                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                FRANK JAMES BERWICK,                                     No. 70049
                Petitioner,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                                                                                 FILED
                IN AND FOR THE COUNTY OF                                          JUN 1 6 2016
                CLARK; AND THE HONORABLE                                         TZA. IE K. LINEJEMAN
                                                                             CLEic s              E \ • 1 RT
                VALERIE ADAIR, DISTRICT JUDGE,                              SY         a
                Respondents,                                                      HI LYPIA CLERK


                and
                THE STATE OF NEVADA,
                Real Party in Interest.

                                       ORDER DENYING PETITION
                             This is a petition for a writ of mandamus challenging the
                district court's order dishonorably discharging petitioner from probation.
                Petitioner contends that the district court violated his due process rights
                and abused its discretion by ordering that he be dishonorably discharged
                from probation without giving him noticeS or opportunity to be heard. He
                asks this court to direct the district court to enter an order of honorable
                discharge.
                             "A writ of mandamus is available to compel the performance of
                an act that the law requires as a duty resulting from an office, trust, or
                station or to control an arbitrary or capricious exercise of discretion."            Int'l
                Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
                P.3d 556, 558 (2008) (internal citation • omitted); see also NRS 34.160.
                Whether to consider a writ petition is within this court's discretion, Smith
                v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851




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                (1991), and a petitioner bears the burden of demonstrating that
                extraordinary relief is warranted, Pan v. Eighth Judicial Dist. Court, 120
                Nev. 222, 228, 88 P.3d 840, 844 (2004).
                            We conclude that petitioner fails to demonstrate that
                extraordinary relief is warranted. First, petitioner fails to demonstrate
                that his due process rights were violated by the lack of notice and a
                hearing. Procedural due process is implicated when a governmental
                decision deprives an individual of a "liberty" or "property" interest.
                Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Petitioner identifies no
                liberty or property interest of which he was deprived when he was
                dishonorably discharged from probation. His reliance on case law
                requiring due process procedures for probation revocation proceedings is
                misplaced, as unlike a revocation proceeding, a dishonorable discharge
                does not involve the possibility of incarceration.      See NRS 176A.870.
                Further, to the extent that he claims that he was entitled to a hearing on
                his ability to pay restitution and fees, the basis for the dishonorable
                discharge was his violation of other conditions of probation, not his failure
                to pay restitution and fees, and thus no hearing on that issue was required
                before he could be discharged. See NRS 176A.850(1)(a); NRS 176A.870.
                            Petitioner also fails to demonstrate an abuse of discretion.
                The record indicates, and he does not dispute, that he violated several
                conditions, including house arrest and compliance with veteran's court,
                during his period of probation. Thus, the district court properly found that
                he failed to "fulfill] ] the conditions of probation for the entire period
                thereof," as required for honorable discharge, NRS 176A.850(1), and did




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                not abuse its discretion in ordering him dishonorably discharged from
                probation. Accordingly, we
                           ORDER the petition DENIED.



                                                               163,07.%           , J.
                                                           Douglas




                                                           Gibbons




                cc:   Hon. Valerie Adair, District Judge
                      Clark County Public Defender
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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