IN THE SUPREME COURT OF THE STATE OF NEVADA
JACK PAUL BANKA, No. 83381
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
FILED
IN AND FOR THE COUNTY OF CLARK;
AND THE HONORABLE JASMIN D.
LILLY-SPELLS, DISTRICT JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
ORDER DENYING PETITION
This original petition for a writ of habeas corpus or,
alternatively, a writ of mandamus challenges the district court's decision to
grant the State's motion to file a third amended information. We decline to
entertain the petition. See Gathrite v. Eighth Judicial Dist. Court, 135 Nev.
405, 407, 451 P.3d 891, 893 (2019) (Issuance of an extraordinary writ is
purely discretionary.").
"An application for an original writ of habeas corpus should be
made to the appropriate district court." NRAP 22. Petitioner is legally
restrained pursuant to an information. Cf. NRS 34.360 (recognizing the
availability of habeas corpus relief where the petitioner is "unlawfully
committed, detained, confined or restrained of his or her liberty"). Contrary
to petitioner's argument, the writ of habeas corpus under Nevada
Constitution, Article 1, Section 5 is not suspended when this court declines
to entertain an original habeas corpus petition challenging the validity of a
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charging document. To determine otherwise would require this court to
involve itself in resolving factual disputes that are best resolved in the
district court. See generally Round Hill Gen. Improvement Dist. v. Newman,
97 Nev. 601, 604, 637 P.2d 534, 536 (1981) (recognizing "an appellate court
is not an appropriate forum in which to resolve disputed questions of fact"
in an original proceeding).
A writ of mandamus is traditionally available to compel the
performance of a legal duty or "to control a manifest abuse or arbitrary or
capricious exercise of discretion." State v. Eighth Judicial Dist. Court
(Armstrong), 127 Nev. 927, 931, 267 P.3d 777, 779 (2011) (internal citation
omitted); see also NRS 34.160; Round Hill, 97 Nev. at 603-04, 637 P.2d at
536. But a writ of mandamus is an extraordinary remedy, and it is
generally not available when the petitioner has "a plain, speedy and
adequate remedy in the ordinary course of law." NRS 34.170; see also
Walker v. Second Judicial Dist. Court, 136 Nev., Adv. Op. 80, 476 P.3d 1194,
1197 (2020) ("Because mandamus is an extraordinary remedy, this court
does not typically employ it where ordinary means, already afforded by law,
permit the correction of alleged errors."). This court has previously
recognized that an appeal provides an adequate legal remedy. Walker, 476
P.3d at 1197. Here, petitioner may challenge the district court's decision to
allow the State to file a third amended judgment of conviction on direct
appeal if he is convicted. See NRS 177.015(3) (providing a defendant may
appeal from a final judgment); NRS 177.045 (recognizing that an appeal
may include challenges to intermediate decisions of the district court). And
this "remedy does not fail to be speedy and adequate, because, by pursuing
it through the ordinary course of law, more time probably would be
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consumed than in a mandamus proceeding." Walker, 476 P.3d at 1198
(internal quotation marks omitted). Accordingly, we
ORDER the petition DENIED.
C.J.
Parraguirre
vecLA-t-, J.
Hardesty
J.
cc: Hon. Jasmin D. Lilly-Spells, District Judge
The Pariente Law Firm, P.C.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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(01 I947A <42i5t.