                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JULIO HERRERA,                                         No. 69482
                Appellant,
                VS.

                THE STATE OF NEVADA,
                Respondent.
                                                                            FILED
                                                                             JUN 1 7 2016
                                                                               IE K. LINDEMAN
                                                                                           COU


                                                                                    CLEM<


                                        ORDER OF AFFIRMANCE
                            This is an appeal from a district court order denying a motion
                to correct an illegal sentence. Eighth Judicial District Court, Clark
                County; William D. Kephart, Judge.
                            Appellant argues that his sentence is illegal because he was
                entitled to be sentenced by a jury rather than the district court where he
                did not stipulate to waiving that right as required by NRS 175.552(1), (2).
                A motion to correct an illegal sentence may only challenge the facial
                legality of the sentence: either the district court was without jurisdiction
                to impose a sentence or the sentence was imposed in excess of the
                statutory maximum. Edwards v. State, 112 Nev. 704, 708, 918 P.2d 321,
                324 (1996). "A motion to correct an illegal sentence 'presupposes a valid
                conviction and may not, therefore, be used to challenge alleged errors in
                proceedings that occur prior to the imposition of sentence."    Id. (quoting
                Allen v. United States, 495 A.2d 1145, 1149 (D.C. 1985). At the time
                appellant was sentenced, NRS 175.552 did not require the parties to
                stipulate to a waiver of the right to a separate penalty hearing before a
                jury, see 1977 Nev. Stat., ch. 585, § 7, at 1543, and this court has
                construed the previous version•of the statute as providing for a separate

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                penalty hearing only when the death penalty was a sentencing option. See
                Kazalyn v. State, 108 Nev. 67, 77, 825 P.2d 578, 584 (1992), receded from
                by Byford u. State, 116 Nev. 215, 994 P.2d 700 (2000); McCabe v. State, 98
                Nev. 604, 607, 655 P.2d 536, 538 (1982). The record shows that the death
                penalty was not a sentencing option in appellant's case. Therefore, the
                district court was not without jurisdiction to impose sentence nor was the
                sentence imposed in excess of the statutory maximum. Therefore, the
                district court did not err by denying the motion.' Accordingly, we
                            ORDER the judgment of the district court AFFIRMED.
                                           r.{-1„

                                                                  , J.




                cc: Hon. William D. Kephart, District Judge
                     Julio Herrera
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




                       'We note that appellant previously filed a motion to correct an
                illegal sentence in the district court based on the same grounds. The
                Court of Appeals upheld the district court's denial of that motion. Herrera
                v. State, Docket No. 67243 (Order of Affirmance, May 20, 2015).



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