legal error or prevent manifest injustice. See

7 Firestone v. Firestone, 76 F.3d 1205, 1208,316 U.S.App.D.C. 152, 155 (D.C. 1996);

8 Geller v. McCown, 64 Nev. 102, 108, 178 P.2d 380, 381 (1947)(rehearings are not granted

9 as a matter of right and are not allowed for purposes of reargument, unless there is a

reasonable probability that the court may have arrived at an erroneous conclusion). "A 11

12 district court may reconsider a previously decided issue if substantially different evidence

13 is subsequently introduced or the decision is clearly erroneous." Masonry and Tile, 113

14 Nev. at 741, 941 P.2d at 489, citing, Little Earth of United Tribes v. Department of Housing,

807 F.2d 1433, 1441 (8th Cir. 1986); see also Moore v. City ofLas Vegas, 92 Nev. 402, 16

17 405,551 P.2d 244, 246 (1976) ("Only in very rare instances in which new issues offact or

18 law are raised supporting a ruling contrary to the ruling already reached should a motion

19 for rehearing be granted.") (emphasis added). However. absent new issues of material fact

or law. "Points or contentions not raised in the original hearing cannot be maintained or 21

considered on rehearing." Achrem v. Expressway Plaza Ltd. Partnership, 112 Nev. 737, 22

23 742.917 P.2d 447,450 (1996).

24 Here, Respondent now moves this court to reconsider its order denying the motion

to dismiss because this Court's decision is clearly erroneous. Respondent argues that it is

26 Appellant's duty to ensure that the transcript is transmitted to the Court. Respondent

27 contends that the Municipal Court is only required to make the transcript available to the

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1 Defendant within ten days of the Notice of Appeal, because it would impose a financial

2 burden to require the Municipal Court to physically provide every transcript for appeal to

3 the District Court.

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A defendant in a criminal proceeding has ten (10) days to file an appeal to the

6 district court. NRS 189.010. After defendant files his notice of appeal, "[t]he justice shall,

7 within 10 days after the notice of appeal is filed, transmit to the clerk of the district court the

8 transcript of the case, all other papers relating to the case and a certified copy of his 9

docket." NRS 189.030 (emphasis added). Unlike an appeal from the district court to the

11 Supreme Court, the justice court is responsible for transmitting the transcript to the district

12 court. See NRS 177.165.

13 Although Respondent concedes that NRS 189.030 requires the municipal court to

14 transmit the transcript to the district court, Respondent argues that Appellant must "request

and pay for the transcript before it can be provided, since the appeal is at his request." 16

17 (Mtn. Recon., p. 2). However, NRS 189.030 requires the justice court to deliver the

18 transcript within 10 days. NRS 189.030 says nothing about requiring payment by the

19 appellant prior to the transmission. Braham v. Fourth Judicial Dis!. Court, 103 Nev. 644,

647.747 P.2d 1390. 1392 (1987). Instead, NRS 4.410(2) establishes who pays for the 21

22 transcript.

23 Pursuant to NRS 4.410(2), transcripts must be paid for by the appellant. However,

24 NRS 4.410(2) specifically states, "[i]n a civil case, the preparation of the transcript need no

commence until the compensation has been deposited with the deputy clerk of the court."

26 (EmphasiS added). This is not a civil case; this is a criminal case that requires the justice

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28 court to transmit the transcript to the district court within 10 days. Unlike civil cases, neither

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NRS 4.410(2) nor NRS 189.030 requires the appellant to request and pay for the transcript

2 prior to its transmittal. See Braham, 103 Nev. at 647, 747 P.2d at 1392 ("when a justice's

3 court decision is appealed, the justice of the peace sends the case to the district court

4 within ten days and costs of transmission can properly be assessed to the non-indigent

6 appellant."). Therefore, this Court's decision to deny the motion to dismiss was not clearly

17 erroneous.

8 IT IS HEREBY ORDERED that Respondent's motion for reconsideration is DENIED.

9 Dated this ..fJ!:day of May 2010.

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28 1 It should be noted that Appellant is required to pay the costs of preparing the transcript.

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