Opinion
No. 69108
06-13-2016
CHARLES MATTHEW WIRTH, Petitioner, v. THE FIFTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF NYE, Respondent, and STATE OF NEVADA, Real Party in Interest.
ORDER GRANTING PETITION
This is a pro se petition for a writ of mandamus. Petitioner Charles Wirth alleges that he has not been allowed to file a pro se motion to correct an illegal sentence in the district court because he is represented by counsel in habeas proceedings pending in the district court.
We have consistently held that the district court clerk has a ministerial duty to accept and file documents presented for filing if those documents are in proper form. See, e.g., Sullivan v. Eighth Judicial Dist. Court, 111 Nev. 1367, 1372, 904 P.2d 1039, 1042 (1995) (holding that the district court clerk had a duty to file an application to proceed in forma pauperis and "receive" a civil complaint); Bowman v. Eighth Judicial Dist. Court, 102 Nev. 474, 478, 728 P.2d 433, 435 (1986) (holding that the clerk has a ministerial duty to accept and file documents unless given specific directions from the district court to the contrary). This court has further recognized that the clerk of the district court has a duty to maintain accurate files. See Whitman v. Whitman, 108 Nev. 949, 951, 840 P.2d 1232, 1233 (1992) (holding that clerk has no authority to return documents submitted for filing and must maintain such documents in the record of the case); Donoho v. Eighth Judicial Dist. Court, 108 Nev. 1027, 1029-30, 842 P.2d 731, 733 (1992) (holding that the clerk of the district court has a duty to file documents and to keep an accurate record of the proceedings before the court).
Because a motion to correct an illegal sentence is a separate action from a postconviction petition for a writ of habeas corpus, see Edwards v. State, 112 Nev. 704, 709, 918 P.2d 321, 325 (1996) (recognizing that a motion to correct an illegal sentence is a separate proceeding that is not governed by NRS chapter 34), it appeared from this court's review that Wirth had set forth an issue of arguable merit and had no adequate remedy at law. See NRS 34.160; NRS 34.170. Thus, this court directed the State to file an answer. The State does not dispute that Wirth should be granted relief in relation to the filing of the motion to correct an illegal sentence. Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district court to FILE THE MOTION TO CORRECT AN ILLEGAL SENTENCE.
A copy of the motion to correct an illegal sentence is attached to this order. We previously determined that petitioner was not entitled to any relief on his claim relating to the points and authorities as he is represented by counsel in the postconviction proceedings. See Wirth v. Fifth Judicial Dist. Court, Docket No. 69108 (Order Directing Answer, March 17, 2016). However, we caution the district court against returning legal mail unopened as there does not appear to be any practical means of determining from unopened correspondence whether the documents should be filed or received and maintained in the court's records. We deny as moot the request to clarify our prior decision directing an answer. --------
/s/_________, J.
Hardesty /s/_________, J.
Saitta /s/_________, J.
Pickering cc: Hon. Kimberly Wanker, District Judge
Charles Matthew Wirth
Attorney General/Carson City
Nye County District Attorney
Nye County Clerk
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