Sheriff, Clark County v. Provenza

630 P.2d 265 (1981)

SHERIFF, CLARK COUNTY, Nevada, Appellant, v. Michael J. PROVENZA, Respondent.

No. 12572.

Supreme Court of Nevada.

July 2, 1981.

Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Clark County Dist. Atty., and David P. Schwartz, Deputy Dist. Atty., Las Vegas, for appellant.

Goodman, Oshins, Brown & Singer, and William B. Terry, Las Vegas, for respondent.

PER CURIAM.

Appellant Sheriff of Clark County has appealed from a district court order granting respondent Provenza's petition for a writ of habeas corpus.

In granting the writ, the district judge found that there was insufficient evidence to establish probable cause to hold Provenza for trial. On this appeal, which was scheduled for oral argument at the request of the Clark County District Attorney pursuant to NRAP 34(f)(3), we are asked by the state to review the record and make an independent determination as to the sufficiency of the evidence.

NRS 34.380 permits the state to appeal from a district court order granting a writ of habeas corpus. NRS 34.380(6). There is no corresponding appellate review from orders denying pretrial petitions. Gary v. Sheriff, 96 Nev. 78, 608 P.2d 1106 (1980); Konstantinidis v. Sheriff, 96 Nev. 285, 607 P.2d 584 (1980).

Considerations of judicial efficiency provide an independent basis in support of our reluctance to review probable cause factual determinations in pretrial matters. Kussman v. District Court, 96 Nev. 54, 612 P.2d 679 (1980). Although we have recognized that there is a different degree of finality between the denial and granting of habeas relief, Gary, supra, broad review by this Court of factual issues related to probable cause would in many instances be inconsistent with sound judicial administration.

The trial court is the most appropriate forum in which to determine factually whether or not probable cause exists. In Re Eastham, 96 Nev. 785, 617 P.2d 1304 (1980). Absent a showing of substantial error on the part of the district court in reaching such determinations, this court will not overturn the granting of pretrial habeas petitions for lack of probable cause.

Accordingly, the order of the district court granting respondent's pretrial petition for a writ of habeas corpus is affirmed.