by Douglas Ankney

The Supreme Court of Nevada held that district courts have no discretion to deny a motion to set aside the judgment of conviction under NRS 176A.240(6)(a) when filed by a defendant who meets the statutory requirements.

Christopher Kabew pleaded guilty to attempted residential burglary. The district court imposed a suspended sentence of 12-­36 months, placed Kabew on probation for up to 24 months, and, inter alia, required Kabew to enroll in and complete the drug court program (“DCP”). This was Kabew’s first and only felony conviction.

After successfully completing the DCP, Kabew moved that the case be dismissed pursuant to NRS 176A.240(6)(a). The district court denied Kabew’s motion but honorably discharged Kabew from probation. Kabew then filed petition for writ of mandamus to compel the district court to enter an order setting aside the judgment of conviction.

The Nevada Supreme Court observed that when interpreting a statute, it first looks to the statute’s plain language. State, Off. of the Att’y Gen. v. Just. Ct. of Las Vegas Twp. (Escalante), 392 P.3d 170 (Nev. 2017). The Court gives effect to the clear meaning of unambiguous statutes, “enforc[ing] the statute as written.” Id.

The Court stated that “NRS 0.025(1)(d) provides that ‘shall’ imposes a duty to act unless otherwise expressly provided in a particular statute or required by the context.” Because of that definition, courts “generally construe ‘shall’ as mandatory.” Thomas v. State, 498 P.2d 1314 (Nev. 1972).

The Court explained: “NRS 176A.240(6) provides two outcomes after a defendant successfully completes a substance abuse treatment program as a condition of probation…. If the defendant has no prior felony conviction and has not previously failed a specialty court program, subsection 6(a) provides that the district court ‘[s]hall discharge the defendant and dismiss the proceedings or set aside the judgment of conviction.’ But if the defendant has previously been convicted of a felony or failed a specialty court program, subsection 6(b) provides that the district court ‘[m]ay discharge the defendant and dismiss the proceedings or set aside the judgment of conviction.’”

The Court reasoned: “Clearly, the use of ‘shall’ and ‘may’ in the two subsections indicates that the Legislature used ‘shall’ in subsection 6(a) to differentiate between defendants based on their history when it comes to felony convictions and specialty court programs…. Because the statute uses ‘shall’ with respect to defendants with no prior felony convictions or failed efforts in a specialty court program and ‘may’ with respect to repeat offenders and those who previously failed to complete a specialty court program, the Legislature clearly intended to remove a district court’s discretion under subsection 6(a) while affording a district court discretion under subsection 6(b). Reading the word ‘shall’ in NRS 176A.240(6)(a) as discretionary would thwart, not further, that legislative objective. We therefore interpret the word ‘shall’ by its ordinary meaning as provided in NRS 0.025(1)(d).”

Having held that NRS 176A.240(6)(a) removes judicial discretion, the Court ruled that the district court failed to perform a duty required by law.

Accordingly, the Court granted Kabew’s petition and directed the clerk to issue a writ of mandamus directing the district court to enter an order setting aside the judgment of conviction. See: Kabew v. Eighth Judicial District Court, 545 P.3d 1137 (Nev. 2024).  

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