Gonzalez (Raul) v. Dist. Ct. (State)

Nevada Supreme Court

Gonzalez (Raul) v. Dist. Ct. (State)

DecidedAugust 22, 2014

Docket66262

StatusUnpublished

This text of Gonzalez (Raul) v. Dist. Ct. (State) (Gonzalez (Raul) v. Dist. Ct. (State)) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gonzalez (Raul) v. Dist. Ct. (State), (Neb. 2014).

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that evidence concerning petitioner's pending murder charge should be allowed at sentencing. The district court denied the motion to strike the notice of intent and advised that the State's evidence of petitioner's pending murder charge must be in the form of live testimony. This original writ petition followed. A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of discretion, Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603, 637 P.2d 534, 536 (1981). A writ of mandamus will not issue, however, if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170. Further, mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered. See Poulos v. Eighth Judicial Diet Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't Transp. V. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). Petitioner argues that extraordinary relief is warranted because adjudicating him as a habitual criminal under NRS 207.010 is unconstitutional and violates a term in his plea agreement providing that the State could not seek a habitual criminal enhancement based on a new charge absent a probable cause determination by an independent magistrate. While petitioner's arguments lack clarity and the relief he requests is incongruent with the claims he raises in the petition, his claims clearly concern sentencing matters that may be challenged on

SUPREME COURT OF NEVADA 2 (0) 1947A ge appeal. Because he has an adequate remedy at law by way of an appeal, we decline to exercise our discretion to consider the petition on the merits. Accordingly, we deny the petition. See NRAP 21(b). It is so ORDERED.

J. Hardesty

J. Cherry

cc: Hon. David B. Barker, District Judge Special Public Defender Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (()) 1947A e,

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that evidence concerning petitioner's pending murder charge should be allowed at sentencing. The district court denied the motion to strike the notice of intent and advised that the State's evidence of petitioner's pending murder charge must be in the form of live testimony. This original writ petition followed. A writ of mandamus is available to compel the performance of an act which the law requires as a duty resulting from an office, trust or station, NRS 34.160, or to control an arbitrary or capricious exercise of discretion, Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603, 637 P.2d 534, 536 (1981). A writ of mandamus will not issue, however, if petitioner has a plain, speedy and adequate remedy in the ordinary course of law. NRS 34.170. Further, mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered. See Poulos v. Eighth Judicial Diet Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't Transp. V. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). Petitioner argues that extraordinary relief is warranted because adjudicating him as a habitual criminal under NRS 207.010 is unconstitutional and violates a term in his plea agreement providing that the State could not seek a habitual criminal enhancement based on a new charge absent a probable cause determination by an independent magistrate. While petitioner's arguments lack clarity and the relief he requests is incongruent with the claims he raises in the petition, his claims clearly concern sentencing matters that may be challenged on

SUPREME COURT OF NEVADA 2 (0) 1947A ge appeal. Because he has an adequate remedy at law by way of an appeal, we decline to exercise our discretion to consider the petition on the merits. Accordingly, we deny the petition. See NRAP 21(b). It is so ORDERED.

J. Hardesty

J. Cherry

cc: Hon. David B. Barker, District Judge Special Public Defender Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA 3 (()) 1947A e,

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Gonzalez (Raul) v. Dist. Ct. (State), Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-raul-v-dist-ct-state-nev-2014.

Opinion

J. Hardesty

J. Cherry

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