Sheriff v. Menendez

651 P.2d 98, 98 Nev. 430, 1982 Nev. LEXIS 493

• Court: Nevada Supreme Court
• Decided: September 30, 1982
• Docket: No. 14028
• Status: Published

Opinion

OPINION

Per Curiam:

Respondent was arrested for alleged drug-related offenses on February 23, 1981. A preliminary hearing was scheduled immediately, but, as a result of numerous continuances, no preliminary hearing was ever held.

On February 11, 1982, respondent was indicted on four counts by a grand jury. Respondent subsequently sought and obtained in district court a permanent writ of habeas corpus and a dismissal of the indictment. This appeal followed.

Respondent’s principal contention in support of his petition to the district court was that prior to obtaining the indictment against him, the state had exhibited a conscious indifference toward his rights. Respondent based this contention on the fact that five continuances of the preliminary hearing were granted.

Whether the prosecution has displayed conscious indifference is a factual determination. To support such a finding, a defendant need not demonstrate that the conduct being challenged occurred intentionally or as a result of calculated bad faith. State v. Lamb, 97 Nev. 609, 637 P.2d 1201 (1981). However, the dereliction must be greater than what the record shows here. Although five continuances were obtained, all but two were pursuant to stipulation. The last continuance was at respondent’s sole request, and only the first continuance was obtained by the state over respondent’s objection.¹

The record in this case does not support the district court’s determination that the prosecution exhibited a conscious indifference toward respondent’s rights. Accordingly, we reverse the order of the district court granting the pretrial petition for a writ of habeas corpus, and we remand the case to the district court with directions to reinstate the indictment.²

1 Respondent does not contend that the prosecution obtained any of the stipulations through misrepresentation.

2 Respondent cited three additional grounds in support of his habeas corpus petition. Although the district court did not state on which grounds it relied in dismissing the indictment, we have determined that the additional grounds are also without merit.