STATE OF IDAHO v. GREGORY WAYNE POWELL (2017)

MOTION TO WITHDRAW REMITTITUR AND ACCEPT UNTIMELY PETITION FOR REVIEW

COMES NOW the Respondent, State of Idaho, by and through undersigned counsel and moves the Court pursuant to Idaho Appellate Rules 44 and 46 for an order withdrawing the Remittur entered in this case on March 8, 2017, and extending the time for the state to file a Petition for Review until March 10, 2017, and accepting the Petition for Review filed contemporaneously herewith as timely under Idaho Appellate Rule 118.

On February 14, 2017, the Idaho Court of Appeals issued its decision in the above-captioned case. Pursuant to Idaho Appellate Rule 118, the Petition for Review was due March 7, 2017. Undersigned counsel made a note of the due date for the petition on her copy of the opinion, but inadvertently failed to calendar the due date for filing. This error was discovered after business hours on March 9, 2017, when undersigned counsel saw the email notification of the Remittitur.

Idaho Appellate Rule 46 allows this Court to enlarge the time for filing a Petition for Review “for good cause shown upon the motion of a party.” l.A.R. 46. Good cause exists because the calendering error was inadvertanent and was immediately reticitifed when it was discovered. The state requests that this Court find good cause and extend the time for filing a Petition for Review and accept the Petition for Review filed March 10, 2017, as timely.

JESSICA M. LORELLO Deputy Attorney General

AFFIDAVIT

STATE OF IDAHO

ss

COUNTY OF ADA

JESSICA M. LORELLO, being first duly sworn on oath, deposes and says:

(1) The Idaho Court of Appeals issued its decision in State v. Powell, Docket No. 43107, 2017 Opinion No. 14 on February 14, 2017.

(2) After research and discussion with members of the office the undersigned counsel determined that a Petition for Review was necessary.

(3) Under Idaho Appellate Rule 118, the Petition for Review was due March 7, 2017. The undersigned counsel made a note of the due date on her copy of the opinion, but inadvertently failed to calendar the due date on her schedule.

(4) The Remittitur issued on on March 8, 2017, and undersigned counsel received email notification of the Remittitur the following day - March 9, 2017.

(5) Undersigned counsel has immediately filed the Petition for Review and this motion.

(6) Opposing counsel has not been contacted regarding this request.

JESSICA M. LORELLO Deputy Attorney General

SUBSCRIBED AND SWORN TO before me this 10th day of March, 2017.

Notary Public for Idaho

Residing at: Ada County, Idaho

My Commission Expires: 8/28/2020

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this 10th day of March, 2017, served a true and correct copy of the attached MOTON TO WITHDRAW REMITTITUR AND ACCEPT UNTIMELY PETITION FOR REVIEW by causing a copy addressed to:

MAYA P. WALDRON DEPUTY STATE APPELLATE PUBLIC DEFENDER

to be placed in the State Appellate Public Defender's basket located in the Idaho Supreme Court Clerk's office

JESSICA M. LORELLO Deputy Attorney General