Brown (David) v. Dist. Ct. (State)

• Court: Nevada Supreme Court
• Decided: March 13, 2013
• Docket: 62619
• Status: Unpublished

Opinion

to begin on the information on January 14, 2013. Three days before trial,

the State obtained an indictment charging petitioner with the same

offenses contained in the information and trial was scheduled to begin on

those charges on March 18, 2013, in a different judicial department. The

State then moved to voluntarily dismiss the information without

prejudice. Petitioner moved to dismiss the charges with prejudice

contending, among other things,' that any further delay would violate his

Sixth Amendment right to a speedy trial. At a hearing on petitioner's

motion, the district court declined to rule on petitioner's speedy-trial claim

and concluded that the claim was not properly before that judicial

department. We conclude that this was error.

"Any defense or objection which is capable of determination

without the trial of the general issue may be raised before trial by motion."

See NRS 174.095. This includes a claim of constitutional magnitude. See

generally State v. Erenyi, 85 Nev. 285, 287, 454 P.2d 101, 102 (1969)

(affirming district court's decision to grant defendant's motion to dismiss

charges because defendant was denied his constitutional right to a speedy

trial). "[T]he proper remedy for a violation of a defendant's constitutional

speedy-trial rights is dismissal of the [charging document] with prejudice."

'We conclude that petitioner has failed to satisfy his burden with respect to his other claims of error. See Winkle v. Warden, 127 Nev. , , 269 P.3d 898, 899-900 (2011). Any claim alleging conscious indifference to petitioner's procedural rights should be brought in a challenge to the subsequent indictment.

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745EI EDME9 111 U.S. v. Young, 657 F.3d 408, 413 (6th Cir. 2011), cert. denied, U.S.

132 S.Ct. 1647 (2012); see also Strunk v. United States, 412 U.S. 434, 440

(1973) (considering the severity of this remedy but concluding that

dismissal must remain "the only possible remedy" (internal quotation

marks omitted)). Had the district court considered petitioner's motion to

dismiss and ruled in his favor, the State would be precluded from

proceeding with the same charges in a separate charging document. See

Mann v. United States, 304 F.2d 394, 397 (D.C. Cir. 1962) ("[D]ismissal

based on a finding that the constitutional right to a speedy trial has been

denied bars all further prosecution of the accused for the same offense.").

Therefore, we conclude that the district court disregarded its duty to rule

on petitioner's constitutional speedy-trial claim before permitting the

State to dismiss the information without prejudice. See NRS 34.160; State

v. Dist. Ct. (Armstrong), 127 Nev. „ 267 P.3d 777, 779-80 (2011)

(discussing when a writ of mandamus will issue). Although petitioner

asks this court to order the district court to dismiss the information with

prejudice, a constitutional speedy-trial determination is a fact intensive

exercise and the record before us is insufficient to determine whether

petitioner was denied his Sixth Amendment right to a speedy trial. We

therefore grant the petition for extraordinary relief, in part, and direct the

clerk of this court to issue a writ of mandamus instructing the district

3 court to hold a hearing and determine whether petitioner was denied his

constitutional right to a speedy tria1. 2,3

It is so ORDERED.

Gibbons

Saitta

cc: Hon. Michael Villani, District Judge Bush & Levy, LLC Oronoz & Ericsson Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

2We express no opinion as to whether petitioner and the State can satisfy their respective burdens under the Sixth Amendment. See Doggett v. United States, 505 U.S. 647, 651-52 (1992); Redd v. Sowders, 809 F.2d 1266, 1269 (6th Cir. 1987).

3 We note that the petitioner has filed a motion for leave to file a reply to the State's answer and the State has opposed that motion. Given our resolution of the petition, we deny the petitioner's motion for leave.

SUPREME COURT OF NEVADA

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