STATE OF IDAHO v. TAYLOR JAMES FAIRCHILD (2018)

MOTION TO ACCEPT UNTIMELY PETITION FOR REVIEW AND WITHDRAW REMITTITUR

Taylor James Fairchild moves the Court pursuant to Idaho Appellate Rules 44 and 46 for an order withdrawing the remittitur, extending the time for Mr. Fairchild to file a Petition for Review until May 21, 2018, and accepting as filed the Petition for Review submitted simultaneously with this motion. This motion for an extension is based upon the following statement and the affidavit of counsel submitted contemporaneously herewith.

On March 7, 2018, the Idaho Court of Appeals issued its decision in the instant case. Thereafter, the State filed a Petition for Rehearing on March 27, 2018, and Mr. Fairchild filed a Petition for Rehearing on March 28, 2018. Briefs in support of the respective petitions were filed on April 5, 2018 and April 11, 2018. The Idaho Court of Appeals denied both of the petitions on April 24, 2018. However, undersigned counsel was not notified that the petitions for rehearing had been denied. It appears the email with the Court of Appeals' Order Denying Appellant's and Respondent's Petitions for Rehearing was sent to the S.A.P.D.'s “Documents” email address but not to undersigned counsel's email address, and undersigned counsel was not notified by S.A.P.D. support staff that the order was received. Therefore, undersigned counsel was not aware a Petition for Review was due.

To be timely under I.A.R. 118, a Petition for Review on behalf of Mr. Fairchild had to be filed on or before May 15, 2018. While an email indicating the Remittitur had issued was sent to undersigned counsel on May 16, 2018, counsel was out of the office from May 14, 2018 to May 18, 2018 and thus was not able to act on this issue until today.

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.” Mr. Fairchild asserts that he has shown good cause as the failure to file the petition was due to no fault of his own. In addition, this was an appeal as of right and, should this Court not enlarge the time to file a Petition for Review, Mr. Fairchild will be denied his right to a step in the Idaho Appellate process.

Accordingly, Mr. Fairchild requests that this Court grant him that which only this Court has the power to do, an enlargement of the time to file a petition for review.

DATED this 21st day of May, 2018.

AFFIDAVIT

STATE OF IDAHO

COUNTY OF ADA

REED P. ANDERSON, being first duly sworn on oath, deposes and says:

(1) The Idaho Court of Appeals issued its decision in Supreme Court docket number 44617, State v. Fairchild, on March 7, 2018;

(2) On March 27, 2018, the State filed a Petition for Rehearing, and on March 28, 2018, I filed a Petition for Rehearing on behalf of Mr. Fairchild;

(3) On April 5, 2018, the State filed a brief in support of its petition, and on April 11, 2018, I filed a brief in support of Mr. Fairchild's petition;

(4) On April 24, 2018, the Idaho Court of Appeals issued an Order Denying Appellant's and Respondent's Petitions for Rehearing, and on April 26, 2018, an email with that order was sent to the S.A.P.D.'s “Documents” address, but I did not receive the email;

(5) I was out of the office from May 14, 2018 to May 18, 2018, and, upon seeing that the Remittitur had issued, I immediately prepared this motion for an enlargement of time to file the Petition for Review;

(6) Opposing counsel has not been contacted regarding this request for extension of time; and

(7) The affiant assures the court that, should the Petition for Review be accepted, every effort will be made to file the brief in support within 14 days of the order accepting the Petition.

REED P. ANDERSON

Deputy State Appellate Public Defender

SUBSCRIBED AND SWORN TO before me this 21st day of May, 2018.

Notary Public for Idaho

Residing at: Boise, Idaho

My Commission Expires: 2/12/2022

CERTIFICATE OF MAILING

I HEREBY CERTIFY that on this 21st day of May, 2018, I caused a true and correct copy of the foregoing MOTION TO ACCEPT UNTIMELY PETITION FOR REVIEW and AFFIDAVIT to be hand delivered to the Attorney General's mailbox at Supreme Court for:

KENNETH K. JORGENSEN

DEPUTY ATTORNEY GENERAL

P.O. BOX 83720

BOISE, ID 83720-0010

EVAN A. SMITH

Administrative Assistant

REED P. ANDERSON Deputy State Appellate Public Defender