Opinion
No. 7333
June 4, 1973
Appeal from an order denying a pre-trial writ of habeas corpus, Seventh Judicial District Court, White Pine County; Roscoe H. Wilkes, Judge.
Gary A. Sheerin, State Public Defender, Carson City, for Appellant.
Robert List, Attorney General, Carson City; Merlyn H. Hoyt, District Attorney, and Rupert C. Schneider, Deputy District Attorney, White Pine County, for Respondent.
OPINION
Appellant, after being tried and convicted of first degree murder, was afforded a new trial pursuant to the confession of error noted in Apgar v. State, 89 Nev. 20, 504 P.2d 1076 (1973). Thereafter, he petitioned the district court for habeas relief and now appeals from the order denying habeas.
At the habeas proceeding and on this appeal appellant's sole contention is that the testimony adduced at his preliminary examination did not establish probable cause to hold him for trial on the charged offense.
While habeas is the proper procedure for challenging probable cause, the petition "must be filed and finally determined prior to trial and conviction." Wehrheim v. State, 84 Nev. 477, 479, 443 P.2d 607, 608 (1968). Since appellant failed to timely challenge the magistrate's findings the district court order denying habeas is affirmed.