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.
SUPREME COURT
OF
NEVADA
2
(0) 1947A -43
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
4
(0) 1947A <