Sheriff v. Menendez

¶1OPINION

¶2Respondent was arrested for alleged drug-related offenses on February 23, 1981. A preliminary hearing was scheduled immediately, but, as a result of numerous continuances, no preliminary hearing was ever held.

¶3On February 11, 1982, respondent was indicted on four counts by a grand jury. Respondent subsequently sought and obtained in district court a permanent writ of habeas corpus and a dismissal of the indictment. This appeal followed.

¶4Respondent’s principal contention in support of his petition to the district court was that prior to obtaining the indictment against him, the state had exhibited a conscious indifference toward his rights. Respondent based this contention on the fact that five continuances of the preliminary hearing were granted.

¶5Whether the prosecution has displayed conscious indifference is a factual determination. To support such a finding, a defendant need not demonstrate that the conduct being challenged occurred intentionally or as a result of calculated bad faith. State v. Lamb, 97 Nev. 609, 637 P.2d 1201 (1981). However, the dereliction must be greater than what the record shows here. Although five continuances were obtained, all but two were pursuant to stipulation. The last continuance was at *432respondent’s sole request, and only the first continuance was obtained by the state over respondent’s objection.1

¶6The record in this case does not support the district court’s determination that the prosecution exhibited a conscious indifference toward respondent’s rights. Accordingly, we reverse the order of the district court granting the pretrial petition for a writ of habeas corpus, and we remand the case to the district court with directions to reinstate the indictment.2