2005 Nevada Revised Statutes - Chapter 173 — Indictment and Information

CHAPTER 173 - INDICTMENT AND INFORMATION

GENERAL PROCEDURE

NRS 173.015 Firstpleading by State.

NRS 173.025 Courtsmay act upon information for all offenses.

NRS 173.035 Informationmay be filed following preliminary examination when accused is bound over orwhen preliminary examination is waived; when information is filed on affidavit;limitation of time; amended information may include additional charges if pleaagreement is rejected or withdrawn.

NRS 173.045 Districtattorney or Attorney General to be informant; endorsement of names ofwitnesses; affidavits.

NRS 173.049 Courtclerk may accept information filed electronically; procedure; service.

NRS 173.055 Dutiesof district attorney or Attorney General; written statement containing reasonswhy information not filed.

NRS 173.065 Judgemay require Attorney General to prosecute if district attorney refuses.

FORM AND AMENDMENT

NRS 173.075 Natureand contents generally.

NRS 173.085 Surplusage.

NRS 173.095 Amendment;notice of habitual criminality, habitually fraudulent felon or habitual felon.

NRS 173.105 Chargingdefendant by fictitious or erroneous name: Insertion of true name.

JOINDER OF OFFENSES AND OF DEFENDANTS

NRS 173.115 Joinderof offenses.

NRS 173.125 Prosecutionnot required to elect between different offenses or counts; plea of guilty toone offense does not preclude prosecution for other offenses.

NRS 173.135 Joinderof defendants.

WARRANTS AND SUMMONSES

NRS 173.145 Issuanceof warrant or summons.

NRS 173.155 Formof warrant; fixing and endorsement of amount of bail.

NRS 173.165 Mannerof proceeding on giving bail in another county.

NRS 173.175 Orderingdefendant charged with felony into custody unless increased bail is given.

NRS 173.185 Formof summons.

NRS 173.195 Executionof warrant and service of summons.

NRS 173.205 Returnof warrant and summons; reissuance.

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GENERAL PROCEDURE

NRS 173.015 Firstpleading by State. The first pleading on thepart of the State is the indictment or information.

(Added to NRS by 1967, 1411)

NRS 173.025 Courtsmay act upon information for all offenses. Theseveral courts of this state shall have and may exercise the same power andjurisdiction to try and determine prosecutions upon information for crimes,misdemeanors and offenses, to issue writs and process and do all other actstherein as in cases of like prosecution under indictment.

(Added to NRS by 1967, 1412)

NRS 173.035 Informationmay be filed following preliminary examination when accused is bound over orwhen preliminary examination is waived; when information is filed on affidavit;limitation of time; amended information may include additional charges if pleaagreement is rejected or withdrawn.

1. An information may be filed against any person forany offense when the person:

(a) Has had a preliminary examination as provided bylaw before a justice of the peace, or other examining officer or magistrate,and has been bound over to appear at the court having jurisdiction; or

(b) Has waived his right to a preliminary examination.

2. If, however, upon the preliminary examination theaccused has been discharged, or the affidavit or complaint upon which theexamination has been held has not been delivered to the clerk of the propercourt, the Attorney General when acting pursuant to a specific statute or thedistrict attorney may, upon affidavit of any person who has knowledge of thecommission of an offense, and who is a competent witness to testify in thecase, setting forth the offense and the name of the person or persons chargedwith the commission thereof, upon being furnished with the names of thewitnesses for the prosecution, by leave of the court first had, file an information,and process must forthwith be issued thereon. The affidavit need not be filedin cases where the defendant has waived a preliminary examination, or upon apreliminary examination has been bound over to appear at the court havingjurisdiction.

3. The information must be filed within 15 days afterthe holding or waiver of the preliminary examination. Each information must setforth the crime committed according to the facts.

4. If, with the consent of the prosecuting attorney, adefendant waives his right to a preliminary examination in accordance with anagreement by the defendant to plead guilty or nolo contendere to a lessercharge or at least one but not all, of the initial charges, the informationfiled against the defendant pursuant to this section may contain only theoffense or offenses to which the defendant has agreed to enter a plea of guiltyor nolo contendere. If, for any reason, the agreement is rejected by thedistrict court or withdrawn by the defendant, the prosecuting attorney may filean amended information charging all of the offenses which were in the criminalcomplaint upon which the preliminary examination was waived. The defendant mustthen be arraigned in accordance with the amended information.

(Added to NRS by 1967, 1412; A 1975, 654; 1979, 1093;1989, 163; 1993, 82; 1995, 2448; 2003, 1456)

NRS 173.045 Districtattorney or Attorney General to be informant; endorsement of names ofwitnesses; affidavits.

1. All informations must be filed in the court havingjurisdiction of the offenses specified therein, by the Attorney General whenacting pursuant to a specific statute or by the district attorney of the propercounty as informant, and his name must be subscribed thereto by him or by hisdeputy.

2. The district attorney or the Attorney General shallendorse thereon the names of such witnesses as are known to him at the time offiling the information. He shall not endorse the name of any witness whom hedoes not reasonably expect to call.

3. In all cases in which the defendant has not had orwaived a preliminary examination there must be filed with the information theaffidavit of some credible person verifying the information upon the personalknowledge of affiant that the offense was committed.

(Added to NRS by 1967, 1412; A 1975, 655; 1989, 163;1997, 2365)

NRS 173.049 Courtclerk may accept information filed electronically; procedure; service.

1. A court clerk may accept an informationfiled pursuant to this chapter that is filed electronically. An informationthat is filed electronically must contain an image of the signature of the prosecutingattorney.

2. If a court clerk accepts an information that isfiled electronically pursuant to subsection 1, the court clerk shallacknowledge receipt of the information by an electronic time stamp and shallelectronically return the information with the electronic time stamp to theprosecuting attorney. An information that is filed and time-stampedelectronically pursuant to this section may be converted into a printeddocument and served upon a defendant in the same manner as an information thatis not filed electronically.

(Added to NRS by 1997, 892)

NRS 173.055 Dutiesof district attorney or Attorney General; written statement containing reasonswhy information not filed.

1. The Attorney General when acting pursuant to aspecific statute or the district attorney of the proper county shall inquireinto all cases of preliminary examinations as provided by law, concerning thecommission of any offense, whether the offenders are committed to jail,recognized or held to bail.

2. If the district attorney or the Attorney Generaldetermines in any such case that an information ought not to be filed, he shallfile with the clerk of the court having jurisdiction of the supposed offense awritten statement containing his reasons, in fact and in law, for not filingany information in the case. The statement must be filed within 15 days afterthe holding of the preliminary examination.

(Added to NRS by 1967, 1412; A 1975, 655; 1979, 1093;1989, 164)

NRS 173.065 Judgemay require Attorney General to prosecute if district attorney refuses. The judge of the court having jurisdiction may in extremecases, upon affidavit filed with him of the commission of a crime, require allavailable evidence to be delivered to the Attorney General for prosecution, ifthe district attorney refuses to prosecute any person for such crime.

(Added to NRS by 1967, 1413)

FORM AND AMENDMENT

NRS 173.075 Natureand contents generally.

1. The indictment or the information must be a plain,concise and definite written statement of the essential facts constituting theoffense charged. It must be signed by the Attorney General acting pursuant to aspecific statute or the district attorney. It need not contain a formalcommencement, a formal conclusion or any other matter not necessary to thestatement.

2. Allegations made in one count may be incorporatedby reference in another count. It may be alleged in a single count that themeans by which the defendant committed the offense are unknown or that hecommitted it by one or more specified means.

3. The indictment or information must state for eachcount the official or customary citation of the statute, rule, regulation orother provision of law which the defendant is alleged therein to have violated.Error in the citation or its omission is not a ground for dismissal of theindictment or information or for reversal of a conviction if the error oromission did not mislead the defendant to his prejudice.

(Added to NRS by 1967, 1413; A 1975, 655; 1989, 164)

NRS 173.085 Surplusage. The court on motion of the defendant may strike surplusagefrom the indictment or information.

(Added to NRS by 1967, 1413)

NRS 173.095 Amendment;notice of habitual criminality, habitually fraudulent felon or habitual felon.

1. The court may permit an indictment or informationto be amended at any time before verdict or finding if no additional ordifferent offense is charged and if substantial rights of the defendant are notprejudiced.

2. If an indictment is found charging a primaryoffense upon which a charge of habitual criminality may be based, theprosecuting attorney may file a notice of habitual criminality with the court.If an indictment is found charging a primary offense upon which a charge of:

(a) Habitually fraudulent felon may be based, theprosecuting attorney shall file a notice of habitually fraudulent felon withthe court.

(b) Habitual felon may be based, the prosecutingattorney shall file a notice of habitual felon with the court.

3. The court shall permit an information to be amendedpursuant to subsection 4 of NRS 173.035.

(Added to NRS by 1967, 1413; A 1985, 1026; 1993, 82;1995, 857, 1245)

NRS 173.105 Chargingdefendant by fictitious or erroneous name: Insertion of true name. When a defendant is charged by a fictitious or erroneousname, and in any stage of the proceedings his true name is discovered, it mustbe inserted in the subsequent proceedings referring to the fact of his beingcharged by the name mentioned in the indictment or information.

(Added to NRS by 1967, 1413)

JOINDER OF OFFENSES AND OF DEFENDANTS

NRS 173.115 Joinderof offenses. Two or more offenses may becharged in the same indictment or information in a separate count for eachoffense if the offenses charged, whether felonies or misdemeanors or both, are:

1. Based on the same act or transaction; or

2. Based on two or more acts or transactions connectedtogether or constituting parts of a common scheme or plan.

(Added to NRS by 1967, 1413)

NRS 173.125 Prosecutionnot required to elect between different offenses or counts; plea of guilty toone offense does not preclude prosecution for other offenses. The prosecution is not required to elect between the differentoffenses or counts set forth in the indictment or information, and a plea ofguilty to one or more offenses charged in the indictment or information doesnot preclude prosecution for the other offenses.

(Added to NRS by 1967, 1413; A 1995, 2449; 2003, 1457)

NRS 173.135 Joinderof defendants. Two or more defendants may becharged in the same indictment or information if they are alleged to haveparticipated in the same act or transaction or in the same series of acts ortransactions constituting an offense or offenses. Such defendants may becharged in one or more counts together or separately and all of the defendantsneed not be charged in each count.

(Added to NRS by 1967, 1413)

WARRANTS AND SUMMONSES

NRS 173.145 Issuanceof warrant or summons.

1. Upon the request of the Attorney General actingpursuant to a specific statute or the district attorney, the court shall issuea warrant for each defendant named in the indictment or information.

2. The clerk shall issue a summons instead of awarrant upon the request of the district attorney, the Attorney General or bydirection of the court.

3. Upon like request or direction the clerk shallissue more than one warrant or summons for the same defendant.

4. The clerk shall deliver the warrant or summons tothe peace officer or other person authorized by law to execute or serve it.

5. If a defendant fails to appear in response to thesummons, a warrant must be issued.

(Added to NRS by 1967, 1413; A 1975, 656; 1989, 164)

NRS 173.155 Formof warrant; fixing and endorsement of amount of bail. Theform of the warrant shall be as provided in NRS171.108 except that it shall be signed by the clerk, it shall describe theoffense charged in the indictment or information and it shall command that thedefendant be arrested and brought before the court. The amount of bail may befixed by the court and endorsed on the warrant.

(Added to NRS by 1967, 1414)

NRS 173.165 Mannerof proceeding on giving bail in another county. Ifthe offense charged in the warrant is bailable, and the defendant is arrestedin another county, the officer must, upon being required by the defendant, takehim before the most convenient magistrate in that or any adjoining county, whomust admit the defendant to bail in the amount fixed in the warrant and takebail from him accordingly, naming therein a time, not more than 10 days afterthe time of taking such bail, for the defendant to appear before the court inwhich the warrant was issued; or, in case the court is not in session at thetime so fixed for the defendant to appear, for the defendant to appear beforethe court in which the warrant was issued at the first time it is in sessionthereafter.

(Added to NRS by 1967, 1414)

NRS 173.175 Orderingdefendant charged with felony into custody unless increased bail is given. When the indictment or information is for a felony and thedefendant before the filing thereof has given bail for his appearance to answerthe charge, the court in which the indictment or information is presented, orin which it is pending, may order the defendant to be committed to actualcustody unless he gives bail in an increased amount, to be specified in theorder.

(Added to NRS by 1967, 1414)

NRS 173.185 Formof summons. The summons shall be in the sameform as the warrant except that it shall summon the defendant to appear beforethe court at a stated time and place.

(Added to NRS by 1967, 1414)

NRS 173.195 Executionof warrant and service of summons. The warrantshall be executed or the summons served as provided in NRS 171.114, 171.118 and 171.122. A summons to a corporation shallbe served as provided in NRS 171.122.The officer executing the warrant shall bring the arrested person promptlybefore the court or, for the purpose of admission to bail, before a magistrate.

(Added to NRS by 1967, 1414)

NRS 173.205 Returnof warrant and summons; reissuance.

1. The peace officer executing a warrant shall makereturn thereof to the court. At the request of the Attorney General actingpursuant to a specific statute or the district attorney any unexecuted warrantmust be returned and cancelled.

2. On or before the return day the person to whom asummons was delivered for service shall make return thereof.

3. At the request of the Attorney General actingpursuant to a specific statute or the district attorney, made at any time whilethe indictment or information is pending, a warrant returned unexecuted and notcancelled or a summons returned unserved or a duplicate thereof may bedelivered by the clerk to a peace officer or other authorized person forexecution or service.

(Added to NRS by 1967, 1414; A 1975, 656; 1989, 165)