                   offense for driving under the influence and his custody is based upon that
                   charge. Gaon fails to demonstrate that his present prosecution is a breach
                   of his 1985 plea agreement as he has provided no documentary proof that
                   a term of his 1985 plea agreement was that he could only be charged with
                   a felony for a subsequent offense for a period of only 7 years.'
                                 More importantly, Gaon's ex post facto argument is without
                   merit. Although Gaon's 1985 felony conviction occurred before the 2005
                   enactment of the provision making a subsequent offense a felony
                   regardless of the timing, see 2005 Nev. Stat., ch. 193, § 3, at 607-08, 2 at the
                   time he committed the instant offense, reference to NRS 484C.410(1)
                   informed Gaon that he was subject to a felony prosecution for any driving-
                   under-the-influence offenses because of his prior felony convictions.       See

                   Dixon v. State, 103 Nev. 272, 274, 737 P.2d 1162, 1164 (1987) (holding that
                   the third-offense felony provision was not an ex post facto law, despite the
                   fact that the prior convictions antedated enactment of the provision,
                   because the statute in effect at the time the defendant committed the
                   subsequent offense informed him of the penalty); see also Weaver v.
                   Graham, 450 U.S. 24, 30 (1981) (stating that the Ex Post Facto Clause
                   "forbids the imposition of punishment more severe than the punishment
                   assigned by law when the act to be punished occurred" (emphasis added));


                         1 Thedeclarations provided by Gaon merely indicate the advice given
                   in 1985, which was accurate given the law at the time of his prior offense,
                   see 1983 Nev. Stat., ch. 426, § 10, at 1070-71, and do not support an
                   argument that the plea agreement contained a term that any subsequent
                   felony prosecution was limited to 7 years.

                             Legislature made the amendment applicable to all offenses
                         2 The
                   committed before October 1, 2005. See 2005 Nev. Stat., ch. 193, § 14, at
                   617.


SUPREME COURT
        OF
     NEVADA
                                                          2
(0) 1947A    (en
                     United States v. Katuna, 192 F.3d 1188, 1199 (9th Cir. 1999) (providing
                     that recidivist statutes do not violate the Ex Post Facto Clause if the
                     recidivist statutes exist at the time of commission of the subsequent
                     offense). Accordingly, we
                                 ORDER the petition DENIED.




                                                                 Saitta




                     cc:   Hon. Jennifer P. Togliatti, District Judge
                           Law Offices of John G. Watkins
                           Attorney General/Carson City
                           Clark County District Attorney
                           Eighth District Court Clerk




SUPREME COURT
        OF
     NEVADA
                                                           3
(0) 1947A    (4iP0
