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Parsons v. State10/23/2000
Appellant David Earl Parsons was convicted, pursuant to a jury verdict, of felony driving under the influence in violation of NRS 484.379 and NRS 484.3792(1)(c). On appeal, a panel of this court reversed the conviction, concluding that the district court erred by permitting the State to file an information by affidavit pursuant to NRS 173.035(2). See Parsons v. State, 115 Nev. 91, 978 P.2d 963 (1999). The State filed a petition for rehearing, which was denied by the three-justice panel. The State then filed a petition for en banc reconsideration.
The primary concern raised in the petition is whether the constitutional validity of the prior DUI convictions used to enhance the instant offense to a felony was properly the subject of the preliminary examination in justice's court. We conclude that this is a substantial public policy issue and, therefore, en banc reconsideration is warranted. See NRAP 40A(a). We further conclude that the constitutional validity of a prior conviction that is being used for enhancement purposes is not at issue at the preliminary examination stage of a criminal proceeding. However, we conclude that the three-justice panel was correct to reverse the conviction in this case because, under the particular circumstances of this case, the district court erred by permitting the State to file an information by affidavit. We therefore grant reconsideration, but reverse the judgment of conviction.
PROCEDURAL HISTORY AND FACTS
This case has a rather long and tortured procedural history that begins in December 1991, when the State charged Parsons by criminal complaint with one count of felony driving under the influence (DUI) in violation of NRS 484.379 and NRS 484.3792(1)(c). The State alleged that Parsons had two prior DUI offenses within the preceding 7 years: (1) an arrest on November 21, 1987, and conviction on April 15, 1988, in Flagstaff, Arizona; and (2) an arrest on September 9, 1990, and conviction on December 13, 1990, in Beatty, Nevada.
During the preliminary examination in justice's court, Parsons challenged the constitutional validity of the Beatty conviction. Parsons moved to have the felony offense "stricken down to a second offense DUI" on the ground that the complaint charging him with a second-offense DUI in Beatty had been improper because it incorrectly stated the location of his first DUI offense. Parsons therefore requested that the justice's court permit him to enter a plea to a second offense DUI and receive his sentence.
The justice's court, having personal knowledge of the Beatty proceedings, opined that if Parsons had had effective counsel at the time of his hearing on the Beatty DUI the problem with the complaint would have been noted and the charge could have been dismissed or reduced to a first-offense DUI. The justice's court also noted that the complaint in the instant case listed the prior offenses correctly. Nonetheless, the justice's court went on to "strike the complaint" and allow Parsons to enter a guilty plea to a second-offense misdemeanor DUI charge. The justice's court sentenced Parsons to 30 days in jail, to be served intermittently, and ordered Parsons to pay an $800.00 fine. Parsons subsequently fled the jurisdiction without serving the sentence or paying the fine.
After unsuccessfully attempting to appeal the judgment to the district court, the State filed a petition for a writ of certiorari in the district court. The district court granted the petition, issuing an order nullifying Parsons' conviction and rescheduling the preliminary examination in justice's court.
Parsons filed a petition for a writ of mandamus or prohibition in this court. Parsons asked
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