566 P.2d 1129 | Nev. | 1977
OPINION
The State moved to continue a scheduled preliminary examination since an essential witness was not available. The motion was properly supported by affidavit. DCR 21; Hill v. Sheriff, 85 Nev. 234, 452 P.2d 218 (1964). A continuance was granted.
The State did refile. Luckett once more filed a petition for habeas corpus contending that the State was barred from refiling identical charges. His petition was denied, and he has appealed to this Court. We affirm.
The district court ruling on the first petition for habeas corpus is ambiguous. By ruling that the justice of the peace should not have continued the preliminary hearing, that court impliedly found either a willful failure on the part of the prosecutor to comply with important procedural rules (Maes v. Sheriff, 86 Nev. 317, 468 P.2d 332 (1970)), or a conscious indifference to them (State v. Austin, 87 Nev. 81, 482 P.2d 284 (1971)). When this occurs, a second prosecution is barred. McNair v. Sheriff, 89 Nev. 434, 514 P.2d 1175 (1973). On the other hand, when the court granted the State the right to refile identical charges, it impliedly found that the prosecutor had not been guilty of either a willful disregard of important procedural rules or a conscious indifference to them. In such circumstance, a second prosecution is not barred. Stockton v. Sheriff, 87 Nev. 94, 482 P.2d 285 (1971).
Although the district court’s order concerning the first petition for habeas corpus is ambiguous, and it is suggested that the only means of insuring justice to the accused is to preclude a refiling of the charges, we hold that, in these circumstances, such refiling is permissible where the prosecutor’s conduct does not rise to the aggravated level contemplated by Maes, Id., and Austin, Id. The prosecutor had complied with procedural requirements. Consequently, the State may proceed with the charges against Luckett.
Affirmed.