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Lady Justice perched atop the Nevada Supreme Court building in Las Vegas as seen on Wednesday, Dec. 19, 2018. (Jeff Scheid-Nevada Independent)

The Nevada Supreme Court has opted not to overturn a precedent-setting 1996 case and will continue to require lower courts to grant convicted individuals credit for time served prior to sentencing.

In a unanimous order issued in late November, the seven-member court ruled in favor of a Reno woman who appealed a lower court’s decision to not credit her more than three months of time served during sentencing, thus keeping in place a 23-year-old precedent to credit inmates for time served prior to sentencing.

Justice Abbi Silver, who authored the opinion, wrote that the Washoe County District Court erred in forfeiting the time served and that the court saw “no compelling reason” to overturn its decision in the 1996 case of Kuykendall v. State, where it had ruled sentencing courts “must award credit for time served in presentence confinement.”

“When it comes to Kuykendall, we have no disagreement with it, let alone believe it to be clearly erroneous,” Silver wrote in the order. “In particular, the reasoning in Kuykendall is consistent with a general rule this court has long followed: ‘[I]n construing statutes, ‘may is construed as permissive . . . unless a different construction is demanded by the statute in order to carry out the clear intent of the legislature.”

The case involved a Reno woman named Uputaua Diana Poasa, who was charged and pled guilty to a felony charge of automobile grand larceny and a misdemeanor charge of unlawful taking of an automobile. After agreeing to a plea deal involving $800 in restitution and substance abuse counseling, Poasa was released on her own recognizance but failed to appear at sentencing and was ultimately arrested and extradited back to Washoe County and placed in custody.

At a subsequent sentencing hearing, Poasa was sentenced to a suspended prison term of 12 to 34 months and put on probation for a period to not exceed five years. The probation also required Poasa to complete drug court and serve an additional 29 days in jail, but also did not credit the 99 days Poasa already served while awaiting sentencing.

In the order, Silver wrote that the lower court’s decision violated the Supreme Court’s interpretation of a state law that states a court “may order that credit be allowed against the duration of the sentence” in cases of pretrial detainment.

Although the statute says “may,” Silver wrote that the court had determined in the 1996 case that courts did not have much discretion and that the “purpose of the statute is to ensure that all time served is credited towards a defendant’s ultimate sentence.”

“The Kuykendall court did not ignore the word “may” in the statute or that it generally conveys discretion; rather, the court determined that the statutes’ purpose demanded a different construction of ‘may’—that it imposed a mandate,” she wrote in the order.

Silver added that although the state and Washoe County District Attorney’s office had asked the court to overrule the 1996 decision based on “the statute’s plain language,” the Legislature’s “silence” in the subsequent two decades following the initial decision implied its “agreement with the court’s construction of the statute.” She also wrote that by taking away the discretion implied through the word “may,” the court was helping to avoid a host of other problems that could arise if pre-sentence time served wasn’t credited. 

“The mandatory construction also comports with notions of fundamental fairness, prevents arbitrary application of the statute, and avoids constitutional concerns with discrimination based on indigent status,” she wrote.

Generally, federal law requires individuals to be given credit towards their sentence if they are imprisoned prior to sentencing. The decision is the latest in a series of high-profile criminal justice matters that have appeared before the state’s highest court in 2019. A major, precedent-setting decision requiring jury trials for misdemeanor domestic violence cases has caused major ripple effects in Southern Nevada and throughout the state, and the court will soon rule on another major case challenging the state’s current use of cash bail for pretrial release.

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