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High court expands jeopardy ruling

CARSON CITY — Punishing a criminal defendant with a harsher prison term after portions of a conviction have been overturned on appeal is a violation of Nevada’s double jeopardy protections, the state Supreme Court has ruled.

The opinion came in the case of Wiley Wilson, originally convicted in Clark County in June 2003 of four counts of using a minor in the production of pornography and four counts of possession of child pornography.

Wilson was sentenced to four terms of two to six years on the possession charges and four terms of 10 years to life on the production charges. The four possession sentences were to run concurrently with, or at the same time as, the four longer production sentences, resulting in a 40-year to life minimum sentence.

But on appeal, the Nevada Supreme Court overturned three of the four most serious production charges because they all arose out of a single act.

When Wilson returned to Clark County District Court for resentencing following the Supreme Court decision, some of his remaining sentences were increased. The minimum sentence for each possession conviction was increased to two years and four months from two years, the statutory maximum. The court also said that the four possession sentences should run consecutively, or one after another, rather than concurrently with the one production count.

But the Supreme Court, in an opinion written by Justice Ron Parraguirre and issued Wednesday, unanimously rejected the tougher resentencing based on the double jeopardy argument. The high court’s opinion upheld and expanded its previous ruling in a different case that said: “When a court is forced to vacate an unlawful sentence on one count, the court may not increase a lawful sentence on a separate count.”

In the Wilson opinion, the court expanded that double jeopardy finding to apply regardless of how or why a resentencing proceeding becomes necessary.

The Clark County district attorney’s office argued on appeal that the court should adopt a new rule in such cases, one that would allow longer terms at a resentencing on any remaining counts as long as the new terms did not exceed the original punishment.

But the court rejected the proposal even though it noted that federal courts have held that defendants have no expectation of finality in their sentences when they exercise their right of appeal.

The Supreme Court said states are free to provide additional constitutional protections, such as those involving double jeopardy, beyond those provided for in the U.S. Constitution.

The result of the ruling is that Wilson will face a minimum of 10 years rather than a minimum of 19 years and four months under the resentencing. The court ordered the case back to District Court for resentencing in light of its ruling.

Contact Review-Journal Capital Bureau reporter Sean Whaley at swhaley@reviewjournal.com or (775) 687-3900.

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