Summary
holding that a noncompliant petition is "neither cognizable below nor reviewable here"
Summary of this case from Yandell v. StateOpinion
No. 12139
September 24, 1979
Appeal from Eighth Judicial District Court, Clark County; Michael J. Wendell, Judge.
Richard H. Bryan, Attorney General, Carson City; Robert Miller, District Attorney, and Nikolas L. Mastrangelo, Deputy District Attorney, Clark County, for Appellant.
Alan R. Johns, Las Vegas, for Respondent.
OPINION
The respondent, charged by complaint with embezzlement (NRS 205.300), failed to appear at his scheduled preliminary examination. The justice's court treated respondent's failure to appear as a waiver of his right to a preliminary examination, and based upon the affidavits attached to the complaint, the justice's court found probable cause to hold respondent to answer in the district court. Thereafter, appellant filed a pretrial petition for a writ of habeas corpus in the district court. The petition was granted by the district court, and from that order, this appeal has been perfected.
We are constrained to reverse the order of the district court without consideration of the merits. Respondent was arraigned in the district court on May 21, 1979. His pretrial petition for a writ of habeas corpus was not filed until June 21, 1979, a full 31 days after arraignment. Pretrial petitions for writs of habeas corpus are required to be filed within 21 days of the initial appearance of the accused in district court. NRS 34.375(1)(a). Our prior decisions have established that the first appearance in district court is arraignment. See Palmer v. Sheriff, 93 Nev. 648, 572 P.2d 218 (1977). Thus, the instant petition was not in compliance with the filing requirements of NRS 34.375(1)(a). The requirements of this statute are mandatory, and where, as here, the requirements are not complied with, the petition is neither cognizable below nor reviewable here. See Sheriff v. Toston, 93 Nev. 394, 566 P.2d 411 (1977). Accordingly, we reverse and remand the case to the district court with instructions to dismiss the petition.