State v. Santiago B. Rios, 2020AP2132-CR, was slated to be decided today, but it wasn’t. Instead, the court of appeals issued an order directing the state (represented here by the district attorney’s office) to file a respondent’s brief.
The state missed its first briefing deadline. It then ignored a delinquency notice ordering the state to file its brief or seek an extension within five days. Next, it ignored a second order to file a brief, which order also warned that failure to respond might result in the court: i) assuming the state was conceding error; and ii) ordering summary reversal, if the court determined the state “has abandoned the appeal, acted egregiously[,] or acted in bad faith.”
Having received no response at all from the state, today the court issues a third order to file a respondent’s brief (which the court deems necessary to decide the case). The court again warns that failure to do so “will be taken as an egregious act amounting to its abandonment of its right to contest Rios’[s] appeal” and will lead to summary reversal and remand for resentencing.
Good thing the state isn’t a parent in a TPR case, for whom missing just one court-ordered action is usually egregious enough to justify a default judgment.
Maybe take a look at Niz-Chavez v. Garland (USSC case) decided in April of this year to see if any of that language can be used by the defense.
Would anyone but the government get three notices to file a brief? I can see one. Two is too many and three strikes should be out.