In re Nguyen
This court dismissed Luong Nguyens appeal before receiving counsels request for and extension of time to file appellants opening brief. By the time counsel realized the court had not received his request to reinstate the appeal, the dismissal had become final. Nguyen is asking the court to recall the remittitur, set aside the dismissal and reinstate the appeal. The Attorney General does not oppose Nguyens application for relief. The petition is granted.
According to counsel, he was retained to represent Luong Nguyen on appeal, which included filing the notice of appeal and all necessary documents and briefs. According to counsels declaration, soon after receiving the record from the Public Defenders Office in October 2006, he also received a letter from the court advising him that pursuant to California Rules of Court, rule 17(a)(1), the opening brief was due November 30. Although counsel mailed a request on November 28, for an extension of time to file the opening brief, he was advised by the court clerk that the appeal had been dismissed on December 1 without having received and/or acted upon [the] request for an extension of time. Appellants opening brief shall be filed within 30 days from the date of this order. This opinion is final as to this court forthwith.
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