Senate Bill No. 493–Committee on Judiciary

(On Behalf of District Attorney’s Association)

March 19, 1999

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Referred to Committee on Judiciary

 

SUMMARY—Revises provisions relating to filing of information against defendant who is discharged by magistrate after preliminary examination. (BDR 14-613)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to criminal procedure; revising the provisions relating to the filing of an information against a defendant who is discharged by a magistrate after a preliminary examination; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 171.198 is hereby amended to read as follows:

1-2 171.198 1. The magistrate shall employ a certified court reporter to

1-3 take down all the testimony and the proceedings on the hearing or

1-4 examination, and within such time as the court may designate have such

1-5 testimony and proceedings transcribed into typewritten transcript.

1-6 2. When the testimony of each witness is all taken and transcribed by

1-7 the reporter, the reporter shall certify to the transcript in the same manner

1-8 as for a transcript of testimony in the district court, which certificate

1-9 authenticates the transcript for all purposes of this Title.

1-10 3. Before the district court makes a determination concerning plain

1-11 error pursuant to NRS 173.035 or, if such a determination is not made,

1-12 before the date set for trial, either party may move the court before which

1-13 the case is pending to add to, delete from, or otherwise correct the

1-14 transcript to conform with the testimony as given and to settle the transcript

1-15 so altered.

1-16 4. The compensation for the services of a reporter employed as

1-17 provided in this section are the same as provided in NRS 3.370, to be paid

2-1 out of the county treasury as other claims against the county are allowed

2-2 and paid.

2-3 5. Testimony reduced to writing and authenticated according to the

2-4 provisions of this section must be filed by the examining magistrate with

2-5 the clerk of the district court of his county, and if the [prisoner] defendant

2-6 is subsequently examined upon a writ of habeas corpus, such testimony

2-7 must be considered as given before such judge or court. A copy of the

2-8 transcript must be furnished to the defendant and to the [district]

2-9 prosecuting attorney.

2-10 6. The testimony so taken may be used by the district court pursuant

2-11 to NRS 173.035. The testimony so taken may also be used:

2-12 (a) By the defendant; or

2-13 (b) By the state if the defendant was represented by counsel or

2-14 affirmatively waived his right to counsel,

2-15 upon the trial of the cause, and in all proceedings therein, when the witness

2-16 is sick, out of the state, dead, or persistent in refusing to testify despite an

2-17 order of the judge to do so, or when his personal attendance cannot be had

2-18 in court.

2-19 Sec. 2. NRS 173.035 is hereby amended to read as follows:

2-20 173.035 1. An information may be filed against [any person] a

2-21 defendant for any offense [when the person:

2-22 (a) Has] if:

2-23 (a) The defendant has had a preliminary examination as provided by

2-24 law before a justice of the peace [,] or other examining officer or magistrate

2-25 [,] and has been bound over to appear [at the court having jurisdiction; or

2-26 (b) Has] before the district court;

2-27 (b) The defendant has waived his right to a preliminary examination [.

2-28 2. If, however, upon the] ; or

2-29 (c) The district court has made a determination pursuant to this

2-30 section that the justice of the peace or other examining officer or

2-31 magistrate committed plain error by discharging the defendant on the

2-32 offense.

2-33 2. If a defendant is discharged on any offense after having had a

2-34 preliminary examination , the [accused has been discharged, or the affidavit

2-35 or complaint upon which the examination has been held has not been

2-36 delivered to the clerk of the proper court, the attorney general when acting

2-37 pursuant to a specific statute or the district attorney may, upon affidavit of

2-38 any person who has knowledge of the commission of an offense, and who is

2-39 a competent witness to testify in the case, setting forth the offense and the

2-40 name of the person or persons charged with the commission thereof, upon

2-41 being furnished with the names of the witnesses for the prosecution, by

2-42 leave of the court first had, file an information, and process must forthwith

2-43 be issued thereon. The affidavit need not be filed in cases where the

3-1 defendant has waived a preliminary examination, or upon a preliminary

3-2 examination has been bound over to appear at the court having jurisdiction.

3-3 3. The] prosecuting attorney may request the district court to

3-4 determine whether the justice of the peace or other examining officer or

3-5 magistrate committed plain error by discharging the defendant on the

3-6 offense. To make such a request, the prosecuting attorney must:

3-7 (a) File the request, in writing, with the district court not later than 15

3-8 days after the date on which the defendant was discharged on the

3-9 offense; and

3-10 (b) Include with the request a certified copy of the transcript of the

3-11 preliminary examination that is prepared pursuant to NRS 171.198.

3-12 3. The prosecuting attorney may include supporting legal points and

3-13 authorities with a written request filed pursuant to subsection 2. In

3-14 response to such a written request, the defendant may file opposing legal

3-15 points and authorities not later than 10 days after the date on which the

3-16 written request is filed by the prosecuting attorney. The prosecuting

3-17 attorney and the defendant may not present any additional testimony,

3-18 affidavits or other evidence to the district court.

3-19 4. If the prosecuting attorney files a written request pursuant to

3-20 subsection 2, the district court shall, for each offense for which the

3-21 defendant was discharged, determine whether the justice of the peace or

3-22 other examining officer or magistrate committed plain error by

3-23 discharging the defendant on the offense. The district court shall make

3-24 its determination based upon the evidence contained in the transcript of

3-25 the preliminary examination and any supporting or opposing legal points

3-26 and authorities that have been timely filed by the prosecuting attorney

3-27 and the defendant. In making its determination, the district court shall

3-28 not consider any additional testimony, affidavits or other evidence.

3-29 5. If the district court determines that the justice of the peace or

3-30 other examining officer or magistrate committed plain error by

3-31 discharging the defendant on the offense, the prosecuting attorney may

3-32 file an information against the defendant for that offense pursuant to

3-33 subsection 6.

3-34 6. An information must be filed [within] against a defendant not later

3-35 than 15 days after the [holding or waiver of the] date on which:

3-36 (a) The defendant waives his right to a preliminary examination;

3-37 (b) The defendant is bound over to appear before the district court

3-38 after having had a preliminary examination [.] ; or

3-39 (c) The district court makes a determination pursuant to subsection 5

3-40 that the justice of the peace or other examining officer or magistrate

3-41 committed plain error by discharging the defendant on the offense.

3-42 7. Each information must set forth the [crime] offense committed

3-43 according to the facts.

4-1 [4.] 8. If, with the consent of the prosecuting attorney, a defendant

4-2 waives his right to a preliminary examination in accordance with an

4-3 agreement by the defendant to plead guilty, guilty but mentally ill or nolo

4-4 contendere to a lesser charge or at least one but not all, of the initial

4-5 charges, the information filed against the defendant pursuant to this section

4-6 may contain only the offense or offenses to which the defendant has agreed

4-7 to enter a plea of guilty, guilty but mentally ill or nolo contendere. If, for

4-8 any reason, the agreement is rejected by the district court or withdrawn by

4-9 the defendant, the prosecuting attorney may file an amended information

4-10 charging all of the offenses which were in the criminal complaint upon

4-11 which the preliminary examination was waived. The defendant must then

4-12 be arraigned in accordance with the amended information.

4-13 Sec. 3. NRS 173.055 is hereby amended to read as follows:

4-14 173.055 1. The attorney general when acting pursuant to a specific

4-15 statute or the district attorney of the proper county shall inquire into all

4-16 cases of preliminary examinations as provided by law, concerning the

4-17 commission of any offense, whether the offenders are committed to jail,

4-18 recognized or held to bail.

4-19 2. If the district attorney or the attorney general determines in any such

4-20 case that an information ought not to be filed, he shall file with the clerk of

4-21 the court having jurisdiction of the supposed offense a written statement

4-22 containing his reasons, in fact and in law, for not filing any information in

4-23 the case. The statement must be filed [within] not later than 15 days after

4-24 the [holding of the] date on which:

4-25 (a) The defendant waives his right to a preliminary examination;

4-26 (b) The defendant is bound over to appear before the district court

4-27 after having had a preliminary examination [.] ; or

4-28 (c) The district court makes a determination pursuant to NRS 173.035

4-29 that the justice of the peace or other examining officer or magistrate

4-30 committed plain error by discharging the defendant on the offense.

4-31 Sec. 4. NRS 173.095 is hereby amended to read as follows:

4-32 173.095 1. The court may permit an indictment or information to be

4-33 amended at any time before verdict or finding if no additional or different

4-34 offense is charged and if substantial rights of the defendant are not

4-35 prejudiced.

4-36 2. If an indictment is found charging a primary offense upon which a

4-37 charge of habitual criminality may be based, the prosecuting attorney may

4-38 file a notice of habitual criminality with the court. If an indictment is found

4-39 charging a primary offense upon which a charge of:

4-40 (a) Habitually fraudulent felon may be based, the prosecuting attorney

4-41 shall file a notice of habitually fraudulent felon with the court.

4-42 (b) Habitual felon may be based, the prosecuting attorney shall file a

4-43 notice of habitual felon with the court.

5-1 3. The court shall permit an information to be amended pursuant to

5-2 subsection [4] 8 of NRS 173.035.

5-3 Sec. 5. NRS 178.556 is hereby amended to read as follows:

5-4 178.556 1. [If no] The district court may dismiss the complaint if:

5-5 (a) An indictment is not found or an information is not filed against [a

5-6 person] the defendant within 15 days after he has been held to answer for a

5-7 public offense [which] that must be prosecuted by indictment or

5-8 information [, the court may dismiss the complaint.] ; or

5-9 (b) An information is not filed against the defendant within 15 days

5-10 after the district court has made a determination pursuant to NRS

5-11 173.035 that the justice of the peace or other examining officer or

5-12 magistrate committed plain error by discharging the defendant on the

5-13 offense.

5-14 2. If a defendant whose trial has not been postponed upon his

5-15 application is not brought to trial within 60 days after the arraignment on

5-16 the indictment or information, the district court may dismiss the indictment

5-17 or information.

5-18 [2.] 3. If a defendant whose trial has not been postponed upon his

5-19 application is not brought to trial within 60 days after the arraignment on

5-20 the complaint for an offense triable in a justice’s or municipal court, the

5-21 court may dismiss the complaint.

5-22 Sec. 6. NRS 178.562 is hereby amended to read as follows:

5-23 178.562 1. Except as otherwise provided in NRS 174.085, an order

5-24 for the dismissal of the action, as provided in NRS 178.554 and 178.556, is

5-25 a bar to another prosecution for the same offense.

5-26 2. The discharge of a [person accused] defendant upon preliminary

5-27 examination is a bar to another complaint against [him] the defendant for

5-28 the same offense, but does not bar the finding of an indictment or filing of

5-29 an information.

5-30 3. The determination of a district court pursuant to NRS 173.035

5-31 that the justice of the peace or other examining officer or magistrate did

5-32 not commit plain error by discharging the defendant on an offense is a

5-33 bar to the filing of an information against the defendant for the same

5-34 offense, but does not bar the finding of an indictment.

5-35 Sec. 7. The amendatory provisions of this act do not apply to a

5-36 criminal action in which an indictment has been found or a complaint or

5-37 information has been filed before the effective date of this act.

5-38 Sec. 8. This act becomes effective upon passage and approval.

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