        FILE
        IN CLERICS    OFFICI
 IUPREME COURT,   STA"'W,WI'M'I··---·
      DATE        MAR ~13 I
-;z?.r.,~·                         I




     IN THE SUPREME COURT OF THE STATE OF WASHINGTON




 STATE OF WASHINGTON,
                               Respondent,
              v.                                           NO. 8 7 7 51-3


 DANIEL ALLEN FLAHERTY,                                       ENBANC
                               Petitioner,


 HUGH ANDREW SHAWGO,
                               Defendant.                       MAR 14 2013
                                                     Filed: ----------------


                  PER CURIAM-Daniel Flaherty attempted to file a CrR 7.8 motion to
 vacate his 2005 conviction with the Spokane County Superior Court. The court
 refused to file the motion, deeming it untimely. Flaherty appealed, and the Court of
 Appeals dismissed the appeal by opinion, approving of the practice of refusing to file
 untimely CrR 7.8 motions. We reverse and remand with directions to file Flaherty's
 motion and process it in accordance with CrR 7.8(c)(2).
                  Flaherty pleaded guilty in 2005 to conspiracy to deliver a controlled
 substance. Following a 2009 federal conviction, the 2005 conviction was considered
 in finding that Flaherty was a "career offender" subject to an increased sentence. A
No. 87751-3                                                                        PAGE2



year later, in November 2010, Flaherty tried to file a CrR 7.8 motion in superior court
to vacate the 2005 conviction on the basis that his attorney had failed to advise him
that pleading guilty could contribute to a "career offender" determination. The
superior court returned the motion unfiled with a letter explaining that it was time
barred and thus the court would take no action on it. Flaherty tried to file the motion
again, arguing that it was timely under RCW 10. 73 .1 00( 6) on the basis of a significant
change in the law. The court also returned the second motion unfiled, explaining that
it was untimely.
           Flaherty filed a notice of appeal, arguing that the superior court erred in
failing to forward his motion to the Court of Appeals for treatment as a personal
restraint petition pursuant to CrR 7.8(c)(2). The State conceded that the superior court
should have followed that procedure, but it argued that Flaherty's motion was clearly
untimely, making any error harmless. But noting that the superior court did not deny
the motion to vacate but rather refused to file it, the Court of Appeals in an amended
opinion held that the superior court's rejection of the motion for filing was a
permissible way to handle untimely CrR 7.8 motions. The court further held that the
trial court's refusal to file the motion was not an appealable decision under RAP 2.2,
and it thus dismissed the appeal. The court added that a party may seek discretionary
review of a refusal to file under RAP 2.3(b ), but it determined that Flaherty
demonstrated no basis for discretionary review.
              We granted discretionary review of the Court of Appeals decision, and we
now reverse.
              A superior court clerk generally must file all papers delivered to the clerk
for that purpose in any proceeding or action "as directed by court rule or statute."
RCW 2.32.050(4). No petition or motion for collateral attack on a criminal judgment
and sentence "may be filed" more than one year after the judgment becomes final if
No. 87751-3                                                                       PAGE3



the judgment and sentence is valid on its face and was rendered by a court of
competent jurisdiction. RCW 10.73.090(1). If the superior court determines that a
motion for relief from a judgment and sentence under CrR 7.8 is time barred under
RCW 10.73.090, the court "shall" transfer the motion to the Court of Appeals for
consideration as a personal restraint petition. CrR 7 .8(c)(2).
           The Court of Appeals reasoned that since the superior court clerk is only
required to file papers "as directed by court rule or statute," RCW 2.32.050(4), and
since RCW 10.73.090(1) states that a collateral challenge "may not be filed" more
than one year after the finality of a judgment and sentence, the clerk may refuse to file
an untimely CrR 7.8 motion. But CrR 7.8(c)(2) expressly requires otherwise, stating
that the superior court "shall" transfer a motion for relief from judgment to the Court
of Appeals for consideration as a personal restraint petition if the court determines
that the motion is time barred under RCW 10.73.090. A more sensible reading of
RCW 10.73.090(1) is that it does not literally bar the filing of an untimely collateral
challenge, but that challenges filed beyond the time limit may not be considered on
the merits. There are several exemptions from the time limit, the application of which
is a question of law. RCW 10.73.100. It is the court's function, not the clerk's, to
decide whether a collateral challenge is timely. If the challenge is untimely, the court
shall transfer it to the Court of Appeals.
              Further, under CR 5(e), the filing of a motion presented in the proper form
is a nondiscretionary, ministerial task. Where a court rule and a statute appear to
conflict on a procedural matter related to court administration, the rule controls. See
RCW 2.04.200 (procedural laws become ineffective when in conflict with
subsequently promulgated court rules). It is plainly not part of the clerk's ministerial
function to determine whether a collateral challenge is timely.
No. 87751-3                                                                     PAGE4



             We therefore reverse the Court of Appeals and remand to the superior court

with directions to file Flaherty's CrR 7.8 motion and process it in accordance with CrR
7.8(c)(2).
