[Rev. 11/21/2013 9:54:08 AM--2013]

CHAPTER 173 - INDICTMENT AND INFORMATION

GENERAL PROCEDURE

NRS 173.015†††††††††† First pleading by State.

NRS 173.025†††††††††† Courts may act upon information for all offenses.

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on affidavit; limitation of time; amended information may include additional charges if plea agreement is rejected or withdrawn.

NRS 173.045†††††††††† District attorney or Attorney General to be informant; endorsement of names of witnesses; affidavits.

NRS 173.049†††††††††† Court clerk may accept information filed electronically; procedure; service.

NRS 173.055†††††††††† Duties of district attorney or Attorney General; written statement containing reasons why information not filed.

NRS 173.065†††††††††† Judge may require Attorney General to prosecute if district attorney refuses.

FORM AND AMENDMENT

NRS 173.075†††††††††† Nature and contents generally.

NRS 173.085†††††††††† Surplusage.

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

NRS 173.105†††††††††† Charging defendant by fictitious or erroneous name: Insertion of true name.

JOINDER OF OFFENSES AND OF DEFENDANTS

NRS 173.115†††††††††† Joinder of offenses.

NRS 173.125†††††††††† Prosecution not required to elect between different offenses or counts; plea of guilty or guilty but mentally ill to one offense does not preclude prosecution for other offenses.

NRS 173.135†††††††††† Joinder of defendants.

WARRANTS AND SUMMONSES

NRS 173.145†††††††††† Issuance of warrant or summons.

NRS 173.155†††††††††† Form of warrant; fixing and endorsement of amount of bail.

NRS 173.165†††††††††† Manner of proceeding on giving bail in another county.

NRS 173.175†††††††††† Ordering defendant charged with felony into custody unless increased bail is given.

NRS 173.185†††††††††† Form of summons.

NRS 173.195†††††††††† Execution of warrant and service of summons.

NRS 173.205†††††††††† Return of warrant and summons; reissuance.

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GENERAL PROCEDURE

††††† NRS 173.015  First pleading by State.  The first pleading on the part of the State is the indictment or information.

††††† (Added to NRS by 1967, 1411)

††††† NRS 173.025  Courts may act upon information for all offenses.  The several courts of this state shall have and may exercise the same power and jurisdiction to try and determine prosecutions upon information for crimes, misdemeanors and offenses, to issue writs and process and do all other acts therein as in cases of like prosecution under indictment.

††††† (Added to NRS by 1967, 1412)

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

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

††††† (a) Has had a preliminary examination as provided by law 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 the right to a preliminary examination.

††††† 2.  If, however, upon the preliminary examination the accused has been discharged, or the affidavit or complaint upon which the examination has been held has not been delivered to the clerk of the proper court, the Attorney General when acting pursuant to a specific statute or the district attorney may, upon affidavit of any person who has knowledge of the commission of an offense, and who is a competent witness to testify in the case, setting forth the offense and the name of the person or persons charged with the commission thereof, upon being furnished with the names of the witnesses 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 filed in cases where the defendant has waived a preliminary examination, or upon a preliminary examination has been bound over to appear at the court having jurisdiction.

††††† 3.  The information must be filed within 15 days after the holding or waiver of the preliminary examination. Each information must set forth the crime committed according to the facts.

††††† 4.  If, with the consent of the prosecuting attorney, a defendant waives the right to a preliminary examination in accordance with an agreement by the defendant to plead guilty, guilty but mentally ill or nolo contendere to a lesser charge or to at least one, but not all, of the initial charges, the information filed against the defendant pursuant to this section may contain only the offense or offenses to which the defendant has agreed to enter a plea of guilty, guilty but mentally ill or nolo contendere. If, for any reason, the agreement is rejected by the district court or withdrawn by the defendant, the prosecuting attorney may file an amended information charging all of the offenses which were in the criminal complaint upon which the preliminary examination was waived. The defendant must then 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; 2007, 1404)

††††† NRS 173.045  District attorney or Attorney General to be informant; endorsement of names of witnesses; affidavits.

††††† 1.  All informations must be filed in the court having jurisdiction of the offenses specified therein, by the Attorney General when acting pursuant to a specific statute or by the district attorney of the proper county as informant, and his or her name must be subscribed thereto by him or her or by his or her deputy.

††††† 2.  The district attorney or the Attorney General shall endorse thereon the names of such witnesses as are known at the time of filing the information. The district attorney or Attorney General shall not endorse the name of any witness whom he or she does not reasonably expect to call.

††††† 3.  In all cases in which the defendant has not had or waived a preliminary examination there must be filed with the information the affidavit of some credible person verifying the information upon the personal knowledge of affiant that the offense was committed.

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

††††† NRS 173.049  Court clerk may accept information filed electronically; procedure; service.

††††† 1.  A court clerk may accept an information filed pursuant to this chapter that is filed electronically. An information that is filed electronically must contain an image of the signature of the prosecuting attorney.

††††† 2.  If a court clerk accepts an information that is filed electronically pursuant to subsection 1, the court clerk shall acknowledge receipt of the information by an electronic time stamp and shall electronically return the information with the electronic time stamp to the prosecuting attorney. An information that is filed and time-stamped electronically pursuant to this section may be converted into a printed document and served upon a defendant in the same manner as an information that is not filed electronically.

††††† (Added to NRS by 1997, 892)

††††† NRS 173.055  Duties of district attorney or Attorney General; written statement containing reasons why information not filed.

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

††††† 2.  If the district attorney or the Attorney General determines in any such case that an information ought not to be filed, the district attorney or Attorney General shall file with the clerk of the court having jurisdiction of the supposed offense a written statement containing the reasons, in fact and in law, for not filing any information in the case. The statement must be filed within 15 days after the holding of the preliminary examination.

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

††††† NRS 173.065  Judge may require Attorney General to prosecute if district attorney refuses.  The judge of the court having jurisdiction may in extreme cases, upon affidavit filed with the judge of the commission of a crime, require all available evidence to be delivered to the Attorney General for prosecution, if the district attorney refuses to prosecute any person for such crime.

††††† (Added to NRS by 1967, 1413)

FORM AND AMENDMENT

††††† NRS 173.075  Nature and contents generally.

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

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

††††† 3.  The indictment or information must state for each count the official or customary citation of the statute, rule, regulation or other 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 the indictment or information or for reversal of a conviction if the error or omission did not mislead the defendant to the defendantís 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 surplusage from 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 information to be amended at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

††††† 2.  If an indictment is found charging a primary offense upon which a charge of habitual criminality may be based, the prosecuting 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, the prosecuting attorney shall file a notice of habitually fraudulent felon with the court.

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

††††† 3.  The court shall permit an information to be amended pursuant to subsection 4 of NRS 173.035.

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

††††† NRS 173.105  Charging defendant by fictitious or erroneous name: Insertion of true name.  When a defendant is charged by a fictitious or erroneous name, and in any stage of the proceedings the defendantís true name is discovered, it must be inserted in the subsequent proceedings referring to the fact of the defendantís being charged by the name mentioned in the indictment or information.

††††† (Added to NRS by 1967, 1413)

JOINDER OF OFFENSES AND OF DEFENDANTS

††††† NRS 173.115  Joinder of offenses.  Two or more offenses may be charged in the same indictment or information in a separate count for each offense 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 connected together or constituting parts of a common scheme or plan.

††††† (Added to NRS by 1967, 1413)

††††† NRS 173.125  Prosecution not required to elect between different offenses or counts; plea of guilty or guilty but mentally ill to one offense does not preclude prosecution for other offenses.  The prosecution is not required to elect between the different offenses or counts set forth in the indictment or information, and a plea of guilty or guilty but mentally ill to one or more offenses charged in the indictment or information does not preclude prosecution for the other offenses.

††††† (Added to NRS by 1967, 1413; A 1995, 2449; 2003, 1457; 2007, 1404)

††††† NRS 173.135  Joinder of defendants.  Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

††††† (Added to NRS by 1967, 1413)

WARRANTS AND SUMMONSES

††††† NRS 173.145  Issuance of warrant or summons.

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

††††† 2.  The clerk shall issue a summons instead of a warrant upon the request of the district attorney, the Attorney General or by direction of the court.

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

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

††††† 5.  If a defendant fails to appear in response to the summons, a warrant must be issued.

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

††††† NRS 173.155  Form of warrant; fixing and endorsement of amount of bail.  The form of the warrant shall be as provided in NRS 171.108 except that it shall be signed by the clerk, it shall describe the offense charged in the indictment or information and it shall command that the defendant be arrested and brought before the court. The amount of bail may be fixed by the court and endorsed on the warrant.

††††† (Added to NRS by 1967, 1414)

††††† NRS 173.165  Manner of proceeding on giving bail in another county.  If the offense charged in the warrant is bailable, and the defendant is arrested in another county, the officer must, upon being required by the defendant, take the defendant before the most convenient magistrate in that or any adjoining county, who must admit the defendant to bail in the amount fixed in the warrant and take bail from the defendant accordingly, naming therein a time, not more than 10 days after the time of taking such bail, for the defendant to appear before the court in which the warrant was issued; or, in case the court is not in session at the time so fixed for the defendant to appear, for the defendant to appear before the court in which the warrant was issued at the first time it is in session thereafter.

††††† (Added to NRS by 1967, 1414)

††††† NRS 173.175  Ordering defendant charged with felony into custody unless increased bail is given.  When the indictment or information is for a felony and the defendant before the filing thereof has given bail for the defendantís appearance to answer the charge, the court in which the indictment or information is presented, or in which it is pending, may order the defendant to be committed to actual custody unless the defendant gives bail in an increased amount, to be specified in the order.

††††† (Added to NRS by 1967, 1414)

††††† NRS 173.185  Form of summons.  The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place.

††††† (Added to NRS by 1967, 1414)

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

††††† (Added to NRS by 1967, 1414)

††††† NRS 173.205  Return of warrant and summons; reissuance.

††††† 1.  The peace officer executing a warrant shall make return thereof to the court. At the request of the Attorney General acting pursuant to a specific statute or the district attorney any unexecuted warrant must be returned and cancelled.

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

††††† 3.  At the request of the Attorney General acting pursuant to a specific statute or the district attorney, made at any time while the indictment or information is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the clerk to a peace officer or other authorized person for execution or service.

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