Petitioner Danielle Sove was tried and convicted of driving
under the influence. She was sentenced to a $585 fine, Victim Impact
Panel, and DUI School. On appeal, the district court reversed her
conviction based on error concerning the admission of evidence in violation
of City of Reno v. Howard, 130 Nev. , 318 P.3d 1063 (2014), and
remanded the matter to the justice court for a new trial.
Because a petition for an extraordinary writ is addressed to
this court's sound discretion, Zamarripa v. First Judicial Dist. Court, 103
Nev. 638, 640, 747 P.2d 1386, 1387 (1987); State ex rel. Dep't of Transp. v.
Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983); Poulos v. Eighth
Judicial Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982), the
threshold issue is whether we should exercise that discretion and consider
the petition. Extraordinary relief may be appropriate where a tribunal,
board, or officer has exceeded its jurisdiction or acted in an arbitrary or
capricious manner, or such relief may be used to compel the performance
of an act required by law. See NRS 34.160; Zamarippa, 103 Nev. at 640,
747 P.2d at 1387; Round Hill Gen. Improvement Dist. v. Newman, 97 Nev.
601, 603-04, 637 P.2d 534, 536 (1981). This court will not entertain a
petition when the petitioner has a plain, speedy, and adequate remedy at
law. NRS 34.020(2) (certiorari); NRS 34.170 (mandamus); NRS 34.330
(prohibition). When exercising its discretion, this court may entertain
...continued
did not consider the constitutionality of the statute, we determine that
neither a writ of certiorari nor a writ of prohibition is the appropriate
mechanism for this matter.
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petitions for extraordinary relief when judicial economy and sound judicial
administration militate in favor of writ review. See State v. Babayan, 106
Nev. 155, 174, 787 P.2d 805, 819-20 (1990). Additionally, this court may
exercise its discretion and entertain a writ petition when "an important
issue of law requires clarification." State v. Second Judicial Dist. Court
(Epperson), 120 Nev. 254, 258, 89 P.3d 663, 665-66 (2004) (quotation
marks omitted).
Sove contends that, as she has served the underlying sentence,
the district court should have reversed and vacated the conviction. She
contends that the cost of defending another trial has a chilling effect on
the desire to participate in the appellate process and thus violates due
process. Further, judicial economy is served by not retrying matters the
legislature has deemed petty.
We conclude that writ review is unwarranted. Sove prevailed
on appeal to the district court. Her conviction was reversed and her case
was remanded to the justice court for a new trial. If she is tried and
convicted again, the punishment that she has already endured must be
credited against any new sentence imposed. North Carolina v. Pearce, 395
U.S. 711, 717-19 (1969), overruled on other grounds by Alabama v. Smith,
490 U.S. 794 (1989). Sove failed to demonstrate that the district court's
decision to remand for a new trial to remedy the evidentiary error was
manifestly unreasonable, see Stephans v. State, 127 Nev. „ 262
P.3d 727, 734 (2011) (providing where evidence admitted at trial was
sufficient to sustain the conviction, the remedy for evidentiary error is
reversal and remand for new trial), or an arbitrary or capricious exercise
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of its discretion, see State v. Eighth Judicial Dist. Court (Armstrong), 127
Nev. „ 267 P.3d 777, 780 (2011) ("An arbitrary or capricious
exercise of discretion is one founded on prejudice or preference rather than
on reason, or contrary to the evidence or established rules of law."
(quotation marks and citation omitted)). Accordingly, we
ORDER the petition DENIED.
J.
Hardesty
J.
Douglas
J.
cc: Hon. Rob Bare, District Judge
Mueller Hinds & Associates
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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