Opinion
No. 56190.
07-15-2010
Nickolas Mark ANDREWS, Petitioner, v. The SIXTH JUDICIAL DISTRICT COURT of the State of Nevada, in and for the COUNTY OF HUMBOLDT, and the Honorable Michael R. Montero, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
Marc Picker Attorney General/Carson City Pershing County District Attorney
Marc Picker
Attorney General/Carson City
Pershing County District Attorney
ORDER DENYING PETITION
This original petition for a writ of prohibition challenges a district court order permitting the real party in interest to amend an information by affidavit. Petitioner was charged in the alternative with two counts of attempted murder with the use of a deadly weapon and discharging a firearm at or into a structure, vehicle, aircraft, or watercraft. After the preliminary hearing, the justice court bound petitioner over on only one alternative in each count. The district court permitted the real party in interest to amend the information by affidavit pursuant to NRS 173.035(2), concluding that the justice court committed egregious error by not binding petitioner over on the alternative charges as they were supported by probable cause.
NRS 173.035(2)"contemplates a safeguard against egregious error by a magistrate in determining probable cause, not a device to be used by a prosecutor to satisfy deficiencies in evidence at a preliminary examination, through affidavit." Cranford v. Smart, 92 Nev. 89, 91, 545 P.2d 1162, 1163 (1976); see Parsons v. State, 115 Nev. 91, 93, 978 P.2d 963, 964 (1999), on reconsideration en banc, 116 Nev. 928, 10 P.3d 836 (2000); State of Nevada v. District Court, 114 Nev. 739, 741–42, 964 P.2d 48, 49 (1998). Here, petitioner failed to provide an adequate record, most notably a complete preliminary hearing transcript, thereby precluding a full review of this matter. Considering the documents before us, including the pleadings below and the district court's detailed order, we conclude that petitioner failed to demonstrate that the district court exceeded its jurisdiction, see NRS 34.320, in determining that the justice court committed egregious error by refusing to bind petitioner over on the challenged alternative charges. Accordingly, we
Although petitioner argues that the preliminary hearing evidence was insufficient to establish probable cause, the real party in interest's pleadings below and the district court's order indicate that the evidence was more robust than petitioner represents here.