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Parsons v. State10/23/2000
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However, the legislature has provided that where the principal offense is alleged to be a felony, the facts concerning a prior offense must be shown at the preliminary examination. Specifically, NRS 484.3792(2) provides:
The facts concerning a prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing and, if the principal offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the grand jury.
We must then determine what facts concerning a prior offense must be shown at the preliminary examination.
The statute provides that the "facts concerning a prior offense" must be alleged in the charging document and shown at the preliminary examination. We previously have dealt with the requirement as to the facts that must be alleged in the charging document. In that context, we have indicated that the purpose of subsection (2) is to put the defendant in a DUI case on notice of the possible penalties faced and provide the defendant with enough information to challenge the validity of alleged prior convictions. See Dressler v. State, 107 Nev. 686, 689, 819 P.2d 1288, 1289-90 (1991). We have indicated that the facts concerning the prior convictions that must be alleged in the charging document include the dates of the prior offenses and convictions and the locations where the prior offenses occurred or the courts that entered the prior convictions. See Phipps v. State, 111 Nev. 1276, 903 P.2d 820 (1995); Dressler, 107 Nev. at 689-90, 819 P.2d at 1289-90. These facts must also be shown at the preliminary examination because they permit the justice's court to determine whether there is probable cause to believe that the defendant has two or more prior offenses within seven years for the same or similar conduct. See NRS 484.3792(1)(c)&(8). These facts are sufficient to find probable cause to believe the defendant has committed a felony.
The particular question implicated in this case, and mentioned in dicta in Parsons I, is whether the constitutional validity of the prior convictions for enhancement purposes is properly the subject of a preliminary examination in a felony DUI case. We conclude that it is not.
The language of NRS 484.3792(2) does not require that the constitutional validity of the prior convictions be established at the preliminary examination. The statute provides only that the "facts concerning a prior offense" must be shown at the preliminary examination. It is clear from the way the statute is constructed that the same facts must be alleged in the charging document. We have never required that facts establishing the constitutional validity of a prior offense be alleged in the charging document. While the requirement that the facts concerning the prior offense be alleged in the charging document appears to be addressed to concerns of fair notice regarding the penalty faced by the defendant, the requirement that the same facts be shown at the preliminary examination appears to be addressed to concerns that the State be able to substantiate the existence of the prior offenses before being permitted to proceed on a felony charge. We conclude that this concern is adequately met where the State presents evidence that the defendant has convictions for two or more offenses, as defined by NRS 484.3792(8), within 7 years of the charged offense. The constitutional validity of prior convictions being offered for enhancement purposes, a requirement that grows out of decisional law and not the statute, is for the trial court to determine at, or anytime before, sentencing. See Ronning v. State, 116 Nev. _
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