NRS
174.085 Proceedings not constituting acquittal; effect of acquittal on
merits; proceedings constituting bar to another prosecution; retrial after
discharge of jury; effect of voluntary dismissal.
1. If a defendant was formerly acquitted
on the ground of a variance between the indictment, information or complaint
and proof, or the indictment, information, or complaint was dismissed upon an
objection to its form or substance, or in order to hold a defendant for a
higher offense without a judgment of acquittal, it is not an acquittal of the
same offense.
2. If a defendant is acquitted on the
merits, the defendant is acquitted of the same offense, notwithstanding a
defect in the form or substance in the indictment, information, or complaint on
which the trial was had.
3. When a defendant is convicted or acquitted,
or has been once placed in jeopardy upon an indictment, information or
complaint, except as otherwise provided in subsections 5 and 6, the conviction,
acquittal or jeopardy is a bar to another indictment, information or complaint
for the offense charged in the former, or for an attempt to commit the same, or
for an offense necessarily included therein, of which the defendant might have
been convicted under that indictment, information or complaint.
4. In all cases where a jury is discharged
or prevented from giving a verdict by reason of an accident or other cause,
except where the defendant is discharged during the progress of the trial or
after the cause is submitted to them, the cause may be again tried.
5. The prosecuting attorney, in a case
that the prosecuting attorney has initiated, may voluntarily dismiss a
complaint:
(a) Before a preliminary hearing if the crime
with which the defendant is charged is a felony or gross misdemeanor; or
(b) Before trial if the crime with which the
defendant is charged is a misdemeanor,
Ê without
prejudice to the right to file another complaint, unless the State of Nevada
has previously filed a complaint against the defendant which was dismissed at
the request of the prosecuting attorney. After the dismissal, the court shall
order the defendant released from custody or, if the defendant is released on
bail, exonerate the obligors and release any bail.
6. If a prosecuting attorney files a
subsequent complaint after a complaint concerning the same matter has been
filed and dismissed against the defendant:
(a) The case must be assigned to the same judge
to whom the initial complaint was assigned; and
(b) A court shall not issue a warrant for the
arrest of a defendant who was released from custody pursuant to subsection 5 or
require a defendant whose bail has been exonerated pursuant to subsection 5 to
give bail unless the defendant does not appear in court in response to a
properly issued summons in connection with the complaint.
7. The prosecuting attorney, in a case
that the prosecuting attorney has initiated, may voluntarily dismiss an
indictment or information before the actual arrest or incarceration of the
defendant without prejudice to the right to bring another indictment or
information. After the arrest or incarceration of the defendant, the
prosecuting attorney may voluntarily dismiss an indictment or information
without prejudice to the right to bring another indictment or information only
upon good cause shown to the court and upon written findings and a court order
to that effect.
(Added to NRS by 1967,
1416; A 1971,
596; 1997,
2391)
Notes of Decisions
Cited in
17
cases (
3 in the last 5 years), 1969–2025 · leading case:
Thompson v. State, 221 P.3d 708 (Nev. 2009).
Thompson v. State, 221 P.3d 708 (Nev. 2009).
· cites it 22× “562(1) states: "[e]xcept as otherwise provided in NRS 174.085,[ [3] ] an order for the dismissal of the action, as provided in NRS 178.”
Sheriff, Washoe Cnty. v. Marcus, 995 P.2d 1016 (Nev. 2000).
· cites it 24× “In that petition, Marcus argued that Nevada common law has established a “be prepared or lose” rule that cannot be and is not modified by revised NRS 174.085. At a brief hearing on the matter, the district court granted the writ, concluding that the statute did not excuse the…”
Sheriff, Clark Cnty. v. Warner, 926 P.2d 775 (Nev. 1996).
· cites it 2× “Subsequently, the district attorney, with notice to Warner, presented the case to a second grand jury between July 16, 1992, and August 20, 1992. Warner was represented by court-appointed counsel, and expert witnesses testified on behalf of Warner.”
State v. Kirkpatrick, 584 P.2d 670 (Nev. 1978).
· cites it 2× “” In either case, the accused must prepare a defense to all means by which it is alleged the érime was committed. Johnson v. United States, 207 F.”
State v. Connery, 679 P.2d 1266 (Nev. 1984).
“2d 1028 (1973); NRS 174.085(4). Retrial is not prohibited by the double jeopardy bar if a prosecutor demonstrates “manifest necessity” for the mistrial.”
City of Henderson Vs. Amado, 2017 NV 36 (Nev. 2017).
· cites it 26× “In 1997, the Legislature amended NRS 174.085(5) to its current form: 5. The prosecuting attorney, in a case that the prosecuting attorney has initiated, may voluntarily dismiss a complaint: (a) Before a preliminary hearing if the crime with which the defendant is charged is a…”
City of Henderson Vs. Amado, 2017 NV 36 (Nev. 2017).
· cites it 13× “In 1997, the Legislature amended NRS 174.085(5) to its current form: 5. The prosecuting attorney, in a case that the prosecuting attorney has initiated, may voluntarily dismiss a complaint: (a) Before a preliminary hearing if the crime with which the defendant is charged is a…”
Williams v. Mun. Judge, 456 P.2d 440 (Nev. 1969).
“NRS 174.085 provides, in part, as follows: “Proceedings not constituting former acquittal; effect of acquittal on merits; effect of conviction, acquittal or jeopardy as bar; cause may be retried after discharge of jury; exception.”
Edmisten v. Neven (D. Nev. 2023).
· cites it 4× “3 On June 21, 2013 (the time scheduled for a preliminary hearing on the Walgreens 4 complaint), the State voluntarily moved to dismiss the Walgreens complaint “pursuant to statute,” 5 and the state district court granted the motion “without prejudice” under NRS § 174.085. ECF…”
Gilbaugh (Jon) v. Dist. Ct. (State) (Nev. 2016).
· cites it 2× “Petitioner Jon Gilbaugh contends that the district court erred in concluding that the State could seek an indictment after voluntarily dismissing charges pursuant to NRS 174.085(5). We conclude that petitioner has not demonstrated that the district court manifestly abused its…”
Gathrite (deandre) Vs. Dist. Ct. (state), 2019 NV 54 (Nev. 2019).
· cites it 2× “562(1) (providing that voluntary dismissal of a complaint under NRS 174.085 does not bar another prosecution for the same offense), and where the justice court has discharged a defendant on a 5Here, the State also could have asked the justice court to reconsider its decision.”
Fernandez (Rene) v. State (Nev. 2013).
· cites it 3× “Appellant failed to demonstrate that he was prejudiced. The State's experts testified regarding their testing of the cocaine and additional evidence discovered in the vehicle.”
— Nev. Rev. Stat. § 174.085(3) — 1 case
State v. Kirkpatrick, 584 P.2d 670 (Nev. 1978).
“” In either case, the accused must prepare a defense to all means by which it is alleged the érime was committed. Johnson v. United States, 207 F.”
— Nev. Rev. Stat. § 174.085(4) — 2 cases
State v. Connery, 679 P.2d 1266 (Nev. 1984).
“2d 1028 (1973); NRS 174.085(4). Retrial is not prohibited by the double jeopardy bar if a prosecutor demonstrates “manifest necessity” for the mistrial.”
Fernandez (Rene) v. State (Nev. 2013).
“Appellant failed to demonstrate that he was prejudiced. The State's experts testified regarding their testing of the cocaine and additional evidence discovered in the vehicle.”
— Nev. Rev. Stat. § 174.085(5) — 8 cases
Sheriff, Washoe Cnty. v. Marcus, 995 P.2d 1016 (Nev. 2000).
“In that petition, Marcus argued that Nevada common law has established a “be prepared or lose” rule that cannot be and is not modified by revised NRS 174.085. At a brief hearing on the matter, the district court granted the writ, concluding that the statute did not excuse the…”
Sheriff, Clark Cnty. v. Warner, 926 P.2d 775 (Nev. 1996).
“Subsequently, the district attorney, with notice to Warner, presented the case to a second grand jury between July 16, 1992, and August 20, 1992. Warner was represented by court-appointed counsel, and expert witnesses testified on behalf of Warner.”
City of Henderson Vs. Amado, 2017 NV 36 (Nev. 2017).
“In 1997, the Legislature amended NRS 174.085(5) to its current form: 5. The prosecuting attorney, in a case that the prosecuting attorney has initiated, may voluntarily dismiss a complaint: (a) Before a preliminary hearing if the crime with which the defendant is charged is a…”
City of Henderson Vs. Amado, 2017 NV 36 (Nev. 2017).
“In 1997, the Legislature amended NRS 174.085(5) to its current form: 5. The prosecuting attorney, in a case that the prosecuting attorney has initiated, may voluntarily dismiss a complaint: (a) Before a preliminary hearing if the crime with which the defendant is charged is a…”
Gilbaugh (Jon) v. Dist. Ct. (State) (Nev. 2016).
“Petitioner Jon Gilbaugh contends that the district court erred in concluding that the State could seek an indictment after voluntarily dismissing charges pursuant to NRS 174.085(5). We conclude that petitioner has not demonstrated that the district court manifestly abused its…”
— Nev. Rev. Stat. § 174.085(5)(b) — 2 cases
City of Henderson Vs. Amado, 2017 NV 36 (Nev. 2017).
“In 1997, the Legislature amended NRS 174.085(5) to its current form: 5. The prosecuting attorney, in a case that the prosecuting attorney has initiated, may voluntarily dismiss a complaint: (a) Before a preliminary hearing if the crime with which the defendant is charged is a…”
City of Henderson Vs. Amado, 2017 NV 36 (Nev. 2017).
“In 1997, the Legislature amended NRS 174.085(5) to its current form: 5. The prosecuting attorney, in a case that the prosecuting attorney has initiated, may voluntarily dismiss a complaint: (a) Before a preliminary hearing if the crime with which the defendant is charged is a…”
— Nev. Rev. Stat. § 174.085(6) — 1 case
Sheriff, Washoe Cnty. v. Marcus, 995 P.2d 1016 (Nev. 2000).
“In that petition, Marcus argued that Nevada common law has established a “be prepared or lose” rule that cannot be and is not modified by revised NRS 174.085. At a brief hearing on the matter, the district court granted the writ, concluding that the statute did not excuse the…”
— Nev. Rev. Stat. § 174.085(6)(a) — 2 cases
City of Henderson Vs. Amado, 2017 NV 36 (Nev. 2017).
“In 1997, the Legislature amended NRS 174.085(5) to its current form: 5. The prosecuting attorney, in a case that the prosecuting attorney has initiated, may voluntarily dismiss a complaint: (a) Before a preliminary hearing if the crime with which the defendant is charged is a…”
City of Henderson Vs. Amado, 2017 NV 36 (Nev. 2017).
“In 1997, the Legislature amended NRS 174.085(5) to its current form: 5. The prosecuting attorney, in a case that the prosecuting attorney has initiated, may voluntarily dismiss a complaint: (a) Before a preliminary hearing if the crime with which the defendant is charged is a…”
— Nev. Rev. Stat. § 174.085(7) — 4 cases
Thompson v. State, 221 P.3d 708 (Nev. 2009).
“562(1) states: "[e]xcept as otherwise provided in NRS 174.085,[ [3] ] an order for the dismissal of the action, as provided in NRS 178.”
Sheriff, Washoe Cnty. v. Marcus, 995 P.2d 1016 (Nev. 2000).
“In that petition, Marcus argued that Nevada common law has established a “be prepared or lose” rule that cannot be and is not modified by revised NRS 174.085. At a brief hearing on the matter, the district court granted the writ, concluding that the statute did not excuse the…”
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