Engle v. Dist. Ct. - Probation Discharge (Economic Hardship)

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April 16, 2026 Get Citation Alerts Download PDF Add Note

ENGLE (JULIE) v. DIST. CT. (STATE) (CRIMINAL)

Nevada Supreme Court

• Citations: 142 Nev. Adv. Op. No. 30

• Docket Number: 89183

• Opinion

• Authorities (26)

• Cited By (0)

• Summaries (0)

• Similar Cases (39.2K)

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Combined Opinion

142 Nev., Advance Opinion SC

IN THE SUPREME COURT OF THE STATE OF NEVADA

JULIE ENGLE, No. 89183
Petitioner,

vs. .
THE SECOND JUDICIAL DISTRICT Fe i L. E D ;
COURT OF THE STATE OF NEVADA, E §

IN AND FOR THE COUNTY OF : APR 16 2026
WASHOE; AND THE HONORABLE
DAVID A. HARDY, DISTRICT JUDGE,
Respondents,

and

THE STATE OF NEVADA,

Real Party in Interest. .

Original petition for a writ of mandamus challenging a district
court order denying a motion to set aside a judgment of conviction.

Petition granted in part and denied in part.

Evelyn Grosenick, Public Defender, and Kathryn Reynolds, Chief Deputy
Public Defender, Washoe County,
for Petitioner.

Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks,
District Attorney, and Kevin Naughton, Appellate Deputy District
Attorney, Washoe County,
for Real Party in Interest.

Randolph M. Fiedler, Federal Public Defender, Las Vegas; Goodwin Law
Group, PLLC, and Charles R. Goodwin, Las Vegas,
for Amicus Curiae Nevada Attorneys for Criminal Justice.

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BEFORE THE SUPREME COURT, EN BANC.

OPINION
By the Court, CADISH, J.:

Following petitioner Julie Engle’s conviction for attempted
residential burglary, the district court suspended Engle’s sentence and
placed her on probation. As conditions of probation, Engle had to complete
a specialty court program and pay restitution. Engle successfully completed
a mental health court program and moved the district court to set aside the
judgment of conviction under NRS 176A.260(6)(a). After denying the
motion because of Engle’s failure to pay restitution, the district court
dishonorably discharged her from probation.

Engle claims that the economic hardship exception in NRS
176A.430(6) excused her from NRS 176A.260(6)(a)'s requirement that a
probationer fulfill the terms and conditions of probation before having a
conviction set aside. But while NRS 176A.430(6) excuses a probation
violation for nonpayment of restitution when nonpayment is due to
economic hardship, that provision does not relieve a defendant from the
affirmative obligation to satisfy the restitution requirement to obtain a set-
aside of the conviction under NRS 176A.260(6)(a). So, the district court did
not manifestly abuse its discretion when it denied Engle’s motion to set
aside the judgment of conviction. Though writ relief is unwarranted as to
the set-aside of Engle’s conviction, Engle’s economic hardship excused her
failure to satisfy the restitution condition for purposes of an honorable
discharge from probation under NRS 176A.850. Accordingly, we grant the

petition in part to require Engle be granted an honorable discharge.

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FACTS AND PROCEDURAL HISTORY

Engle was convicted of first-offense attempted residential
burglary, a felony. In the judgment of conviction, the district court imposed
a sentence of 24 to 60 months in prison, suspended execution of the
sentence, and placed Engle on probation for 24 months. As probation
conditions, the district court ordered her to complete a specialty court
program and pay restitution in the amount of $800.

Subsequently, the mental health court entered an order finding
that Engle had successfully completed the program but returned Engle’s
case to the district court because of an unpaid balance with the Division of
Parole and Probation, which included the restitution, as well as fees. In its
review hearing letter, the mental health court found that “[d]ue to the non-
compliance with fees and restitution, Ms. Engle Completed, but did not
Graduate from, the Mental Health Court program.” In a separate order,
however, the mental health court waived the payment of fines and fees
totaling $678, finding that Engle had “insufficient income, property, or
resources to pay.”

At a later hearing before the district court, Engle made an oral
motion to set aside her conviction under NRS 176A.260(6)(a), asserting that
a set-aside was required because she complied with the terms of probation
by completing the specialty court program.! The State opposed the motion,

arguing that while Engle completed the specialty court program, setting the

'The parties referred to NRS 176A.240 in the district court, which
addresses the drug court program, rather than the mental health court
program governed by NRS 176A.260. The statutory language pertaining to
a set-aside of a conviction upon completion of a specialty court program is
identical in both statutes. Engle completed mental health court, and the
parties agree on appeal that NRS 176A.260 governs here.

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conviction aside was inappropriate because Engle failed to comply with the
financial obligations of her probation, including the payment of restitution.
Engle pointed to her economic hardship, arguing that it should excuse her
nonpayment pursuant to NRS_ 176A.4380(6). The district court
acknowledged that the mental health court had already determined that
Engle suffered an economic hardship when it waived her fines and fees but
questioned whether hardship resulting in a waiver of fees and fines in the
specialty court applied to restitution, which was a condition of Engle’s
probation.

Ultimately, the district court denied the motion, finding that
Engle did not fulfill the conditions of probation because she failed to pay
restitution and she was therefore ineligible to have her conviction set aside
under NRS 176A.260(6)(a). The district court rejected Engle’s argument
that the set-aside of her case was mandatory under the statute and Kabew
v. Kighth Judicial District Court, 140 Nev. 184, 545 P.3d 1137 (2024). The
district court opined, however, that Engle was entitled to an honorable
discharge from probation because “that’s a distinction from dismissal of the
charge or a set aside [of the conviction].” Nevertheless, the court
subsequently entered an order dishonorably discharging her from
probation. Engle petitions this court for a writ of mandamus, challenging

both district court decisions.

DISCUSSION
As the parties acknowledge, Engle has no statutory right to

appeal from the district court’s denial of her requests for honorable
discharge and the setting aside of the judgment of conviction, and she thus
lacks an adequate legal remedy, favoring consideration of her petition for
writ relief. Kabew, 140 Nev. at 186, 545 P.3d at 1139-40 (observing that a

writ of mandamus may issue to compel the district court to perform a clear

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legal duty when the petitioner lacks “a plain, speedy, and adequate remedy
at law”). Moreover, entertaining the petition will clarify an important area
of the law—namely, whether a defendant who successfully completes a
specialty court program but fails to pay restitution due to economic
hardship is entitled to have their judgment of conviction set aside. Id.
(recognizing that the scope of NRS 176A.240(6)(a)’s application presents an
important legal issue); Sonia F. v. Eighth Jud. Dist. Ct., 125 Nev. 495, 498,
215 P.38d 705, 707 (2009) (observing that “the consideration of an
extraordinary writ is often justified where an important issue of law needs
clarification” (internal quotation omitted)). Therefore, we elect to entertain
the petition.

Engle was not eligible to have her conviction set aside under NRS
176A.260(6)(a) because she did not fulfill all the conditions of her probation

Mandamus relief is proper only if petitioner establishes a clear
legal right to compel the district court’s performance of a duty in the manner
sought, and it does not le to contro] the court’s discretion unless that
discretion has been manifestly abused or exercised arbitrarily or
capriciously. Round Hill Gen. Imp. Dist. v. Newman, 97 Nev. 601, 603-04,
637 P.2d 534, 536 (1981). This court has equated a “manifest abuse of
discretion” with “[a] clearly erroneous interpretation of the law or a clearly
erroneous application of a law or rule.” State v. Highth Jud. Dist. Ct.
(Armstrong), 127 Nev. 927, 932, 267 P.3d 777, 780 (2011) Gnternal quotation
marks omitted). Because Engle’s petition presents an issue of statutory
interpretation, we review the issue de novo, State v. Barren, 128 Nev. 337,
340, 279 P.3d 182, 184 (2012) (observing that de novo review apphes to
statutory construction issues even in the context of a writ petition).

When interpreting statutes, we seek to give effect to the plain

and ordinary meaning of the words. Ramos v. State, 137 Nev. 721, 722, 499

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P.3d 1178, 1180 (2021). And whenever possible, we interpret statutes in
harmony with other related statutes to ensure a consistent and coherent
legal framework. Seput v. Lacayo, 122 Nev. 499, 502, 134 P.3d 733, 735
(2006), overruled in part by Buzz Stew, LLC v. City of North Las Vegas, 124
Nev. 224, 228 n.6, 181 P.3d 670, 672 n.6 (2008); see Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 167 (2012)
(explaining that the whole-text canon “calls on the judicial interpreter to
consider the entire text, in view of its structure and of the physical and
logical relation of its many parts’).

In certain circumstances, NRS 176A.260(1)(b) allows the district
court to enter a judgment of conviction and place a defendant on probation
subject to terms and conditions, including attendance in and completion of
a mental health court treatment program. In addition to the treatment
program condition, the terms and conditions of probation may include a
requirement that the defendant pay restitution. NRS 176A.400(1)(a). In
such a case, the failure to pay restitution is a violation of probation “unless
the defendant’s failure was caused by economic hardship resulting in his or
her inability to pay the amount due.” NRS 176A.430(6). Separately, “[u]pon
fulfillment of the terms and conditions” of probation under NRS 176A.260,
the district court “shall” discharge the defendant and set aside the judgment
of conviction unless the defendant has previously been convicted of a felony
or failed out of a specialty court program. NRS 176A.260(6)(a); Kabew, 140
Nev. at 188, 545 P.3d at 1141 (referring to the identical drug court provision
in NRS 176A.240(6)(a)). The question here is whether failing to pay
restitution due to economic hardship, which cannot be deemed a probation
violation per NRS 176A.430(6), nevertheless prevents the probationer from
fulfilling the terms and conditions of probation per NRS 176A.260(6)(a).

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Engle contends that the law compels the setting aside of her
conviction, as she successfully completed the mental health court program
and her restitution obligation is excused due to her financial hardship.
Engle cites NRS 176A.430(6) and this court’s decision in Kabew as the legal
authority requiring the court to set aside her conviction. The State
challenges Engle’s interpretation of those authorities as overly broad and
inaccurate, and we agree. Kabew did not address the precise issue of setting
aside a conviction when the defendant successfully completes the specialty
court program condition of their probation but fails to pay the restitution
condition of their probation due to financial hardship, and we are not
persuaded that either Kabew or NRS 176A.430(6) applies in the way Engle
argues.”

In Kabew, petitioner Christopher Kabew pleaded guilty to
attempted residential burglary and was placed on probation. 140 Nev. at
184, 545 P.3d at 1138. Per the terms of his probation, Kabew successfully
completed the drug court treatment program and moved the district court
to set aside his conviction under NRS 176A.240(6)(a). Jd. Without
explanation, the district court denied the motion and honorably discharged

Kabew from probation. Id.

2Similarly, none of the cases cited by the dissent address the issue of
payment of restitution as a condition precedent to setting aside a judgment
of conviction. Attaguile v. State, 122 Nev. 504, 506-08, 134 P.3d 715, 717-
18 (2006) (addressing issues of treatment program eligibility and the
interpretation of “two or more separate instances’ within the context of the
statute); State v. Second Jud. Dist. Ct. (Hearn), 134 Nev. 783, 786-88, 477
P.3d 154, 158-59 (2019) (analyzing the constitutionality of the prosecutorial
veto); Hager v. State, 135 Nev 246, 250-55, 447 P.3d 1063, 1066-70 (2019)
(addressing whether Hager, who was assigned to and completed a mental
health court diversion program, was “adjudicated as mentally ill” within the
meaning of the statute).

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Kabew petitioned for a writ of mandamus, arguing that NRS
176A.240(6)(a) mandated that his conviction be set aside because it uses the
word “shall.” Jd. at 186, 545 P.3d at 1139. Interpreting the statute
according to its plain text, we determined that if a defendant successfully
completes the drug court program and has not previously been convicted of
a felony or failed a specialty court program, the district court must discharge
the defendant and dismiss the proceedings or set aside the judgment of
conviction. Jd. at 187, 545 P.3d at 1140. We concluded that on Kabew’s
facts, where it was undisputed that he successfully completed the program
and had no prior felony conviction or specialty court failure, NRS
176A4.240(6)(a) “removes judicial discretion” and thus the district court
failed to perform a duty required by law when it declined to set aside the
conviction. Jd. at 189, 545 P.3d at 1142.

Like Kabew, Engle was required to complete the specialty court
program as a condition of her probation, and she successfully completed
that program according to the mental health court’s order returning her
case to district court. She similarly had not previously been convicted of a
felony or failed a specialty court program. However, unlike Kabew, Engle
was ordered to and failed to pay restitution, which was a condition of her
probation. This distinction is pivotal. Kabew specifically held “that NRS
176A.240(6)(a) removes judicial discretion in cases where a defendant
fulfills the terms and conditions of probation.” Id. (emphasis added). Here,
that did not occur, as Engle did not fulfill all the conditions of her probation.
Accordingly, we conclude that Engle’s case is not on all fours with Kabew,
and NRS 176A.260(6)(a) does not mandate that her judgment of conviction
be set aside unless her economic hardship excuses her failure to fulfill the

restitution condition of her probation. We conclude that it does not.

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While NRS 176A.430(6) provides that the failure to pay
restitution due to economic hardship is not a violation of the terms and
conditions of probation, a nonviolation of a condition is not equivalent to
fulfilling that condition, particularly where restitution imposes an
affirmative obligation on the probationer to compensate their victim. A
statute within the same statutory scheme, NRS 176A.850(1), supports this
plain language interpretation of NRS 176A.430(6). In particular, NRS
176A.850 sets forth three distinct categories of probationers eligible for
honorable discharge, thereby distinguishing the first group of probationers
(those who fulfill the terms and conditions of their probation) from the third
group of probationers (those who demonstrate fitness for honorable
discharge but cannot satisfy the restitution requirement due to economic
hardship):

1. A person who:

(a) Has fulfilled the conditions of probation
for the entire period thereof:

(b) Is reeommended for earlier discharge by
the Division; or

(c) Has demonstrated fitness for honorable
discharge but because of economic hardship,
verified by the Division, has been unable to make
restitution as ordered by the court,

may be granted an honorable discharge from
probation by order of the court.

Thus, NRS 176A.850(1) shows that, within the larger statutory scheme of
NRS Chapter 176A, the legislature views probationers who fulfill all the
conditions of probation, including restitution, as distinct from those who fail
to pay restitution due to economic hardship. Meza-Carmona v. Garland,

113 F.4th 1163, 1167 (9th Cir. 2024) (explaining that “a word or phrase is

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presumed to bear the same meaning throughout a text” (internal quotation
marks omitted)).

NRS 176A.850(1) governs a probationer’s eligibility for
honorable discharge and incorporates excusal of restitution based on
economic hardship but provides for district court discretion in making that
determination, while NRS 176A.260(6)(a) removes all judicial discretion by
mandating that a conviction be set aside “upon fulfillment of the terms and
conditions [of probation].” Compare NRS 176A.850(1) (providing that a
probationer “may be granted an honorable discharge from probation by
order of the court”), with NRS 176A.260(6) (providing that the court “/s/hall
discharge the defendant and dismiss the proceedings or set aside the
judgment of conviction”). That NRS 176A.850(1) explicitly lists economic
hardship as a nonviolation of probation for purposes of discretionary
honorable-discharge eligibility supports that the legislature intentionally
omitted such an exemption from NRS 176A.260(6) for purposes of the
mandatory setting aside of a conviction based on fulfillment of probation
conditions. State v. Javier C., 128 Nev. 536, 541, 289 P.38d 1194, 1197 (2012)
(“Nevada follows the maxim .. . the expression of one thing is the exclusion
of another.”); Urias v. First Jud. Dist. Ct., 141 Nev., Adv. Op. 24, 568 P.3d
576, 581 (2025) (explaining that the legislature’s omission of specific
language that appears elsewhere in the statutory scheme should be deemed
intentional).

Engle’s reliance on NRS 176A.840(1) fares no better. That
provision allows probationers who meet certain criteria to be discharged

early where they failed to pay restitution due to economic hardship. NRS

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176A.840(1).2 But that provision similarly does not mandate that the
district court grant an early discharge when the statutory requirements are
met—rather, it imposes an obligation on the Division of Parole and
Probation to petition the court to recommend an early discharge and that
probationer “may be granted an honorable discharge” by the court under
NRS 176A.850(1)(b). Nor does NRS 176A.840 apply exclusively to
probationers who participate in a specialty court program. NRS
176A,840(1)(d) requires the completion of a specialty court program “as
mandated by the court or the Division,” but that specific requirement would
not apply in cases where the probationer was not ordered to complete a
specialty court program as a condition of probation. We cannot ignore these
salient differences in the statutory language and the fact that NRS
176A.260(6) lacks the economic hardship exemptions found in NRS
176A.850(1) and NRS 176A.840(1). See Urias, 141 Nev., Adv. Op. 24, 568
P.3d at 581.

The dissent asserts that the completion of the mental health
court program is the only term and condition that must be satisfied to
trigger a mandatory set-aside under NRS 176A.260. But the plain text of
NRS 176A.260(1)(b) and NRS 176A.260(6)(a) says otherwise. That the
plural form of “terms and conditions” is used in both subsections shows that

the legislature contemplated other probation requirements—such as

3NRS 176A.840(1) provides that the Division of Parole and Probation
“shall petition the court to recommend the early discharge” of a probationer
who (1) “has not violated any condition of probation during the immediately
preceding 12 months,” (2) has completed any specialty court program
mandated by the court, and (3) has either paid restitution in full “or,
because of economic hardship that is verified by the Division, has been
unable to make restitution as ordered by the court,” among other
requirements.

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restitution—being satisfied before the court must set aside the conviction.
NRS 176A.260(1)(b) (explaining that the court may “place the defendant on
probation upon terms and conditions that must include attendance and
successful completion of a [specialty or treatment] program’ (emphasis
added)); NRS 176A.260(6)(a) (“Upon fulfillment of the terms and
conditions,’ the court must set aside the conviction. (emphasis added)); see
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 140 (2012) (explaining that “[wJords are to be given the meaning
that proper grammar and usage would assign them”).

As the district court observed in denying Engle’s request to set
aside her conviction, Nevada’s constitution protects a victim’s right to full
and timely restitution. Nev. Const. art. 1, § 8A(1)(/). Because the setting
aside of Engle’s judgment of conviction could undermine that right, that
constitutional provision reinforces our reading of NRS 176A.260(6). State
v. Castaneda, 126 Nev. 478, 481, 245 P.3d 550, 552 (2010) (explaining that
“we adhere to the precedent that every reasonable construction must be
resorted to, in order to save a statute from unconstitutionality” (internal
quotation marks omitted)). Though NRS 176A.850(3) preserves criminal
restitution as a civil liability once a defendant is discharged from probation,

that statute anticipates the existence of a judgment of conviction upon

which to base a corresponding civil liability. Compare NRS 176A.850(3)

(mandating “civil liability [for unpaid restitution] arising upon the date of
discharge” from probation to be enforced via NRS 176.275), with NRS
176.275(2) (‘A judgment which requires a defendant to pay restitution:
(a) [m]ay be recorded, docketed and enforced as any other judgment for

money rendered in a civil action” and “(b) [d]oes not expire until the

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judgment is satisfied.” (emphases added)).4 Therefore, we conclude that
Engle’s economic hardship under NRS 176A.430(6) does not excuse her
failure to fulfill the restitution condition of her probation as required to set
aside a conviction under NRS 176A.260(6)(a). Accordingly, the district
court did not manifestly abuse its discretion in denying Engle’s motion to
set aside her judgment of conviction.

Engle was entitled to an honorable discharge under NRS 176A.850(1)
As discussed above, NRS 176A.850(1) confers discretion on the

district court with respect to granting an honorable discharge from
probation, as it provides that the court may grant such a discharge under
certain circumstances. State v. Am. Bankers Ins. Co., 106 Nev. 880, 882,
802 P.2d 1276, 1278 (1990) (explaining that “may” is construed as
permissive “unless legislative intent demands another construction”).
Though a discretionary decision, the facts support Engle’s theory for writ
relief as to the district court’s dishonorable discharge. The State conceded
in district court that Engle did “amazingly well” in mental health court and
agreed in its briefing here that Engle was entitled to an honorable discharge
under NRS 176A.850. And the district court found that (1) Engle completed

the mental health court program, (2) the court did not need an evidentiary

4Engle proposes that we could issue a writ instructing the district
court to have her sign a civil confession of judgment to preserve the
restitution obligation and thus avoid a constitutional conflict. But NRS
176A.265(1) provides that a defendant’s records are automatically sealed
after the defendant is discharged under NRS 176A.260, which may conflict
with NRS 17.100(2)’s requirement that a confession of judgment “state
concisely the facts out of which it arose.” Even if the district court had the
discretion to order Engle to sign a civil confession of judgment for her
outstanding restitution, Engle does not point to any authority that requires
the district court to do so; therefore, Engle has not shown entitlement to
mandamus on this basis.

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hearing to verify the mental health court’s conclusion that she was
incapable of meeting her financial obligations, and (3) she “[was] entitled to
a discharge from probation honorably.” So, in ordering a dishonorable
discharge, the district court acted in direct contravention of its own factual
findings and legal conclusions therefrom, without ever identifying any
reason to do so. Armstrong, 127 Nev. at 932, 267 P.3d at 780 (defining
“arbitrary” as based on preference rather than reason and defining
“capricious” as contrary to the evidence). Accordingly, we conclude that the
district court exercised its discretion in an arbitrary and capricious manner
when it dishonorably discharged Engle from probation, warranting writ
relief.
CONCLUSION

Although NRS 176A.430(6) provides that a criminal
defendant’s failure to pay restitution due to economic hardship does not
result in a violation of the restitution condition of probation, that protection
does not equate to fulfillment of the restitution condition as required to have
a criminal conviction set aside or dismissed under NRS 176A.260(6)(a).
Because Engle failed to satisfy the restitution condition of her probation, a
set-aside was not mandated, and the district court did not manifestly abuse
its discretion in denying Engle’s motion to set aside her conviction.
However, Engle’s economic hardship excused her failure to pay restitution
for purposes of her eligibility for an honorable discharge from probation
under NRS 176A.850(1). We therefore conclude that the district court
exercised its discretion arbitrarily and capriciously when it dishonorably
discharged Engle. Accordingly, we deny Engle’s petition as to the district
court's denial of her request to set aside her conviction and grant the
petition as to Engle’s probation status. We direct the clerk of this court to

issue a writ of mandamus directing the district court to vacate its

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specialty court program, that “[w]hen a defendant fulfills the terms and
conditions of probation pursuant to a...program,” the defendant is
entitled to be discharged from probation and have the judgment of
conviction set aside. Kabew, 140 Nev. at 184, 545 P.3d at 1138-39. NRS
176A.260(6), however, is ambiguous as to what must be shown to merit
relief, It does not clarify whether fulfillment refers to all terms and
conditions of probation or those specifically addressed in that statute,
namely attendance and successful completion of a program for treatment of
mental illness or intellectual disability.

We explained in Kabew that the purpose of such a provision is
to “provid[e] first-time felons who have not previously failed to complete a
[specialty] court program an opportunity to reenter society without the
impediments of a felony conviction.” Jd. at 188, 545 P.3d at 1141. The
district court has no discretion in discharging a defendant from probation
and setting aside a conviction under such a provision; it is a statutory
mandate. Id. at 189, 545 P.3d at 1142. As the majority correctly observes,
Kabew did not specifically address terms and conditions beyond
participation in a specialty court program. This distinction is not material,
however, as close examination of the statute, its purpose, and its legislative
history demonstrate.

“Under the whole text canon, provisions within a common
statutory scheme are interpreted harmoniously with one another in
accordance with the general purpose of the statutes.” Urias v. First Jud.
Dist. Ct., 141 Nev., Adv. Op. 24, 568 P.3d 576, 581 (2025) (citation modified).
NRS 176A.840 provides for early discharge from probation and was enacted
alongside NRS 176A.240(6)(a), which provides the same relief using the
same language as NRS 176A.260(6)(a) in the context of a substance use
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at 1141. In each of these instances, a probationer was entitled to relief upon

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completion of the specialty court or treatment program itself; that is the
term and condition with which “fulfillment” in NRS 176A.260 is concerned.

The court should now clarify that the statutory discharge and
dismissal applies upon successful completion of an assigned mental health
or intellectual disability treatment program. Other conditions of probation
that may remain incomplete should not stand in the way of this relief. We
have interpreted these provisions consistently since Attaguile in 2006, and
the legislature has enacted provisions establishing the same relief as NRS
176A.260(6)(a) on three subsequent occasions. We should construe the
legislature as having intended that the provision operate in the same
manner as we have previously described this provision and its analogues as
operating in several instances—upon completion of the specialty court or
treatment program. See Hoyt v. Paysee, 51 Nev. 114, 124, 269 P. 607, 609
(1928) (presuming that the legislature was aware of relevant caselaw in
enacting a statute).

The majority determines that the plural phrasing “terms and
conditions of probation” entails that the legislature envisioned fulfillment
of multiple conditions precedent before a conviction may be set aside. This,
however, disregards the legislature’s inartful drafting and credits it with a
degree of precision the text cannot bear. Significantly, at no point in NRS
Chapter 176A or elsewhere is a “term” distinguished from a “condition” of
probation, nor has this court ever identified a difference between them.
Generally, statutes should be construed to give meaning to each word in
them, Mangarella v. State, 117 Nev. 130, 133, 17 P.3d 989, 991 (2001), and
different wording indicates different meanings, Williams v. State, Dep’t of
Corr., 133 Nev. 594, 598, 402 P.38d 1260, 1264 (2017). The legislature has

run afoul of both principles: as there is no daylight between a term and a

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condition, each cannot be given independent meaning or different
meanings. The legislature’s usage of “terms” and “conditions” exhibits a
mechanical usage that does not suggest careful drafting, and the text thus
repels efforts to treat the plurals of “terms” and “conditions” as precisely
selected.

The court therefore should interpret the “inartfully drawn or
worded” phrase so as to discern and give force to the statute’s legislative
purpose. Fairbanks v. Pavlikowski, 83 Nev. 80, 84, 423 P.2d 401, 404
(1967). See also United States v. Epskamp, 832 F.3d 154, 162 (2d Cir. 2016)
(“[M]erely because a statute contains ‘examples of inartful drafting’ does not
mean courts are incapable of discerning its meaning, particularly with the
aid of broader statutory context.”). The legislature enacted these treatment
programs and specialty courts to assist the criminal justice system in
addressing circumstances specific to particular groups of individuals,
Hearn, 134 Nev. at 788, 432 P.3d at 160, and ultimately permit those
successfully completing programs to reenter society without being
encumbered by a felony conviction, Kabew, 140 Nev. at 188-89, 545 P.3d at
1141-42. Asin the previous instances discussed above, this aim is promoted
by providing relief upon completion of the treatment program or specialty
court. Impeding access to this relief, as the majority does today, on the basis
of other conditions unrelated to the circumstances for which the legislature
specifically authorized the diversion does not promote the legislative intent
of these statutory schemes. In short, the use of the plural grammatical
number cannot bear the weight the majority places on it.

Here, the district court ordered Engle to complete a specialty
court program and pay restitution. While Engle was unable to pay

restitution because of economic hardship, she successfully completed the

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mental health court program.? The district court denied Engle’s motion to
set aside the judgment, however, despite acknowledging that if it
“sentence[d] somebody to the Mental Health Court and they complete, it’s a
lockbox.... They get the [benefit of] the dismissal.” This was an accurate
statement of law that the district court disregarded in denying Engle’s
motion and that the majority again disregards today.®

The majority's conclusion that unpaid restitution prevents NRS
176A.260 relief has a further unacceptable consequence. The result of the
opinion is that, based solely on a financial inability to pay restitution, an
indigent defendant cannot have a conviction set aside. The United States
Supreme Court has determined that it is unconstitutional to punish a
probationer by revoking probation for a person who “has made all
reasonable efforts to pay the fine or restitution, and yet cannot do so
through no fault of his [or her] own.” Bearden v. Georgia, 461 U.S. 660, 668-
69 (1983). The majority’s decision thus creates a concerning constitutional

problem of treating people differently because of indigency.

2The majority opinion notes that Engle completed but did not
graduate from the mental health court program. But “successful completion
of a program” is all that is required. NRS 176A.260(1)(b) (emphasis added).
Thus, for purposes of NRS 176A.260, completion versus graduation is a
distinction without a difference.

3In the second part of the opinion, the majority reverses the district
court’s order dishonorably discharging Engle from probation and orders an
honorable discharge. Because NRS 176A.260(6)(a) requires both a
discharge and a setting aside of the conviction, whether that discharge is
honorable or dishonorable is neither here nor there. I therefore dissent from
that portion of the opinion insofar as NRS 176A.260(6)(a) renders that

determination unnecessary.

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Setting the conviction aside does not prevent the execution of the restitution
order

The district court raised concern that setting aside a conviction
under NRS 176A.260 with restitution due subverts a victim’s constitutional
right to restitution. Its concern is well intentioned but misplaced, as setting
aside the conviction does not void the obligation to pay restitution. Both
things can be true: the defendant is entitled to discharge and dismissal upon
completion of specialty court, and the victim is entitled to restitution.
Setting aside a conviction does not absolve the defendant of paying
restitution.

NRS 176.275(1) provides that a judgment requiring a defendant
to pay restitution “constitutes a lenin hke manner as a judgment for money
rendered in a civil action.” A judgment ordering restitution “[m]Jay be
recorded, docketed, and enforced as any other judgment for money rendered
in a civil action” and “[d]oes not expire until the judgment is satisfied.” NRS
176.275(2); see also NRS 179.225(8) (providing that if extradition restitution
is due after the sentence is completed, the remaining amount constitutes a
civil liability). “An independent action to enforce a judgment which requires
a defendant to pay restitution may be commenced at any time.” NRS
176.275(8).

Setting aside the judgment of conviction does not place the
parties in circumstances as if the judgment never existed. The statute itself
does not envision such an outcome. NRS 176A.260(7) recognizes that the
judgment remains “a conviction for the purpose of additional penalties
imposed for second or subsequent convictions or the setting of bail.” While
it is difficult to balance that with its provision——in the next sentence—that
“ldjischarge and dismissal restores the defendant, in the contemplation of

the law, to the status occupied before the arrest, indictment or information,”

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NRS_ 176A.260(7), the statute should be construed in light of the
constitution and other statutes. See State v. Glusman, 98 Nev. 412, 419,
651 P.2d 639, 644 (1982) (“We have long recognized, as a general principle,
that statutes should be construed, if reasonably possible, so as to be in
harmony with the constitution.”). Under the Nevada Constitution, crime
victims have a right “[t]o full and timely restitution.” Nev. Const. art. 1,
§ 8A(1)(). The district court, correspondingly, must set an appropriate
restitution amount for each victim. NRS 176.033(3).

Analogous decisions in sister states are instructive. California statute provides that a probationer who is discharged early from
probation shall “be released from all penalties and disabilities resulting
from the” conviction even if restitution is outstanding. People v. Seymour,
[192 Cal. Rptr. 3d 113, 120](https://www.courtlistener.com/opinion/2832313/people-v-seymour/#120) (Ct. App. 2015). Notably distinguishable,
Seymour observes, are statutory mechanisms whereby discretionary relief
may be provided. Jd. at 121-22. In such instances, outstanding restitution
obligations would prevent the court from providing relief from the penalties
and disabilities of the conviction. Jd. But here, as in Seymour, the statutory
relief is mandatory. Nevertheless, that mandatory relief does not excuse
paying the remaining amount of restitution, which in California, as in
Nevada, is constitutionally owed. Jd. at 120; accord People v. Holman, 155
Cal. Rptr. 3d 164 (Ct. App. 2013). The outstanding restitution likewise does
not constitute a basis on which release from the penalties and disabilities
of the conviction may be denied. Seymour, 192 Cal. Rptr. 3d at 126. Both
the probationer’s relief and the victim’s recovery of restitution are
mandatory, and the statutes can and should be construed to give full force

to both. Jd. Nevada’s constitutional and statutory schemes align with

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California’s in these regards, and the court should take California’s
interpretation of these provisions as instructive.

We should construe the intersection between the relevant
constitutional right and statutes similarly. Doing so would serve the goals
of harmonizing the relevant statutes and avoiding a constitutional conflict
and also advance the aims sought by both probation and restitution.
“[P]robation is an act of grace of the State,” NRS 213.10705, that aims
broadly to further a probationer’s rehabilitation, Seim v. State, 95 Nev. 89,
93, 590 P.2d 1152, 1154 (1979), while restitution aims to make the victim
whole, Nied v. State, 188 Nev. 275, 280, 509 P.3d 36, 42 (2022). Diversion
to specialty courts allows individuals who complete them “to reenter society
without the impediments of a felony conviction.” Kabew, 140 Nev. at 188,
545 P.38d at 1142. Lacking these impediments, an individual will be far
more able to work to earn the money necessary to make restitution. Such
integration in the community will facilitate the individual's rehabilitation.
See Adi Leibovitch, Punishing on a Curve, 111 Nw. U.L. Rev. 1205, 1247
(2017) “Many specialized courts, however, do not merely punish differently;
they also treat and rehabilitate, protect victims, and promote other social
goals. Juvenile, veterans, and mental-health courts are meant to
emphasize the rehabilitation and social integration of unique populations
of offenders.”). These practical realities advance the policy objectives the
legislature set forth in both restitution and probation-relief contexts. NRS
176A.260(7) states that the discharge “restores the defendant” to the status
quo ante. Restitution aims to similarly restore the victim. Recognizing the
relief that a probationer is entitled to in NRS 176A.260(6)(a) and that the
restitution obligation remains in effect best serves both aims. Cf. Gallagher

v. City of Las Vegas, 114 Nev. 595, 599-600, 959 P.2d 519, 521 (1998)

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(considering the policy involved, as well as a statute’s spirit and context, in
interpreting a statute to give force to its legislative intent).

The majority goes too far in concluding that setting aside the
judgment must eliminate this lien. The statute does not require that
outcome. Therefore, a victim’s entitlement to receive restitution is not
jeopardized by the benefit conferred to a defendant for completing a
specialty court program under NRS 176A.260.

Pursuant to NRS 176A.260(6)(a), Engle was entitled to
discharge and dismissal upon completing mental health court,
notwithstanding her inability to pay restitution. Accordingly, I would grant
the petition for a writ of mandamus and order that Engle be discharged
from probation and the judgment of conviction be set aside in accordance
with NRS 176A.260(6)(a). The district court would remain free to enter an
order directing payment of any unpaid restitution as a civil liability. I

therefore respectfully dissent.

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Stiglich
I concur:
Bell ‘~
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