IN THE SUPREME COURT OF THE STATE OF NEVADA
FRANK JAMES BERWICK, No. 70049
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
FILED
IN AND FOR THE COUNTY OF JUN 1 6 2016
CLARK; AND THE HONORABLE TZA. IE K. LINEJEMAN
CLEic s E \ • 1 RT
VALERIE ADAIR, DISTRICT JUDGE, SY a
Respondents, HI LYPIA CLERK
and
THE STATE OF NEVADA,
Real Party in Interest.
ORDER DENYING PETITION
This is a petition for a writ of mandamus challenging the
district court's order dishonorably discharging petitioner from probation.
Petitioner contends that the district court violated his due process rights
and abused its discretion by ordering that he be dishonorably discharged
from probation without giving him noticeS or opportunity to be heard. He
asks this court to direct the district court to enter an order of honorable
discharge.
"A writ of mandamus is available to compel the performance of
an act that the law requires as a duty resulting from an office, trust, or
station or to control an arbitrary or capricious exercise of discretion." Int'l
Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
P.3d 556, 558 (2008) (internal citation • omitted); see also NRS 34.160.
Whether to consider a writ petition is within this court's discretion, Smith
v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851
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(1991), and a petitioner bears the burden of demonstrating that
extraordinary relief is warranted, Pan v. Eighth Judicial Dist. Court, 120
Nev. 222, 228, 88 P.3d 840, 844 (2004).
We conclude that petitioner fails to demonstrate that
extraordinary relief is warranted. First, petitioner fails to demonstrate
that his due process rights were violated by the lack of notice and a
hearing. Procedural due process is implicated when a governmental
decision deprives an individual of a "liberty" or "property" interest.
Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Petitioner identifies no
liberty or property interest of which he was deprived when he was
dishonorably discharged from probation. His reliance on case law
requiring due process procedures for probation revocation proceedings is
misplaced, as unlike a revocation proceeding, a dishonorable discharge
does not involve the possibility of incarceration. See NRS 176A.870.
Further, to the extent that he claims that he was entitled to a hearing on
his ability to pay restitution and fees, the basis for the dishonorable
discharge was his violation of other conditions of probation, not his failure
to pay restitution and fees, and thus no hearing on that issue was required
before he could be discharged. See NRS 176A.850(1)(a); NRS 176A.870.
Petitioner also fails to demonstrate an abuse of discretion.
The record indicates, and he does not dispute, that he violated several
conditions, including house arrest and compliance with veteran's court,
during his period of probation. Thus, the district court properly found that
he failed to "fulfill] ] the conditions of probation for the entire period
thereof," as required for honorable discharge, NRS 176A.850(1), and did
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not abuse its discretion in ordering him dishonorably discharged from
probation. Accordingly, we
ORDER the petition DENIED.
163,07.% , J.
Douglas
Gibbons
cc: Hon. Valerie Adair, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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