The Nevada Supreme Court on Wednesday sent the case of Wiley Wilson back to district court for the second time, ruling the judge there had unconstitutionally increased his sentence.
Wilson was originally convicted of four counts of possessing child porn and four counts of producing it. He was sentenced to 2 to 6 years on each of the possession charges to run concurrently with four consecutive 10-year to life sentences for producing porn. That meant he would have to serve at least 40 years before getting out.
But the Supreme Court threw out three of the production counts because they were all the same incident. That removed three of the 10-to-life sentences which meant, according to the opinion, Wilson could get out after a minimum term of 10 years.
On resentencing, however, Clark County District Judge Michelle Leavitt changed the sentencing structure. First, she increased the minimum sentence on each possession charge from 24 months to 28 months. Then she ruled those sentences should run consecutively to the porn production count.
That raised the minimum time Wilson had to serve from the 10 years set by the high court when it returned the case to district court to 19 years in prison.
His lawyers appealed saying it's unconstitutional to increase the sentences on his remaining counts just because other counts against him were overturned and, Wednesday, the high court unanimously agreed.
The opinion by Justice Ron Parraguirre cited an earlier Nevada case where the court held that: "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."
"We conclude that, in this case, the district court's resentencing on the lawful portions of Wilson's conviction surviving direct appeal violated Wilson's rights against double jeopardy," he wrote in Wednesday's opinion.
• Contact reporter Geoff Dornan at firstname.lastname@example.org or 687-8750.