Peck (Frank) v. State

• Court: Nevada Supreme Court
• Decided: November 13, 2014
• Docket: 65691
• Status: Unpublished

Opinion

person supplemental petition. The district court subsequently allowed

counsel to withdraw and appellant then filed seven more supplemental

petitions. After appellant filed his last supplemental petition on

December 5, 2013, the district court ordered the State to respond. The

State filed a motion to dismiss the petition and supplements on the

grounds that the petition was prematurely filed, the supplements were

untimely filed and were fugitive pleadings, and appellant's claims were

without merit or were procedurally barred. The district court granted the

State's motion and dismissed appellant's petition.

We conclude that the district court erred in dismissing

appellant's petition. The district court did not address any of the claims

raised in the June 18, 2009, petition. Rather, the district court appeared

to find that the petition was prematurely filed and that the supplemental

petition filed on October 9, 2012, was untimely because it was filed more

than one year after the issuance of remittitur on direct appeal. Although

the June 18, 2009, petition was filed before entry of the judgment of

conviction on July 10, 2009, we conclude that this was not a proper basis

for denying the petition almost five years later, especially when the

district court proceeded with the petition following entry of the judgment

by appointing counsel and characterizing the proceedings as "post-

conviction." Therefore, we reverse with instructions for the district court

to consider the June 18, 2009, petition. At that time, the district court

SUPREME COURT OF NEVADA 2 (0) 1947A se may also consider whether the supplemental petitions may be filed

pursuant to NRS 34.750(5). Accordingly, we

ORDER the judgment of the district court REVERSED AND

REMAND this matter to the district court for proceedings consistent with

this order.

, J. Hardesty

et ir7/‘ J. Douglas

J.

cc: Hon. Brent T. Adams, District Judge Frank Milford Peck Attorney General/Carson City Washoe County District Attorney Washoe District Court Clerk

SUPREME COURT OF NEVADA 3 (0) 1947A' e