                                                         i31 Nev., Advance Opinion              413
                          IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                    MATTHEW LEON MOULTRIE,                                 No. 65390
                    Appellant,
                    vs.
                                                                              8      Lc; Luol
                    THE STATE OF NEVADA,
                    Respondent.
                                                                              DEC 2 4 2015
                                                                             TRPCIB K LINDEMAN
                                                                          CLERK OFJPREME COURT
                                                                         BY        •
                                                                                  DEPUTY CLERK
                                Appeal from a judgment of conviction, pursuant to a
                    conditional guilty plea, of possession of a controlled substance with intent
                    to sell, a category D felony under NRS 453.337(2)(a). Fifth Judicial
                    District Court, Esmeralda County; Robert W. Lane, Judge.
                                Affirmed.

                    Law Offices of Chris Arabia, PC, and Christopher R. Arabia, Las Vegas,
                    for Appellant.

                    Adam Paul Laxalt, Attorney General, Carson City; and Robert E.
                    Glennen, III, District Attorney, Esmeralda County,
                    for Respondent.




                    BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

                                                     OPINION
                    By the Court, GIBBONS, C.J.:
                                In this appeal, we address whether a district court abused its
                    discretion by allowing the State to file an information by affidavit more
                    than 15 days after the preliminary examination concluded where the
                    defendant was discharged but was not prejudiced by the delay.
                    Additionally, we define the term "egregious error" and address whether a
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                   justice court commits egregious error if the error results in the dismissal
                   of a charge or discharge of a criminal defendant for lack of probable cause.
                                         STATEMENT OF THE FACTS
                               Appellant Matthew Moultrie was a passenger in a car stopped
                   for a traffic violation by Deputy Sheriff Matthew Kirkland. The driver
                   orally consented to a search of the car. Kirkland discovered a backpack on
                   the seat or floor behind Moultrie that contained fifty dollars, a glass pipe,
                   and a plastic bag holding a crystalline substance. Moultrie claimed the
                   items belonged to someone else. Kirkland arrested Moultrie for drug
                   possession because Kirkland believed the substance was
                   methamphetamine and it belonged to Moultrie. Moultrie admitted
                   ownership of the items after being advised of his Miranda' rights and
                   admitted he planned to sell the drugs. The substance tested
                   presumptively positive for amphetamine.
                               The Justice Court of Esmeralda Township held a preliminary
                   examination, and the State called Kirkland and another deputy as
                   witnesses. Moultrie objected on hearsay grounds to Kirkland's testimony
                   that the driver provided oral consent for a search of the car, and the
                   justice court sustained the objection. Moultrie then objected to any
                   testimony about evidence seized during the search as fruit of the
                   poisonous tree. The justice court briefly inquired into whether there was
                   consent to search the backpack, but no testimony was given and no ruling
                   was made. The justice court allowed the hearing to proceed but ultimately
                   excluded the testimony describing the evidence seized during the search.




                         'Miranda v. Arizona, 384 U.S. 436 (1966).


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                               Possession of a controlled substance with intent to sell is a
                   category D felony under NRS 453.337(2)(a). It is a category C felony if the
                   defendant has a prior conviction and is convicted under NRS
                   453.337(2)(b). The State charged Moultrie in the criminal complaint with
                   the category C felony but did not allege a prior conviction in the complaint
                   or produce any evidence at the preliminary examination demonstrating
                   that a prior conviction existed. During its rebuttal closing argument, the
                   State moved to amend the complaint to charge Moultrie under NRS
                   453.337(2)(a) in order to conform to the evidence produced. The justice
                   court denied the State's motion. The justice court concluded that the State
                   did not meet its burden of proof for the category C felony and discharged
                   Moultrie.
                               The State moved for leave to file an information by affidavit in
                   the district court and included a proposed information charging Moultrie
                   with the category D felony, asserting egregious error by the justice court.
                   The State filed the motion 63 days after the justice court discharged
                   Moultrie. Moultrie opposed the State's motion, claiming the motion was
                   untimely, was filed without good cause for the delay, and was prejudicial.
                   Moultrie also responded that the justice court did not commit egregious
                   error; therefore, the State had no basis to file an information by affidavit.
                               The district court granted the State's motion 34 days after it
                   was filed, concluding the State presented sufficient evidence during the
                   preliminary examination to support a finding of probable cause for the
                   category D felony. Additionally, the district court concluded that (I) the
                   State's delay in filing the motion did not prejudice Moultrie, (2) the justice
                   court committed egregious error by sustaining Moultrie's hearsay



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                   objection, and (3) the justice court committed egregious error by denying
                   the State's motion to amend the complaint.
                               Moultrie pleaded guilty as charged but reserved the right to
                   appeal the district court's order granting the State's motion to file an
                   information.   See NRS 174.035(3). The district court imposed a prison
                   sentence of 19 to 48 months but suspended it and placed Moultrie on
                   probation for five years. This appeal follows.
                                                    ANALYSIS
                   Timeliness of the motion
                               Moultrie first contends that the district court erred by
                   permitting the State to file an information by affidavit when the State
                   filed its motion for leave of court 63 days after he was discharged by the
                   justice court. We disagree.
                               It is within the discretion of the district court to grant a
                   motion to file an information by affidavit.       See NRS 173.035(2). To
                   establish that the district court abused its discretion by granting a motion
                   to file an information by affidavit more than 15 days after the preliminary
                   examination, 2 the defendant must demonstrate actual prejudice resulting


                         2Although not argued below or on appeal, we note that applying the
                   15-day time limit to the filing of an information by affidavit pursuant to
                   NRS 173.035(2) is problematic. Pursuant to NRS 173.035(3), an
                   information must be filed within 15 days of the holding of a preliminary
                   examination. If a defendant is held to answer, the State exercises an
                   executive or administrative function by filing the information in district
                   court. See NRS 173.045. The 15-day limitation is a logical restriction in
                   the case of a defendant being held to answer because filing an information
                   simply involves retitling the complaint as an information and endorsing
                   the names of witnesses. Id. If a defendant is discharged, however, an
                   information by affidavit may only be filed if the State first obtains leave of
                   court, a judicial decision, without a statutory- or rule-imposed deadline on
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                   from the untimely filing. See, e.g., Berry v. Sheriff, Clark Cnty., 93 Nev.
                   557, 558-59, 571 P.2d 109, 110 (1977) (holding that where no prejudice
                   was demonstrated, the district court did not abuse its discretion by
                   denying a motion to dismiss an information that was filed more than 15
                   days after the preliminary examination); Thompson v. State, 86 Nev. 682,
                   683, 475 P.2d 96, 97 (1970) (same). The prejudice alleged cannot be
                   hypothetical or speculative. See Wyman v. State, 125 Nev. 592, 601, 217
                   P.3d 572, 579 (2009) (rejecting claim of prejudice resulting from pre-
                   indictment delay where the defendant failed "to make a particularized
                   showing of actual, nonspeculative prejudice resulting from the delay");
                   State v. Autry,     103 Nev. 552, 555-56, 746 P.2d 637, 639-40 (1987)
                   (reversing district court order granting a pretrial petition for a writ of
                   habeas corpus where defendant's claims of prejudice were speculative and
                   premature).
                                 Here, the State did not file the motion for leave of court to file
                   an information by affidavit until 63 days after the preliminary
                   examination. 3 Moultrie asserted he was prejudiced by the delay because


                   ...continued
                   the court. See NRS 173.035(2). The State is thus put in an untenable
                   position because it cannot comply with the time requirement in NRS
                   173.035(3) without judicial sanction, in contrast to when a defendant is
                   held to answer. Therefore, the only deadline the State could meet would
                   be with regard to its motion for leave to file the information by affidavit.
                   CI NRS 34.700 (defendant may challenge the commitment to district court
                   by filing a pretrial petition for writ of habeas corpus within 21 days of the
                   first appearance in district court).

                         3 The district court granted the motion for leave to file the
                   information by affidavit 97 days after the preliminary examination was
                   conducted; the information was filed 9 days after that order was signed.


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                   he did not confer with counsel or pursue any defense as he did not know
                   he could be recharged. He also claimed that the effectiveness of his
                   defense was diminished because he did not live in Esmeralda County. The
                   district court concluded that Moultrie's allegations of prejudice were
                   speculative and did not warrant denial of the motion.
                                Although Moultrie asserted he did not confer with counsel or
                   pursue any defense because he was unaware that he could be recharged,
                   Moultrie failed to allege how this lack of preparation prejudiced his
                   defense, or alternatively, how conferring with counsel or establishing a
                   defense during the delay would have benefited his defense. Thus, we
                   conclude the district court did not abuse its discretion by finding that
                   Moultrie failed to demonstrate actual prejudice resulting from the delay
                   and rejecting Moultrie's request to deny the motion based on the delay.
                   See id. (concluding no actual prejudice was demonstrated where defendant
                   alleged delay rendered potential witnesses unavailable but did not allege
                   how the testimony of the absent witnesses would have benefited his
                   defense). Moreover, the fact that Moultrie did not live in Esmeralda
                   County during the delay does not demonstrate actual prejudice to
                   Moultrie's defense. 4 See id.




                         4 To the extent Moultrie asserts that the district court erred by not
                   addressing the State's failure to assert good cause for the delay in filing
                   the motion to file an information by affidavit, Moultrie fails to support the
                   claim with relevant authority and cogent argument; therefore, we decline
                   to address this claim. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3,
                   6 (1987).

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                   Egregious error
                               Moultrie asserts that the district court erred by allowing the
                   State to file an information by affidavit based on a finding that the justice
                   court committed egregious error.
                               We review a district court's determination of egregious error
                   de novo. See Martin v. Sheriff, Clark Cnty., 88 Nev. 303, 306, 496 P.2d
                   754, 755 (1972) (applying de novo review to determine whether the
                   magistrate committed egregious error). An information by affidavit may
                   be filed to correct a magistrate's egregious error but not to correct
                   deficiencies in evidence at the preliminary examination.       State v. Sixth
                   Judicial Dist. Court, 114 Nev. 739, 741-42, 964 P.2d 48, 49 (1998).
                   Although the Nevada Supreme Court has applied egregious error in
                   discussing the propriety of filing an information by affidavit on numerous
                   occasions, it has not defined the term. We take this opportunity to review
                   its usage and to clarify what constitutes egregious error.
                               The Nevada Supreme Court first addressed the purpose of
                   NRS 173.035(2) when it held that the statute "provides a safety valve
                   against an arbitrary or mistaken decision of the magistrate."        Maes v.
                   Sheriff, Clark Cnty., 86 Nev. 317, 319, 468 P.2d 332, 333 (1970), holding
                   limited in part on other grounds by Sheriff, Washoe Cnty. v. Marcus, 116
                   Nev. 188, 995 P.2d 1016 (2000). In Maes, however, the court did not
                   analyze the safeguard provision because no preliminary examination
                   occurred. In Martin, the court held, because there was sufficient evidence
                   to support the rape charge, the magistrate clearly erred by dismissing the
                   charge, and the district attorney's only course of action was to refile the
                   rape charge under NRS 173.035(2) and NRS 178.562(2). 88 Nev. at 306,
                   496 P.2d at 755.

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                               In Cranford v. Smart, the Nevada Supreme Court first used
                   the term "egregious error" in describing the safeguard provided by NRS
                   173.035(2) but did not define the term. 92 Nev. 89, 91, 545 P.2d 1162,
                   1163 (1976) ("[NRS 173.035(2)] contemplates a safeguard against
                   egregious error by a magistrate in determining probable cause, not a
                   device to be used by a prosecutor to satisfy deficiencies in evidence at a
                   preliminary examination, through affidavit."). In Feole v. State, the court
                   relied on its usage of "egregious error" in Cranford to conclude a justice
                   court did not commit egregious error when it discharged a defendant
                   based on insufficient evidence to support a finding of probable cause to
                   support the charges. 113 Nev. 628, 631, 939 P.2d 1061, 1063 (1997),
                   overruled on other grounds by State v. Sixth Judicial Dist. Court, 114 Nev.
                   739, 964 P.2d 48 (1998); see also Murphy v. State, 110 Nev. 194, 198, 871
                   P.2d 916, 918 (1994) (relying on the use of "egregious error" from Cranford
                   to determine a justice court did not commit egregious error when it
                   discharged a criminal defendant and the State had "utterly failed to
                   produce evidence •to show probable cause existed"), overruled on other
                   grounds by State v. Sixth Judicial Dist. Court, 114 Nev. 739, 964 P.2d 48
                   (1998).
                               The Nevada Supreme Court has thus applied the term
                   "egregious error" in Cranford and its progeny when a charge was
                   erroneously dismissed or a defendant was erroneously discharged based
                   on a magistrate's error. Further, the error described in those cases is
                   plain error, although that label is not used.    See Patterson v. State, 111
                   Nev. 1525, 1530, 907 P.2d 984, 987 (1995) ("An error is plain if the error is
                   so unmistakable that it reveals itself by a casual inspection of the record."
                   (internal quotation omitted)). Thus, we conclude a magistrate's error is

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                   "egregious error" when the magistrate commits plain error that affects the
                   outcome of the proceedings. See Green v. State, 119 Nev. 542, 545, 80 P.3d
                   93, 95 (2003) (stating that a court conducts plain error review by
                   determining "whether there was 'error,' whether the error was 'plain' or
                   clear, and whether the error affected the defendant's substantial rights"
                   (citing United States v. Olano, 507 U.S. 725, 734 (1993) (clarifying that an
                   error affects a party's substantial rights if it "affected the outcome of the
                   district court proceedings"))).
                         Hearsay objection and exclusion of evidence
                                During the preliminary examination, Moultrie objected to
                   Kirldand's testimony regarding the driver's consent to search as hearsay.
                   Moultrie also objected to any evidence that followed the consent as fruit of
                   the poisonous tree. The justice court sustained both objections and did not
                   consider the evidence produced as a result of the search.
                                Moultrie contends that, although the driver of the vehicle may
                   have consented to the car search, he, as the owner of the backpack, never
                   consented to a search of the backpack. Moultrie claims that a search of
                   the backpack required third-party consent because Kirkland allegedly
                   knew it was Moultrie's backpack. The State does not address Moultrie's
                   claim regarding the validity of the search. Rather, the State responds that
                   the hearsay ruling was egregious error, thereby allowing the filing of an
                   information by affidavit. 5 We address this issue to the extent Moultrie is


                         5 Moultrie  urges this court to treat the State's failure to respond to
                   this issue as a confession of error. The issue raised by Moultrie challenges
                   the validity of the search. We note, however, that Moultrie never filed a
                   motion to suppress evidence and no court has ruled on the legality of the
                   search. Although we could treat the State's failure to respond as a
                   confession of error, see NRAP 31(d)(2); Polk v. State, 126 Nev. 180, 184,
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                   challenging the district court's determination that the justice court
                   committed egregious error in sustaining the hearsay objection.
                               The justice court sustained Moultrie's hearsay objection to
                   Kirkland's testimony that the driver provided oral consent for a search of
                   the car. Although Moultrie had not filed a motion to suppress evidence
                   based on the legality of the search, he then objected to any testimony
                   about evidence seized during the search as fruit of the poisonous tree. The
                   justice court did not rule on the legality of the search but ultimately
                   excluded the testimony describing the evidence seized during the search.
                               In its motion for leave to file an information by affidavit, the
                   State contended the justice court committed egregious error by not finding
                   probable cause to support the drug possession charge. Specifically, the
                   State claimed the justice court's incorrect hearsay ruling precluded the
                   court from considering the evidence properly before it. Moultrie
                   maintained that egregious error did not occur when the justice court
                   sustained the hearsay objection.
                               The district court determined that the justice court erred by
                   sustaining the hearsay objection. The district court further determined
                   that, although an evidentiary ruling normally would not be significant
                   enough to rise to the level of plain error, in this case, the error
                   substantially affected the State's rights because the error prevented the


                   ...continued
                   233 P.3d 357, 359-60 (2010); Bates v. Chronister, 100 Nev. 675, 682, 691
                   P.2d 865, 870 (1984), where, as here, the issue was not raised below and
                   was therefore not properly preserved for appeal and does not affect the
                   outcome of this appeal, we decline to do so, see Diaz v. State, 118 Nev. 451,
                   453 n.2, 50 P.3d 166, 167 n.2 (2002) (stating that this court need not
                   consider new issues on appeal).


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                   justice court from considering admissible• evidence when making the
                   probable cause determination. When the district court reviewed the
                   evidence excluded by the justice court, it concluded there was sufficient
                   evidence to support Moultrie being held to answer.
                                  The justice court's decision to exclude all evidence obtained
                   from the search of the backpack as fruit of the poisonous tree was error.
                   Generally, a motion to suppress evidence must be filed to exclude evidence
                   on constitutional grounds. 6 See NRS 174.125; NRS 179.085. Neither an
                   oral or written motion to suppress was presented nor was a hearing held
                   as required by NRS 174.125.
                                  Further, the justice court erred by finding Kirkland's
                   testimony that the driver consented to a search of the car was hearsay.
                   Kirkland's testimony was not hearsay because it did not go to the truth of
                   the matter asserted.      See NRS 51.035. Rather, the State offered it to
                   establish why Kirkland proceeded with the search of the car. See People v.
                   Nelson, 212 Cal. Rptr. 799, 803 (Ct. App. 1985) (holding that oral words of
                   consent are not offered to prove the truth of the matter, rather they are
                   relevant as words of authorization; they are therefore nonhearsay); see
                   also Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990) (holding
                   that a statement is not hearsay when it is offered to show the effect on the
                   listener and not for the truth of the matter).



                         6 This  court is not holding that a motion to suppress evidence must
                   be filed in justice court before a constitutional objection may be raised
                   during a preliminary examination. Rather, only that no such motion was
                   filed in justice or district court; therefore, without a motion or suppression
                   hearing, the alleged illegal search and seizure cannot be a basis to reverse
                   the judgment of the district court.


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                               Because the justice court's error regarding the hearsay ruling
                   was plain from a casual inspection of the record, and resulted in Moultrie's
                   discharge, we conclude the district court did not err by finding that the
                   justice court committed egregious error.
                         Motion to amend the complaint
                               Moultrie also contends the district court erred in finding the
                   justice court committed egregious error by denying the State's motion to
                   amend the complaint. We disagree.
                               "The justice court's role at the preliminary hearing is to
                   determine whether there is probable cause to find that an offense has been
                   committed and that the defendant has committed it."         State v. Justice
                   Court of Las Vegas, Twp., 112 Nev. 803, 806, 919 P.2d 401, 402 (1996). An
                   "accused may be held to answer for a public offense other than that
                   charged in the complaint." Singleton v. Sheriff, Clark Cnty., 86 Nev. 590,
                   593, 471 P.2d 247, 249 (1970) (internal quotation omitted). 7 A justice
                   court may permit the State to amend the complaint to conform to the
                   evidence presented. See generally Viray v. State, 121 Nev. 159, 163, 111
                   P.3d 1079, 1082 (2005) (concluding that the district court did not abuse its
                   discretion by allowing the State to amend the information to conform to
                   the victim's testimony); Grant v. State, 117 Nev. 427, 433-34, 24 P.3d 761,
                   765 (2001) (holding that the district court did not err by amending a grand
                   larceny charge from a category B to a category C offense to conform to the
                   evidence presented, where the State raised the alternative of amending
                   the criminal information, and the defendant was not prejudiced because


                         7 "10785N.C.L. 1929 and NRS 171.206 are found to be comparable."
                   Singleton, 86 Nev. at 593 n.5, 471 P.2d at 249 n.5.


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                    he had sufficient notice of the lesser charge);      see also NRS 178.610
                    (providing that a court may proceed in any lawful manner when procedure
                    is not specifically prescribed).
                                 In its rebuttal closing argument during the preliminary
                    examination, the State moved to amend the complaint to charge Moultrie
                    with a violation of NRS 453.337(2)(a), a category D felony, and not NRS
                    453.337(2)(b), a category C felony. The State never alleged a prior
                    conviction in the complaint, nor tried to prove a prior conviction during the
                    hearing. The error in the complaint referring to a category C felony (a
                    second offense) compared to a category D felony (a first offense) was
                    immaterial in the preliminary examination.      See NRS 173.075(3) (stating
                    that error in citation of statute is not a ground for dismissal unless error
                    resulted in prejudice).
                                 Even if the complaint had alleged a prior offense, the State
                    requested the prior conviction allegation be removed. The amendment to
                    the complaint would have required Moultrie to defend the same
                    underlying crime and because Moultrie had sufficient notice of the charge
                    he was facing, granting the motion to amend would not have affected his
                    substantial rights. 8



                          8An  omission or inaccuracy in the description of a prior offense does
                    not preclude its use without a showing of prejudice. Dressler v. State, 107
                    Nev. 686, 689, 819 P.2d 1288, 1290 (1991). Moreover, Moultrie's reliance
                    on Parsons v. State, 116 Nev. 928, 934-36, 10 P.3d 836, 839-41 (2000), to
                    assert that the State must substantiate the existence of prior convictions
                    at preliminary examinations is inapposite because prior convictions are
                    not part of the probable cause determination when they are used solely for
                    penalty enhancement purposes, and not as part of the underlying charge.
                    Moultrie is also misguided in relying on Hobbs v. State, 127 Nev. 234, 241,
                    251 P.3d 177, 181-82 (2011), where the State presented evidence of the
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                               At the preliminary examination, the State presented sufficient
                   evidence to demonstrate that Moultrie had committed first offense
                   possession of a controlled substance with the intent to sell, a category D
                   felony under NRS 453.337(2)(a). Thus, the justice court abused its
                   discretion in denying the motion to amend the complaint. This error is
                   plain from the record and resulted in Moultrie's discharge. Therefore, we
                   conclude that the district court did not err in finding the justice court
                   committed egregious error by denying the motion to• amend the complaint
                   and discharging Moultrie.
                               Because we conclude the district court did not err in finding
                   the justice court committed egregious error, we conclude the district court
                   did not abuse its discretion by granting the motion to file an information
                   by affidavit pursuant to NRS 173.035(2).
                                                 CONCLUSION
                               We conclude the district court did not abuse its discretion in
                   finding that Moultrie failed to demonstrate actual prejudice resulting from
                   the delay in filing the motion for leave to file an information by affidavit.
                   We further conclude the district court did not err in finding that the


                   ...continued
                   prior convictions at the preliminary examination but failed to present the
                   evidence at sentencing. Moultrie's comparison to these cases, which
                   involve defendants charged with crimes involving prior convictions such as
                   DUI and domestic battery, is further misplaced because those crimes are
                   misdemeanors and those defendants would be held to answer on felony
                   charges only if two or more prior convictions were shown to exist. Here,
                   the drug charge was a felony with or without an alleged prior felony
                   conviction. The justice court's role is only to determine whether there is
                   probable cause that the defendant committed an offense. Parsons, 116
                   Nev. at 933, 10 P.3d at 839.

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                   justice court committed egregious error that resulted in Moultrie's
                   discharge. Therefore, we conclude the district court did not abuse its
                   discretion in granting the State's motion to file an information by
                   affidavit. Accordingly, we affirm the judgment of conviction.




                                                                                   C.J.
                                                       Gibbons

                   I concur:



                                                  J.
                   Silver




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                   TAO, J., concurring:
                               I agree that the majority opinion addresses the only argument
                   that Moultrie presents in his appeal, which relates to the prejudice that he
                   has allegedly suffered but which, unfortunately for Moultrie, the record
                   does not support. Both Moultrie and the district court assume that a court
                   possesses some discretion to waive the deadline to file an information by
                   affidavit; the arguments below were framed almost entirely around the
                   question of how that discretion should be exercised. But I am not sure
                   that any discretion exists in view of the plain language of the statutes.'
                               By its terms, the 15-day deadline of NRS 173.035(3) applies
                   not just to the filing of an information by affidavit; it applies to the filing
                   of any information in district court regardless of whether the defendant (a)
                   was held to answer the charges and bound over for trial as a result of a
                   preliminary hearing, (b) was bound over to district court because he
                   waived his right to a preliminary hearing, or (c) was discharged from
                   custody after all charges were dismissed during the preliminary hearing
                   and the State now seeks to reinstate the charges in district court by way of
                   an information by affidavit.
                               In any of those scenarios, NRS 173.035(3) says rather plainly
                   that the information "must" be filed no later than 15 days after the
                   holding or waiver of the preliminary hearing. When a statute says "must,"


                          'Therefore, this concurrence can be said to be dubitante. See Lloyd
                   v. J.P. Morgan Chase & Co., 791 F.3d 265, 274 (2d Cir. 2015) (Sack, J.,
                   concurring dubitante); United States v. Jeffries, 692 F.3d 473,483 (6th Cir.
                   2012) (Sutton, J., concurring dubitante); Majors v. Abell, 361 F.3d 349, 355
                   (7th Cir. 2004) (Easterbrook, J., dubitante); Bierenbaum v. Graham, 607
                   F.3d 36, 59 (2d Cir. 2010) (Calabresi, J., concurring dubitante); see also
                   Jason J. Czarnezki, The Dubitante Opinion, 39 Akron L. Rev. 1, 2 (2006).

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                   we are required to rigorously interpret that word as meaning that the
                   Legislature intended to deprive courts of the discretion to refuse to do
                   what the statute directs.        See NRS 0.025(1)(c) (defining "must" as
                   expressing a requirement); see also Goudge v. State, 128 Nev. „ 287
                   P.3d 301, 304 (2012) ("The use of the word 'shall' in the statute divests the
                   district court of judicial discretion. This court has explained that, when
                   used in a statute, the word 'shall' imposes a duty on a party to act and
                   prohibits judicial discretion and, consequently, mandates the result set
                   forth by the statute." (internal citations omitted)); Pasillas v. HSBC Bank
                   USA, 127 Nev. 462, 467, 255 P.3d 1281, 1285 (2011) ("[T]his court has
                   stated that 'shall' is mandatory unless the statute demands a different
                   construction to carry out the clear intent of the legislature . . . , [a]nd as it
                   is used here, 'must' is a synonym of 'shall.'" (internal citation and
                   quotation omitted)); Johanson v. Eighth Judicial Dist. Court, 124 Nev.
                   245, 249-50, 182 P.3d 94, 97 (2008) (w[S]hall' is mandatory and does not
                   denote judicial discretion." (alteration in original) (quoting Washoe Med.
                   Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1303, 148 P.3d 790, 793
                   (2006))); Nev. Comm'n on Ethics v. JMA I Lucchesi,        110 Nev. 1, 9-10, 866
                   P.2d 297, 302 (1994) ("It is a well-settled principle of statutory
                   construction that statutes using the word 'may' are generally directory
                   and permissive in nature, while those that employ the term 'shall' are
                   presumptively mandatory.").
                                Thus, "muse means "must," and an information of any kind,
                   whether following a bind-over or following a discharge, cannot be filed
                   more than 15 days following a preliminary hearing—unless the
                   Legislature chose to give some leeway to that deadline in another statute.
                   In the case of an information filed after a defendant has been held to

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                   answer, there is another statute that excuses the deadline: NRS 178.556
                   states that when a defendant has been held to answer, the district court
                   "may" dismiss an information that was not filed before the expiration of
                   the 15-day deadline. The Nevada Supreme Court has interpreted this to
                   mean that NRS 178.556 operates to give a district court some discretion to
                   permit a late-filed information to proceed where a defendant has not
                   suffered any prejudice arising from the delay and quite possibly also when
                   the State cannot show "good cause" for the delay.      See Berry v. Sheriff
                   Clark Cnty., 93 Nev. 557, 558, 571 P.2d 109, 110 (1977); Thompson v.
                   State, 86 Nev. 682, 683, 475 P.2d 96, 97 (1970) (discussing, but not
                   resolving, argument that "good cause" was required to file belated
                   information); see also Huebner v. State, 103 Nev. 29, 31, 731 P.2d 1330,
                   1332 (1987) (speedy trial portion of NRS 178.556 can only be waived upon
                   showing of good cause); Anderson v. State, 86 Nev. 829, 834, 477 P.2d 595,
                   598 (1970) ("NRS 178.556 states that the court 'may' dismiss the
                   information or indictment if the defendant is not brought to trial within 60
                   days. This rule is only mandatory if there is not good cause shown for the
                   delay." (internal footnote omitted)); Adams v. Sheriff White Pine Cnty., 91
                   Nev. 575, 576, 540 P.2d 118, 119 (1975) (dismissal when State could not
                   show "good cause" for delay between issuing of indictment and
                   arraignment).
                               The district court interpreted this discretion as something that
                   exists just as much when a defendant has been discharged as when he has
                   been held to answer. But the statute does not say that. On its face, NRS
                   178.556 operates to supply this discretion only when the defendant has
                   been held to answer the charges. See NRS 178.556(1) ("If no indictment is
                   found or information filed against a person within 15 days after the person

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                   has been held to answer for a public offense which must be prosecuted by
                   indictment or information, the court may dismiss the complaint."
                   (emphasis added)). NRS 178.556 says nothing about cases in which a
                   defendant has been discharged and the State seeks to file a late
                   information by affidavit.
                               Therefore, the question raised by this appeal can be
                   characterized as whether, notwithstanding the text of NRS 173.035(3) and
                   178.556, a district court also possesses the same, or at least similar,
                   discretion to waive the deadline when the State seeks to file an
                   information by affidavit more than 15 days (in this case, 63 days) after a
                   defendant has been discharged rather than held to answer the charges.
                               If we are "strict constructionists" guided only by the words of
                   the statutes and the intention of the Legislature as expressed in those
                   words, I would say that the answer to that question is no.    See Antonin
                   Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts
                   56 (2012) ("[T]he words of a governing text are of paramount concern.").
                   Where the Legislature has expressly prohibited the exercise of judicial
                   discretion, we do not have the power to create it ourselves except perhaps
                   in the most compelling of circumstances. Here, NRS 173.035(3) limits
                   judicial discretion subject to the exception of NRS 178.556, which creates
                   some discretion, but only when the defendant has been held to answer.
                   NRS 178.556 says nothing about defendants who have been discharged,
                   and the inclusion of one thing within a statute is normally read as the
                   exclusion of other normally related things ("expressio unius est exclusio
                   alterius"). See Galloway v. Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246
                   (1967) ("The maxim `expressio Unius Est Exclusio Alterius,' the expression
                   of one thing is the exclusion of another, has been repeatedly confirmed in

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                   this State."); see also Scalia & Garner, supra, at 170 ("a material variation
                   in terms suggests a variation in meaning.").          See generally Sheriff
                   Pershing Cnty. v. Andrews, 128 Nev. „ 286 P.3d 262, 264 (2012)
                   (inferring that where the Legislature "clearly knows how to prohibit" an
                   act under one statute and does not prohibit it under a second statute, the
                   Legislature did not intend to prohibit it under the second statute). In the
                   absence of statutory sanction, I would conclude that a district court does
                   not possess any discretion to permit the filing of an information by
                   affidavit more than 15 days after a defendant has been discharged, no
                   matter how much "good cause" the State might be able to show and how
                   little "prejudice" the defendant might be able to claim. 2
                               Even if we look outside of the statutes, a close reading of
                   existing Nevada Supreme Court precedent also suggests that the answer
                   to the question before us must be no. In Berry and Thompson, the
                   defendant was bound over and the court applied NRS 178.556 to excuse a
                   late information filed more than 15 days after a defendant was held to
                   answer the charges. Berry, 93 Nev. 557, 571 P.2d 109; Thompson, 86 Nev.
                   682, 472 P.2d 96. Neither of these cases involved an information by
                   affidavit belatedly filed after a defendant was discharged. Id. No existing
                   judicial precedent in Nevada that I can find contemplates or creates
                   discretion to permit the late filing of an information by affidavit more than

                         2There may be an interesting question regarding whether the
                   discretion embodied in NRS 178.556 applies when a defendant has been
                   held to answer some charges but was discharged from others, and the
                   State seeks to restore (in other words, add) the dismissed charges by way
                   of information by affidavit. In that case, the defendant has been bound
                   over as required by NRS 178.556, but the State seeks to file an
                   information by affidavit that normally would not fall within NRS
                   178.556's purview. But that question is not before us in this case.

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                   15 days after a defendant was discharged rather than held to answer the
                   charges.
                               Consequently, I would conclude that neither the Legislature
                   nor the Nevada Supreme Court have created any discretion for a district
                   court to ignore or waive the deadline of NRS 173.035(3) in the filing of an
                   information by affidavit after a defendant's discharge. Thus, when
                   confronted by a motion seeking leave to file an information by affidavit
                   following discharge, a district court cannot grant leave to the State when
                   more than 15 days have elapsed since the preliminary hearing.
                               One might wonder why the Legislature would divide things up
                   in this way to create judicial discretion when it comes to an information
                   filed after bind-over, but not in the case of an information by affidavit
                   following a discharge. But whether a statute represents sound or wise
                   policy is for the political branches of government to decide, not the
                   judiciary. See In re Fontainebleau Las Vegas Holdings, 128 Nev.        ,
                   289 P.3d 1199, 1212 (2012) ("When a statute is clear, unambiguous, not in
                   conflict with other statutes and is constitutional, the judicial branch may
                   not refuse to enforce the statute on public policy grounds. That decision is
                   within the sole purview of the legislative branch." (quoting Beazer Homes
                   Nev., Inc. v. Eighth Judicial Dist. Court, 120 Nev. 575, 578 n.4, 97 P.3d
                   1132, 1134 n.4 (2004))). See generally Griswold v. Connecticut, 381 U.S.
                   479, 482 (1965) ("We do not sit as a super-legislature to determine the
                   wisdom, need, and propriety of laws that touch economic problems,
                   business affairs, or social conditions."). When the Legislature has acted
                   and its intention is clear and unambiguous, we must enforce the statute as
                   written even if we think that the statute operates in an unfair way or was
                   just a bad idea. See Pellegrini v. State, 117 Nev. 860, 878, 34 P.3d 519,

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                   531 (2001) ("[E]quitable principles will not justify a court's disregard of
                   statutory requirements." (internal footnote omitted)).
                               Furthermore, the distinction is not without logical basis. The
                   filing of an information after a defendant has been bound over represents
                   a mere ministerial act that occurs after a judicial finding that the charges
                   were supported by probable cause and the defendant ought to stand trial
                   for the alleged crimes. The missing of that deadline may represent little
                   more than a technicality, and it makes sense for the district court to have
                   some discretion to overlook technical errors supported by good cause
                   rather than be reluctantly compelled to dismiss serious felony charges
                   based on a clerical error that may have been utterly excusable.
                               But when a defendant has been discharged, a judicial officer
                   has affirmatively found that the charges were not worth pursuing any
                   further, either because they lacked enough evidence to even constitute
                   probable cause or perhaps because some material, nontechnical error
                   existed in the State's pleadings that required dismissal. When the State
                   seeks to file an information by affidavit after a defendant has already been
                   discharged from custody, it effectively seeks to have one judicial officer
                   overrule another and reinstate charges that have already been dismissed.
                   On its merits the State's request might be warranted; after all,
                   overworked judges do sometimes commit "egregious error" and charges
                   might be erroneously dismissed when they should not have been. But it
                   would not be utterly illogical for the Legislature to have decided that there
                   ought to be a very tight, nondiscretionary deadline for the State to make
                   this request and thereby force the defendant to again face charges that




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                   were already dismissed. 3 At the very least, the Legislature would have
                   been well within its constitutional powers in making that decision and
                   purposefully depriving us of the discretion to second-guess it. 4
                                 Accordingly, I interpret NRS 173.035(3) as creating an
                   absolute statutory bar to the filing of an information by affidavit more
                   than 15 days after a defendant has been discharged from custody after a




                         3 Ifwe read the statutes otherwise, a logical flaw would exist. As a
                   practical matter, the State possesses the right to file an information in
                   district court without judicial intervention whenever a defendant has been
                   held to answer. If filed late, the court may entertain a subsequent motion
                   seeking dismissal for untimeliness under NRS 178.556, which the court
                   has the discretion to grant or deny based upon the presence or absence of
                   good cause and prejudice. But the State has no right to file an information
                   by affidavit following discharge without judicial intervention; it cannot be
                   filed without first obtaining leave of court. NRS 173.035(2). Because the
                   district court would already have considered the timeliness of the State's
                   filing when it considered the request for leave, there would have been no
                   logical need for the Legislature to also create a separate ground for
                   dismissal based on timeliness within NRS 178.556 for a late-filed
                   information by affidavit; doing so would strangely require the district
                   court to consider the same question of timeliness in two different motions.

                         4 0ne could perhaps argue that, practically speaking, the State could
                   easily tiptoe around the deadline and re-charge the defendant any time it
                   wants, even months or years later, by simply submitting the same charges
                   to a grand jury (at least in counties where one sits regularly). But having
                   a grand jury reconsider charges and overrule a prior judge's finding of
                   probable cause is, constitutionally speaking, an entirely different animal
                   than having a later judge overrule a prior one through the submission of
                   affidavits. In any event, the Legislature is entitled to be as arbitrary as it
                   wants, and it is not required to draft statutes that are perfectly consistent
                   and close every imaginable loophole.

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                   preliminary hearing, without any inquiry into the presence or absence of
                   either "good cause" or prejudice.



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