motion. In a hearing on the motion, the district court confirmed with 

Hoxie that he wished to withdraw his guilty plea to attempted coercion 

and plead guilty to conspiracy to commit coercion, a gross misdemeanor. 

The district court granted the motion, determining that "[b]ecause the 

defendant has already successfully completed his probation and he has 

been honorably discharged, despite the fact that this was not part of the 

original plea negotiations, given the stellar way in which the defendant 

has performed, I'm going to grant his request and permit [him] to plead 

guilty to conspiracy to commit coercion, a gross misdemeanor." The 

district court subsequently entered an amended judgment of conviction 

adjudicating Hoxie of conspiracy to commit coercion and sentenced him to 

"credit for time served." This writ petition followed. 

A writ of mandamus may issue to compel the performance of 

an act which 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, see Round Hill Gen. Improvement Dist. v. 

Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). Mandamus is an 

extraordinary remedy, and it is within the discretion of this court to 

determine if a petition will be considered. See Poulos v. Eighth Judicial 

Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982). A writ of 

prohibition may issue to arrest the proceedings of a district court 

exercising its judicial functions, when such proceedings are in excess of 

the jurisdiction of the district court. NRS 34.320. Neither writ will issue 

if the petitioner has a plain, speedy, and adequate remedy in the ordinary 

course of the law. See NRS 34.170; NRS 34.330. Petitioner bears the 

burden of demonstrating that our intervention by way of extraordinary 

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relief is warranted. Pan u. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 

88 P.3d 840, 844 (2004). Because the State cannot appeal the amended 

judgment of conviction, we elect to exercise our discretion and consider the 

petition) 

The State challenges the district court's authority to allow 

Hoxie to withdraw his guilty plea to a felony and enter a guilty plea to a 

gross misdemeanor charge after completing his sentence. We first begin 

with the district court's decision to allow Hoxie to withdraw his guilty plea 

to attempted coercion. 2"Following sentencing, a guilty plea may be set 

aside only to correct a manifest injustice." Baal v. State, 106 Nev. 69, 72, 

787 P.2d 391, 394 (1990); see NRS 176.165 ("To correct manifest injustice, 

the court after sentence may set aside the judgment of conviction and 

permit the defendant to withdraw the plea."). The district court allowed 

Hoxie to withdraw his guilty plea because he successfully completed 

probation and his performance while on probation was "stellar." While 

Hoxie's successful completion of probation is commendable, that 

'The State appealed from the amended judgment of conviction, but 

this court dismissed the appeal for lack of jurisdiction. 

2In Harris v. State, we held that a post-conviction petition for a writ 

of habeas corpus provides the exclusive remedy for challenging the 

validity of a guilty plea made after sentencing for persons in custody on 

the conviction being challenged. However, any person who is no longer in 

custody is not subject to the exclusive-remedy language in NRS 

34.724(2)(b) regardless of whether the remedy is incident to the 

proceedings in trial court, noting the writ of coram nobis as an exception 

to the exclusive-remedy provision. 130 Nev. n.1, 329 P.3d 619, 

622 n.1 (2014). 

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circumstance does not constitute a manifest injustice that warrants 

withdrawal of his guilty plea. Cf. Rubio v. State, 124 Nev. 1032, 1039, 194 

P.3d 1224, 1228 (2008) (observing that district court may grant postconviction motion to withdraw a guilty plea that was involuntarily and 

unknowingly entered to correct manifest injustice and that manifest 

injustice may be shown by ineffective assistance of counsel); State v. 

Adams, 94 Nev. 503, 505-06, 581 P.2d 868, 869 (1978) ("Manifest injustice 

within the intendment of NRS 176.165 does not occur from the entry of a 

guilty plea to a sustainable charge."); see State v. James, 500 N.W.2d 345, 

348 (Wis. Ct. App. 1993) ("A manifest injustice occurs where a defendant 

makes a plea involuntarily or without knowledge of the consequences of 

the plea—or where the plea is entered without knowledge of the charge or 

that the sentence actually imposed could be imposed." (internal quotation 

marks omitted)). We therefore conclude that the district court manifestly 

abused its discretion by allowing Hoxie to withdraw his guilty plea to 

attempted coercion. See State v. Eighth Judicial Dist. Court (Armstrong), 

127 Nev. „ 267 P.3d 777, 780 (2011) (defining manifest abuse of 

discretion and arbitrary or capricious exercise of discretion in context of 

mandamus). 

Even if we assume that adequate grounds existed to allow 

Hoxie to withdraw his guilty plea, the district court manifestly abused its 

discretion by allowing him to plead guilty to conspiracy to commit coercion 

because it lacked authority to do so. "Whether to prosecute and what 

charge to file or bring before the grand jury are decisions that generally 

rest in the prosecutor's discretion." United States v. Batchelder, 442 U.S. 

114, 124 (1979); see United States v. Miller, 722 F.2d 562, 564 (9th Cir. 

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1983) (observing that prosecutor's discretion in charging decisions is 

"almost absolute"); Cairns v. Sheriff, 89 Nev. 113, 115, 508 P.2d 1015, 

1017 (1973) ("The matter of the prosecution of any criminal case is within 

the entire control of the district attorney."); State v. Foss, 556 N.W.2d 540, 

540 (Minn. 1996) ("Generally, a prosecutor has broad discretion in the 

exercise of the charging function and ordinarily, under the separation-ofpowers doctrine, a court should not interfere with the prosecutor's exercise 

of that discretion."); State v. Walsh, 17 P.3d 591, 595 (Wash. 2001) 

(Alexander, C.J., concurring) ("Under the principles of separation of 

powers, the charging decision is for the prosecuting attorney."). This court 

recognized long ago that "[j]udicial [p]ower, or the exercise of judicial 

functions cannot include powers or functions that do not stem from the 

basic judicial powers and functions set forth in the [Nevada] Constitution, 

unless the Constitution otherwise expressly provides." Galloway v. 

Truesdale, 83 Nev. 13, 20, 422 P.2d 237, 242-43 (1967). Therefore, 

"judicial power, and the exercise thereof by a judicial function, cannot 

include a power or function that must be derived from the basic 

Legislative or Executive powers." Id. at 21, 422 P.2d at 243; see Nev. 

Const. art. 3, § 1 (providing that government powers are divided into three 

separate departments—Legislative, Executive, and Judicial—and that "no 

persons charged with the exercise of powers properly belonging to one of 

these departments shall exercise any functions, appertaining to either of 

the others, except in the cases expressly directed or permitted in this 

constitution"). Here, the district court allowed Hoxie to plead guilty to an 

offense that was never charged by the State. No statute or constitutional 

provision authorized the district court's action and therefore we conclude 

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J. 

Cherry 

that it manifestly abused its discretion by allowing Hoxie to plead guilty to 

a gross misdemeanor charge of conspiracy to commit coercion. 3 See 

Armstrong, 127 Nev. at 267 P.3d at 780. Accordingly, we 

ORDER the petition GRANTED AND DIRECT THE CLERK 

OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the 

district court to vacate the amended judgment of conviction. 

Douglas 

Hardesty 

J. 

cc: Hon. Elizabeth Goff Gonzalez, District Judge 

Clark County District Attorney 

Clark County Public Defender 

Eighth District Court Clerk 

3We note but do not address the provisions relating to Pardon's 

Board relief in Nev. Const. art. 5, § 14 and NRS 213.020. 

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