Opinion
No. 71696
10-13-2017
TIMOTHY FISHER, Appellant, v. THE STATE OF NEVADA, Respondent.
ORDER OF REVERSAL AND REMAND
Timothy Fisher appeals from an order of the district court denying his October 18, 2016, postconviction petition for a writ of habeas corpus challenging the computation of time he has served. Eighth Judicial District Court, Clark County; Jennifer P. Togliatti, Judge.
This appeal has been submitted for decision without oral argument and we conclude the record is sufficient for our review and briefing is unwarranted. NRAP 34(f)(3), (g). --------
The district court denied Fisher's petition "pursuant to NRS 34.738" and directed him to refile the petition as a new civil action. The district court erred in relying on this ground to deny relief. NRS 34.738 imposes no such duty on petitioners.
While NRS 34.730(3) provides the petition should be filed as a separate action, it is the responsibility of the clerk of the district court to file the petition as a separate action. NRS 34.730(3) ("[T]he clerk of the district court shall file a petition as a new action separate and distinct from any original proceeding in which a conviction has been had."). Any defects in the filing of the petition were curable defects and did not necessitate the denial of the petition. See Miles v. State, 120 Nev. 383, 387, 91 P.3d 588, 590 (2004). Therefore, we reverse the order of the district court. We remand this matter and direct the district court clerk to refile the petition as a separate action. Accordingly, we
ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.
/s/_________, J.
Tao
/s/_________, J.
Gibbons SILVER, C.J., dissenting:
I dissent.
/s/_________, C.J.
Silver cc: Hon. Jennifer P. Togliatti, District Judge
Timothy Fisher
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk