AUGUST PAUL GILMORE JR v. THE STATE OF NEVADA (2025)

ORDER DENYING PETITION

This original petition for a writ of mandamus challenges a district court order granting the State's motion to dismiss the criminal charges against petitioner August Paul Gilmore, Jr., without prejudice. Gilmore argues the district court manifestly abused or arbitrarily or capriciously exercised its discretion by granting the motion because the charges should have been dismissed with prejudice.

“A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, NRS 34.160, or to control a manifest abuse or arbitrary or capricious exercise of discretion.” State v. Eighth Jud. Dist. Ct. (Armstrong), 127 Nev. 927, 931, 267 P.3d 777, 779 (2011). A writ of mandamus is an extraordinary remedy, and whether a petition for extraordinary relief will be considered is solely within the court's discretion. See Smith v. Eighth Jud. Dist. Ct., 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). It is petitioner's burden to demonstrate that extraordinary intervention is warranted. Pan v. Eighth Jud. Dist. Ct., 120 Nev. 222, 228, 88 P.3d 840, 844 (2004).

The State filed a motion to dismiss the charges against Gilmore without prejudice. In the motion, the State alleged it was unable to secure testing of important evidence prior to the close of discovery and prior to trial. The State argued that it sent the evidence for testing months before its motion and that the analyst who would perform the testing was out on medical leave. In his opposition, Gilmore argued the dismissal should be with prejudice because the State failed to demonstrate good cause for the dismissal where the State knew it needed the testing to be done and did not diligently seek that testing out. The district court determined the State demonstrated good cause based on the unavailability of the crime lab analyst and granted the State's motion to dismiss without prejudice. See NRS 174.085(7) (“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.”).

Given the information the district court was presented with in the motion to dismiss without prejudice, the opposition, and the reply, we conclude the district court's granting of the motion was not a manifest abuse or arbitrary or capricious exercise of discretion.¹ See Armstrong, 127 Nev. at 931-32, 267 P.3d at 780 (defining an arbitrary or capricious exercise of discretion and a manifest abuse of discretion). Accordingly, we

ORDER the petition DENIED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   We note that Gilmore filed a motion for reconsideration of the district court's order and provided additional information in that motion. However, the district court did not consider that motion because Gilmore failed to follow the local district court rules when filing a motion for reconsideration. Gilmore does not challenge the district court's decision to deny the motion for reconsideration on procedural grounds. As the district court did not consider that motion or the information contained therein when issuing the challenged order, we do not consider it when determining whether the district court manifestly abused or arbitrarily or capriciously exercised its discretion by granting the dismissal without prejudice.