SUMMARY--Provides for involuntary civil commitment of certain sexually violent predators and increases term of imprisonment for certain habitual sex offenders. (BDR 39-286)
FISCAL NOTE: Effect on Local Government: Yes.
Effect on the State or on Industrial Insurance: Yes.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to sex offenders; providing for the involuntary civil commitment of certain sexually violent predators; requiring the mental hygiene and mental retardation division of the department of human resources to adopt certain regulations concerning involuntary civil commitment; increasing the term of imprisonment for certain habitual sex offenders; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1 The legislature hereby finds and declares that:
1. Certain sex offenders who are convicted in this state pose a grave danger to the public because they are likely to commit sexual offenses repeatedly, most often without remorse or concern for their victims, many of whom are children.
2. Because those sex offenders who are convicted in this state pose a grave danger to the public, it is necessary to provide for longer terms of imprisonment for such sex offenders.
3. It is not the intent of the legislature to use involuntary civil commitment in lieu of imposing longer terms of imprisonment for habitual sex offenders convicted in this state.
Sec. 1.5. Chapter 433A of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 32, inclusive, of this act.
Sec. 2 The legislature hereby finds and declares that:
1. A small group of sexually violent predators suffers from mental disorders that render them dangerous to the public and likely to commit sexually violent offenses.
2. The existing procedures for involuntary court-ordered admission are inadequate to address the high risk that sexually violent predators will commit sexually violent offenses upon release from detention. Sexually violent predators do not have access to potential victims while detained and therefore may not engage in observable behavior which demonstrates that they remain dangerous to others and that further treatment would be in their best interests, as required by NRS 433A.310 to renew their detention. Sexually violent predators also require different modalities of treatment for a longer period of time than that offered by public or private mental health facilities as the result of traditional involuntary court-ordered admissions.
3. In order to ensure that the public is protected from sexually violent predators and that sexually violent predators receive proper treatment and care, it is necessary to provide for the involuntary civil commitment of sexually violent predators to the custody of the program for the treatment of sexually violent predators established by the division pursuant to subsection 1 of section 32 of this act. The program is not established to punish or to exact retribution against persons who have previously committed sexually violent offenses, but to provide appropriate treatment and care for such persons in a secure facility.
Sec. 3 As used in sections 2 to 32, inclusive, of this act, unless the context otherwise requires, the words and terms defined in sections 4 to 15, inclusive, of this act have the meanings ascribed to them in those sections.
Sec. 4 "Alternative course of treatment" and "course of treatment" mean a course of treatment, established by the division pursuant to subsection 2 of section 32 of this act, which is conducted in an environment that is less restrictive than the environment of the program.
Sec. 5 "Convicted" and "conviction" include an adjudication or judgment from a court having jurisdiction over juveniles if the adjudication or judgment involved an act that, if committed by an adult, would be a sexually violent offense.
Sec. 6 "Court" means the district court having jurisdiction over a proceeding pursuant to sections 2 to 32, inclusive, of this act.
Sec. 7 "Likely to commit a sexually violent offense" means that the person more probably than not will commit such an offense.
Sec. 8 "Mental disorder" means a congenital or acquired condition affecting the emotional or volitional capacity of a person which predisposes that person to the commission of violent sexual acts. The term includes, but is not limited to, mental disorders and personality disorders that are listed in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
Sec. 9 "Overt act" means a sexually motivated act that causes harm or creates a reasonable apprehension of harm.
Sec. 10 "Petition" means a petition filed pursuant to section 16 of this act alleging that the person named therein is a sexually violent predator.
Sec. 11 "Program" means the program for the treatment of sexually violent predators established by the division pursuant to subsection 1 of section 32 of this act.
Sec. 12 "Qualified professional" means a person who possesses the professional qualifications, as established by the division pursuant to subsection 3 of section 32 of this act, to evaluate a person alleged to be a sexually violent predator.
Sec. 13 "Sexually motivated" means that one of the purposes for which the person committed the act was his sexual gratification.
Sec. 14 "Sexually violent offense" means:
1. Sexual assault pursuant to NRS 200.366.
2. Battery with intent to commit sexual assault pursuant to NRS 200.400.
3. A violation of the provisions of NRS 201.195, 201.210, 201.220, 201.230 or 207.260 if:
(a) At the time of sentencing, the violation was found to have involved the use or the threatened use of violence or force against the victim; or
(b) During the hearing of a petition to determine whether the person named therein is a sexually violent predator, the district attorney proves beyond a reasonable doubt that the violation involved the use or the threatened use of violence or force against the victim.
4. An act of murder in the first or second degree, kidnaping in the first or second degree, false imprisonment, burglary or invasion of the home if:
(a) The act was found to have been sexually motivated pursuant to NRS 175.547; or
(b) During the hearing of a petition to determine whether the person named therein is a sexually violent predator, the district attorney proves beyond a reasonable doubt that the act was sexually motivated.
5. An attempt to commit an act or offense listed in subsections 1 to 4, inclusive.
6. An act or offense committed as a juvenile that, if committed by an adult, would be an act or offense listed in subsections 1 to 5, inclusive.
7. An act or offense committed in another jurisdiction that, if committed in this state, would be an act or offense listed in this section.
Sec. 15 "Sexually violent predator" means a person who has previously been convicted of a sexually violent offense and who:
1. Suffers from a mental disorder; and
2. Is dangerous to the public because he is likely to commit a sexually violent offense.
Sec. 16 1. Except as otherwise provided in subsection 4, a district attorney may file a petition in the district court alleging that a person is a sexually violent predator if the district attorney has reasonable cause to believe that the person is a sexually violent predator.
2. A petition filed pursuant to this section must contain sufficient facts to support the allegation of the district attorney that the person is a sexually violent predator. If the person named in the petition is not in confinement when the petition is filed, the petition must allege that the person has recently committed an overt act which, when considered in conjunction with the other facts alleged in the petition, is sufficient to establish that there is reasonable cause to believe the person is a sexually violent predator.
3. The district attorney may file a petition pursuant to this section:
(a) Before or after the person completes a sentence for a sexually violent offense; or
(b) Before or after the person completes a term of confinement as a juvenile for a sexually violent offense.
4. Before filing a petition pursuant to this section, a district attorney shall request the division to determine whether there is:
(a) An appropriate mental health facility in this state, any other state of the United States or the District of Columbia to which the person named in the petition may be committed; and
(b) Sufficient money available from the amounts appropriated by the legislature for the operation of the program to pay the costs of committing the person to the program.
If the division determines that there is no appropriate facility to which the person named in the petition may be committed or that there is insufficient money to pay the costs of committing that person to the program, the district attorney shall not file the petition.
Sec. 17 1. The person named in a petition filed pursuant to section 16 of this act may retain counsel to represent him in all proceedings held before the court pursuant to sections 2 to 32, inclusive, of this act. If the person is indigent and requests counsel, the court shall appoint counsel, who may be the public defender or his deputy, to represent the person in all such proceedings before the court.
2. The court shall award compensation to counsel appointed pursuant to subsection 1 for his services in an amount determined by the court to be fair and reasonable. Compensation for appointed counsel must be charged against the county in which the petition is brought.
3. The district attorney or a deputy district attorney shall represent the state in all proceedings that are held pursuant to sections 2 to 32, inclusive, of this act.
Sec. 18 1. Not later than 72 hours after a petition is filed pursuant to section 16 of this act, the court shall hold a hearing to determine whether probable cause exists to believe that the person named in the petition is a sexually violent predator. Upon the request of counsel for the person named in the petition, the court shall grant a recess in the hearing to give counsel an opportunity to prepare for the hearing. The recess must not exceed 5 days.
2. If, at the conclusion of the hearing, the court determines that probable cause exists, the court shall:
(a) Order that the person named in the petition be taken into custody and detained at a mental health facility for examination by a qualified professional.
(b) Schedule a hearing to determine whether the person named in the petition is a sexually violent predator. The hearing must be held not later than 45 days after the finding of probable cause is made.
Sec. 19 At a hearing to determine whether a person is a sexually violent predator, the court shall act as the finder of fact.
Sec. 20 1. To prove that the person named in the petition is a sexually violent predator, the district attorney must prove by clear and convincing evidence that the person named in the petition:
(a) Has been convicted of a sexually violent offense;
(b) Suffers from a mental disorder; and
(c) Is dangerous to the public because he is likely to commit a sexually violent offense.
For purposes of paragraph (a), a certified copy of a conviction is prima facie evidence of that conviction.
2. To prove that the person named in the petition requires commitment to the program, the district attorney must prove by clear and convincing evidence that an alternative course of treatment:
(a) Is not in the best interests of the person; or
(b) Will not adequately protect the public.
3. If the court finds that the person named in the petition is a sexually violent predator and that the person requires commitment to the program, the court shall enter an order committing the person to the custody of the program.
4. If the court finds that the person named in the petition is a sexually violent predator but does not find that the person requires commitment to the program, the court shall enter an order that the person be conditionally released to undergo an alternative course of treatment pursuant to the provisions of sections 29 and 30 of this act.
5. If the court finds that the district attorney has not proven that the person named in the petition is a sexually violent predator, the court shall enter an order that the person be released.
Sec. 21 In all proceedings that are held pursuant to sections 2 to 32, inclusive, of this act:
1. The court, within its discretion, may hear and consider all relevant evidence, including, but not limited to:
(a) The testimony of qualified professionals who have examined the person named in the petition;
(b) The testimony of experts or other qualified persons retained by the person named in the petition; and
(c) The testimony of other witnesses.
2. Except as otherwise provided in subsection 2 of section 25 of this act, the person named in the petition must be present and, at the discretion of the court, may testify.
3. A witness who is subpoenaed to testify must be paid the same fees and mileage as is paid to a witness in the courts of this state.
Sec. 22 If the person named in the petition is subjected to an examination by a qualified professional pursuant to sections 2 to 32, inclusive, of this act:
1. The person may retain experts or other qualified persons to perform an examination on his behalf;
2. The division shall permit an expert or other qualified person retained by the person named in the petition to have reasonable access to the person named in the petition and to all relevant medical and psychological records and reports; and
3. If the person named in the petition is indigent, upon his request or the request of his counsel, the court shall assist the person named in the petition in obtaining an expert or other qualified person to perform an examination or to testify on behalf of the person named in the petition.
Sec. 23 1. If a person is committed to the custody of the program, the division shall select a qualified professional to conduct a complete examination of the person once each year to evaluate his mental condition. The qualified professional selected by the division must have access to all records concerning the person committed.
2. In conducting his examination, the qualified professional selected by the division shall consider whether conditional release to an alternative course of treatment is in the best interests of the person committed and whether such conditional release will adequately protect the public.
3. Upon completion of his examination of the person committed, the qualified professional selected by the division shall prepare a report of his conclusions regarding the mental condition of the person committed and shall submit that report to the administrator. The administrator shall provide a copy of the report to the court.
Sec. 24. If, at any time during the period of commitment, the administrator determines that a person committed to the custody of the program:
1. No longer suffers from a mental disorder;
2. No longer is dangerous to the public; or
3. Is suitable for conditional release to an alternative course of treatment,
the administrator, within 5 days after this determination, shall file with the court a request for release of the person committed and shall provide a copy of the request for release to the person committed and the district attorney.
Sec. 25. 1. Upon receiving from the administrator:
(a) The report prepared each year pursuant to section 23 of this act; or
(b) A request for release filed pursuant to section 24 of this act,
the court shall schedule a hearing to show cause. The hearing to show cause must be held not later than 5 days after the date the report or the request for release is received from the administrator.
2. At the hearing to show cause, the court shall determine whether probable cause exists to believe that the mental condition or the dangerousness of the person committed has so changed that a hearing for release is warranted. The person committed may be represented by counsel at the hearing to show cause, but the person committed may not be present at the hearing.
3. If the court determines that probable cause exists to believe that the mental condition or the dangerousness of the person committed has so changed that a hearing for release is warranted, the court shall schedule a hearing for release, which must be held not later than 45 days after the date of the hearing to show cause.
Sec. 26. If the court schedules a hearing for release, the district attorney may request that the person committed submit to an examination by a qualified professional selected by the district attorney. A request for an examination pursuant to this section must be made not later than 30 days before the date of the hearing for release.
Sec. 27. A hearing for release must be conducted in the same manner as a hearing to determine whether a person is a sexually violent predator, and the person committed must be afforded the same rights that are provided in a hearing to determine whether a person is a sexually violent predator.
Sec. 28. At a hearing for release:
1. To prove that the person committed remains a sexually violent predator, the district attorney must prove by clear and convincing evidence that the person committed:
(a) Continues to suffer from a mental disorder; and
(b) Continues to be dangerous to the public because he is likely to commit a sexually violent offense.
2. To prove that the person committed requires continued commitment to the program, the district attorney must prove by clear and convincing evidence that an alternative course of treatment:
(a) Is not in the best interests of the person committed; or
(b) Will not adequately protect the public.
3. If the court finds that the person committed remains a sexually violent predator and that the person requires continued commitment to the program, the court shall enter an order continuing the commitment of the person.
4. If the court finds that the person committed remains a sexually violent predator but does not find that the person requires continued commitment to the program, the court shall enter an order that the person be conditionally released to undergo an alternative course of treatment pursuant to the provisions of sections 29 and 30 of this act.
5. If the court finds that the district attorney has not proven that the person committed remains a sexually violent predator, the court shall enter an order that the person be released.
Sec. 29. 1. If the court enters an order conditionally releasing a person to undergo an alternative course of treatment, the court shall impose conditions on the person to ensure that the person complies with the course of treatment and to protect the public.
2. If the district attorney has reasonable cause to believe that a person conditionally released to undergo an alternative course of treatment has violated a condition imposed by the court, the district attorney shall request that the court hold a hearing to determine if such a violation has occurred.
3. Upon receipt of a request by the district attorney for a hearing on an alleged violation, the court shall order that the person be taken into custody and detained at a mental health facility until a hearing on the alleged violation is held. The court shall hold the hearing on the alleged violation not later than 5 days after the date the person is taken into custody.
4. If the court determines at the hearing that the person violated a condition imposed by the court, the court shall enter an order committing the person to the custody of the program.
5. If the court determines at the hearing that the person did not violate a condition imposed by the court, the court shall enter an order reinstating the conditional release of the person. As part of such an order, the court may:
(a) Select a different course of treatment for the person;
(b) Modify the conditions imposed on the person; or
(c) Impose additional conditions on the person.
Sec. 30. 1. If a person is conditionally released to undergo an alternative course of treatment, the court shall hold a hearing once per year, and may hold a hearing more often, to determine whether the person requires continued participation in an alternative course of treatment.
2. At the conclusion of the hearing, the court may:
(a) Release the person from participating in an alternative course of treatment;
(b) Select a different course of treatment for the person;
(c) Modify the conditions imposed on the person; or
(d) Impose additional conditions on the person.
Sec. 31. An appeal may be taken from a judgment or an order of the court entered pursuant to sections 2 to 32, inclusive, of this act in the same manner and under the same circumstances as an appeal taken from a civil case originating in a district court.
Sec. 32. 1. The division shall adopt regulations establishing the program, including, but not limited to, regulations:
(a) Specifying guidelines for the treatment and care of persons committed to the custody of the program;
(b) Ensuring that persons committed to the custody of the program are securely confined and that appropriate procedures are followed to protect the safety of persons in the custody of the program and the safety of the public; and
(c) Providing that a person committed to the custody of the program is permitted to:
(1) Wear his own clothing and to keep and use his personal possessions, except when the deprivation of such possessions is necessary for his treatment, protection or safety, for the protection or safety of others or for the protection of property within the facility;
(2) Have access to reasonable space for the storage of personal possessions, within the limitations of the facility;
(3) Have approved visitors within reasonable limitations;
(4) Have reasonable access to a telephone to make and receive telephone calls;
(5) Have reasonable access to materials to write letters; and
(6) Receive and send correspondence through the mail within reasonable limitations.
2. The division shall adopt regulations establishing alternative courses of treatment. An alternative course of treatment may include reasonable periods of confinement and restrictions on movement.
3. The division shall adopt regulations setting forth the professional qualifications that are required for a person to be a qualified professional for the purpose of evaluating sexually violent predators. A qualified professional may be a resident of this state, any other state of the United States or the District of Columbia.
4. The division shall, in conjunction with the department of prisons, make available mental health facilities for persons committed to the custody of the program or ordered to undergo alternative courses of treatment. The mental health facilities made available pursuant to this subsection may be located in this state, any other state of the United States or the District of Columbia.
Sec. 33. NRS 173.095 is hereby amended to read as follows:
173.095 1. The court may permit an indictment or information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
2. If an indictment is found charging a primary offense upon which a charge of habitual criminality may be based, the prosecuting attorney may file a notice of habitual criminality with the court. If an indictment is found charging a primary offense upon which a charge of:
(a) Habitually fraudulent felon may be based, the prosecuting attorney shall file a notice of habitually fraudulent felon with the court.
(b) Habitual felon may be based, the prosecuting attorney shall file a notice of habitual felon with the court.
(c) Habitual sex offender may be based, the prosecuting attorney shall file a notice of habitual sex offender with the court.
3. The court shall permit an information to be amended pursuant to subsection 4 of NRS 173.035.
Sec. 34. NRS 176.185 is hereby amended to read as follows:
176.185 1. Except as otherwise provided in this section, whenever a person is found guilty in a district court of a crime upon verdict or plea, except in cases of murder of the first or second degree, kidnaping in the first degree, sexual assault, attempted sexual assault of a child who is less than 16 years of age, an offense for which the suspension of sentence or the granting of probation is expressly forbidden, or where the person is found to be a habitual criminal pursuant to NRS 207.010, a habitually fraudulent felon pursuant to NRS 207.014 , [or] a habitual felon pursuant to NRS 207.012 [,] or a habitual sex offender pursuant to section 35 of this act, the court:
(a) If the person is found guilty of a category E felony, shall suspend the execution of the sentence imposed and grant probation to the person pursuant to NRS 193.130; or
(b) If the person is found guilty of any other felony, a gross misdemeanor or a misdemeanor, may suspend the execution of the sentence imposed and grant probation as the court deems advisable.
2. In determining whether to place a person on probation, the court shall not consider whether the person has the financial ability to participate in a program of probation secured by a surety bond established pursuant to NRS 176.1851 to 176.18525, inclusive.
3. The court may grant probation to a person convicted of indecent or obscene exposure or of lewdness only if a certificate of a psychologist or psychiatrist, as required by NRS 201.210, 201.220 or 201.230, is received by the court. The court shall consider the standards adopted pursuant to NRS 213.10988 and the recommendation of the chief parole and probation officer, if any, in determining whether to grant probation.
4. If the court determines that a defendant is otherwise eligible for probation but requires more supervision than would normally be provided to a person granted probation, the court may, in lieu of sentencing him to a term of imprisonment, grant him probation pursuant to the program of intensive supervision established pursuant to NRS 176.198.
5. The court shall not, except as otherwise provided in this subsection, grant probation to a person convicted of a felony until the court receives a written report from the chief parole and probation officer. The chief parole and probation officer shall submit a written report not later than 45 days following a request for a probation investigation from the county clerk, but if a report is not submitted by the chief parole and probation officer within 45 days the district judge may grant probation without the written report.
6. If the court determines that a defendant is otherwise eligible for probation, the court shall when determining the conditions of that probation consider the imposition of such conditions as would facilitate timely payments by the defendant of his obligation, if any, for the support of a child and the payment of any such obligation which is in arrears.
Sec. 35. Chapter 207 of NRS is hereby amended by adding thereto a new section to read as follows:
1. If a person is convicted in this state of a sexually violent offense and the person previously has been convicted of at least one other sexually violent offense, the person is a habitual sex offender and shall be punished for a category A felony by imprisonment in the state prison for life without the possibility of parole.
2. If a person is alleged to have committed a sexually violent offense in this state and the person has at least one prior conviction of a sexually violent offense, the prosecuting attorney shall include a count of habitual sex offender in any information that is filed or, if an indictment is found, shall file a notice of habitual sex offender.
3. The trial judge may not dismiss a count under this section that is included in an indictment or information.
4. If a person is adjudicated a habitual sex offender pursuant to this section and adjudicated a habitual felon pursuant to NRS 207.012 in the same proceeding, the person must be punished pursuant to this section.
5. As used in this section, "sexually violent offense" means:
(a) Sexual assault pursuant to NRS 200.366.
(b) Battery with intent to commit sexual assault pursuant to NRS 200.400.
(c) A violation of the provisions of NRS 201.195, 201.210 or 201.230 if:
(1) At the time of sentencing, the violation was found to have involved the use or the threatened use of violence or force against the victim; or
(2) During the hearing held pursuant to NRS 207.016, the prosecuting attorney proves beyond a reasonable doubt that the violation involved the use or the threatened use of violence or force against the victim.
(d) An act of murder in the first or second degree, kidnaping in the first or second degree, false imprisonment, burglary or invasion of the home if:
(1) The act was found to have been sexually motivated pursuant to NRS 175.547; or
(2) During the hearing held pursuant to NRS 207.016, the prosecuting attorney proves beyond a reasonable doubt that the act was sexually motivated, as defined in subsection 5 of NRS 175.547.
(e) An attempt to commit an act or offense listed in paragraphs (a) to (d), inclusive.
(f) An act or offense committed in another jurisdiction that, if committed in this state, would be an act or offense listed in this subsection.
Sec. 36. NRS 207.010 is hereby amended to read as follows:
207.010 1. Unless the person is prosecuted pursuant to NRS 207.012 or 207.014 [,] or section 35 of this act, a person convicted in this state of:
(a) Any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who has previously been two times convicted, whether in this state or elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a felony, or who has previously been three times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, is a habitual criminal and shall be punished for a category B felony by imprisonment in the state prison for a minimum term of not less than 5 years and a maximum term of not more than 20 years.
(b) Any felony, who has previously been three times convicted, whether in this state or elsewhere, of any crime which under the laws of the situs of the crime or of this state would amount to a felony, or who has previously been five times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or the intent to defraud is an element, is a habitual criminal and shall be punished for a category A felony by imprisonment in the state prison:
(1) For life without the possibility of parole;
(2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or
(3) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.
2. It is within the discretion of the prosecuting attorney whether to include a count under this section in any information or file a notice of habitual criminality if an indictment is found. The trial judge may, at his discretion, dismiss a count under this section which is included in any indictment or information.
Sec. 37. NRS 207.012 is hereby amended to read as follows:
207.012 1. A person who:
(a) Has been convicted in this state of a felony listed in subsection 2; and
(b) Before the commission of that felony, was twice convicted of any crime which under the laws of the situs of the crime or of this state would be a felony listed in subsection 2, whether the prior convictions occurred in this state or elsewhere,
is a habitual felon and , except as otherwise provided in section 35 of this act, shall be punished for a category A felony by imprisonment in the state prison:
(1) For life without the possibility of parole;
(2) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or
(3) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.
2. The district attorney shall include a count under this section in any information or shall file a notice of habitual felon if an indictment is found, if each prior conviction and the alleged offense committed by the accused constitutes a violation of subparagraph (1) of paragraph (a) of subsection 1 of NRS 193.330, NRS 199.160, 199.500, 200.030, 200.320, 200.330, 200.340, 200.366, 200.380, 200.390, subsection 3 or 4 of NRS 200.400, NRS 200.410, subsection 3 of NRS 200.450, subsection 4 of NRS 200.460, NRS 200.465, subsection 2 of NRS 200.508, NRS 200.710, 200.720, 201.230, 201.450, 202.170, 202.270, subsection 2 of NRS 202.780, paragraph (b) of subsection 2 of NRS 202.820, subsection 2 of NRS 202.830, NRS 205.010, subsection 4 of NRS 205.060, subsection 4 of NRS 205.067, NRS 205.075, 207.400, paragraph (a) of subsection 1 of NRS 212.090, NRS 453.333, 484.219 or 484.3795.
3. The trial judge may not dismiss a count under this section that is included in an indictment or information.
Sec. 38. NRS 207.016 is hereby amended to read as follows:
207.016 1. A conviction pursuant to NRS 207.010, 207.012 or 207.014 or section 35 of this act operates only to increase, not to reduce, the sentence otherwise provided by law for the principal crime.
2. If a count pursuant to NRS 207.010, 207.012 or 207.014 or section 35 of this act is included in an information charging the primary offense, each previous conviction must be alleged in the accusatory pleading, but no such conviction may be alluded to on trial of the primary offense, nor may any allegation of the conviction be read in the presence of a jury trying the offense or a grand jury considering an indictment for the offense. A count pursuant to NRS 207.010, 207.012 or 207.014 or section 35 of this act may be separately filed after conviction of the primary offense, but if it is so filed, sentence must not be imposed, or the hearing required by subsection 3 held, until 15 days after the separate filing.
3. If a defendant charged pursuant to NRS 207.010, 207.012 or 207.014 or section 35 of this act pleads guilty or guilty but mentally ill to, or is found guilty of, the primary offense [, but] and:
(a) The defendant denies any previous conviction charged [,] ; or
(b) The prosecuting attorney must prove an additional factor to establish that a previous conviction was for a sexually violent offense pursuant to paragraph (c) or (d) of subsection 5 of section 35 of this act,
the court shall determine the issue of the previous conviction or the additional factor after hearing all relevant evidence presented on the issue by the [prosecution] prosecuting attorney and the defendant. At such a hearing, the defendant may not challenge the validity of a previous conviction.
4. The court shall impose sentence:
(a) Pursuant to NRS 207.010 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitual criminality;
(b) Pursuant to NRS 207.012 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitual felon [; or] , unless the provisions of section 35 of this act otherwise apply;
(c) Pursuant to NRS 207.014 upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitually fraudulent felon [.
4.] ; or
(d) Pursuant to section 35 of this act upon finding that the defendant has suffered previous convictions sufficient to support an adjudication of habitual sex offender.
5. Nothing in the provisions of this section, NRS 207.010, 207.012 or 207.014 or section 35 of this act limits the [prosecution] prosecuting attorney in introducing evidence of prior convictions for purposes of impeachment.
[5.] 6. For the purposes of NRS 207.010, 207.012 and 207.014 [,] and section 35 of this act, a certified copy of a felony conviction is prima facie evidence of conviction of a prior felony.
[6.] 7. Nothing in the provisions of this section, NRS 207.010, 207.012 or 207.014 or section 35 of this act prohibits a court from imposing an adjudication of habitual criminality, adjudication of habitual felon , [or] adjudication of habitually fraudulent felon or adjudication of habitual sex offender based upon a stipulation of the parties.
Sec. 39. Section 13 of Senate Bill No. 133 of this session is hereby amended to read as follows:
Sec. 13. NRS 176.185 is hereby amended to read as follows:
176.185 1. Except as otherwise provided in this section, [whenever] if a person is found guilty in a district court [of a crime] upon verdict or plea [, except in cases of murder] of:
(a) Murder of the first or second degree, kidnaping in the first degree, sexual assault, attempted sexual assault of a child who is less than 16 years of age, an offense for which the suspension of sentence or the granting of probation is expressly forbidden, or [where] if the person is found to be a habitual criminal pursuant to NRS 207.010, a habitually fraudulent felon pursuant to NRS 207.014, a habitual felon pursuant to NRS 207.012 or a habitual sex offender pursuant to section 35 of [this act,] Senate Bill No. 100 of this session, the court [:
(a) If the person is found guilty of a] shall not suspend the execution of the sentence imposed or grant probation to the person.
(b) A category E felony, except as otherwise provided in this paragraph, the court shall suspend the execution of the sentence imposed and grant probation to the person . [pursuant to NRS 193.130; or
(b) If the person is found guilty of any other] The court may, as it deems advisable, decide not to suspend the execution of the sentence imposed and grant probation to the person if, at the time the crime was committed, the person:
(1) Was serving a term of probation, whether in this state or elsewhere, for a felony conviction;
(2) Had previously had his probation revoked, whether in this state or elsewhere, for a felony conviction; or
(3) Had previously been two times convicted, whether in this state or elsewhere, of a crime that under the laws of the situs of the crime or of this state would amount to a felony.
If the person denies the existence of a previous conviction, the court shall determine the issue of the previous conviction after hearing all relevant evidence presented on the issue by the prosecution and the person. At such a hearing, the person may not challenge the validity of a previous conviction. For the purposes of this subparagraph, a certified copy of a felony conviction is prima facie evidence of conviction of a prior felony.
(c) Another felony, a gross misdemeanor or a misdemeanor, the court may suspend the execution of the sentence imposed and grant probation as the court deems advisable.
2. In determining whether to place a person on probation, the court shall not consider whether the person has the financial ability to participate in a program of probation secured by a surety bond established pursuant to NRS 176.1851 to 176.18525, inclusive.
3. The court may grant probation to a person convicted of indecent or obscene exposure or of lewdness only if a certificate of a psychologist or psychiatrist, as required by NRS 201.210, 201.220 or 201.230, is received by the court. The court shall consider the standards adopted pursuant to NRS 213.10988 and the recommendation of the chief parole and probation officer, if any, in determining whether to grant probation.
4. If the court determines that a defendant is otherwise eligible for probation but requires more supervision than would normally be provided to a person granted probation, the court may, in lieu of sentencing him to a term of imprisonment, grant him probation pursuant to the program of intensive supervision established pursuant to NRS 176.198.
5. The court shall not, except as otherwise provided in this subsection, grant probation to a person convicted of a felony until the court receives a written report from the chief parole and probation officer. The chief parole and probation officer shall submit a written report not later than 45 days following a request for a probation investigation from the county clerk, but if a report is not submitted by the chief parole and probation officer within 45 days the district judge may grant probation without the written report.
6. If the court determines that a defendant is otherwise eligible for probation, the court shall when determining the conditions of that probation consider the imposition of such conditions as would facilitate timely payments by the defendant of his obligation, if any, for the support of a child and the payment of any such obligation which is in arrears.
Sec. 40. The provisions of subsection 1 of NRS 354.599 do not apply to any additional expenses of a local government that are related to the provisions of this act.
Sec. 41. The amendatory provisions of sections 2 to 32, inclusive, of this act apply to all persons who have been convicted of a sexually violent offense, as defined in section 14 of this act, whether or not:
1. The offense was committed before, on or after October 1, 1997;
2. The person was sentenced for the offense before, on or after October 1, 1997; or
3. The person was released from confinement before, on or after October 1, 1997.
Sec. 42. The amendatory provisions of sections 33 to 38, inclusive, of this act apply to offenses that are committed before, on or after October 1, 1997.
Sec. 43. Sections 36, 37 and 38 of this act become effective at 12:01 a.m. on October 1, 1997.