1973, May, Pg. 11. Colorado Appellate Procedure: Part I.

• Author: by Jerry Raisch

2 Colo.Law. 11

The Colorado Lawyer

1973.

1973, May, Pg. 11.

Colorado Appellate Procedure: Part I

11Vol. 2, No. 7, Pg. 11Colorado Appellate Procedure: Part Iby Jerry RaischAppellate procedure in Colorado is controlled by both Colorado statutes and Colorado court rules. The practitioner who is unfamiliar with appellate procedure can lose much valuable time locating the proper statutes or rules, and thereafter extracting the salient provisions in order to proceed with an appeal. This article assimilates the statutes and court rules dealing with Colorado appellate procedure and discusses them with the hope of making them more understandable. Reference is made to significant cases construing such statutes and rules. The article will appear in two parts. Part I addresses appeals from municipal and county courts; part II will deal with appeals from the district court and the Court of Appeals.

APPEALS FROM MUNICIPAL COURTS

Prior to 1970, the procedure in cases appealed from municipal courts was governed by the provisions of Colorado Revised Statutes Annotated § 139-36-1 et seq. However, the 1969 General Assembly repealed Article 36 of Chapter 139 and amended Chapter 37 by adding Article 22 dealing with municipal courts. The most significant change concerning appeals was that the new statute distinguished between qualified municipal courts of record and nonqualified municipal courts and eliminated the right to a trial de novo when appealing the judgment of a qualified municipal court.(fn1) A qualified municipal court is defined as "a municipal court which has been established by, and operating in conformity with, either local charter or ordinances containing provisions requiring the keeping of a verbatim record of the proceedings and evidence at trials by either electric devices or stenographic means, and requiring as a qualification for the office of judge of such court that he shall have been admitted to, and is currently licensed in, the practice of law in Colorado."(fn2) Municipalities may not appeal from municipal court judgments concerning a violation of any charter provision or ordinance.(fn3) Thus, if the defendant does not appeal, judgment on the merits is conclusive.

Appeals from Nonqualified Municipal Courts

Appeals may be taken by any defendant from any judgment of a municipal court which is not a qualified municipal court of record to the county court of the county

12in which such municipal court is located,(fn4) and the cause must then be tried de novo.(fn5) Since the statute provides that "any defendant" may appeal any judgment, a defendant who has pleaded guilty in a nonqualified municipal court may appeal its judgment to the county court. The Colorado Supreme Court has ruled that a judgment of guilty entered on a plea of guilty is to be treated as "any judgment" within the meaning of the statute,(fn6) thereby entitling "any defendant" who entered the guilty plea to a trial de novo in the county court. Payment of the fine or service of the sentence imposed upon the defendant does not waive the right of appeal nor does it constitute a reason for denying the appeal.(fn7) While no cases exist on the specific point, it could be concluded that a defendant who pleaded guilty in a nonqualified municipal court and paid his fine may nevertheless appeal the judgment.

An appeal may be taken from a nonqualified municipal court within 10 days after entry of any judgment.(fn8) An appeal is initiated by paying a fee of $1.50 to the clerk of the municipal court for preparation of the record on appeal(fn9) and by filing a notice of appeal, in duplicate, with the clerk.(fn10) The notice of appeal must set forth the title of the case, the name and address of the appellant and his attorney, if any, identification of the offense or violation of which the appellant was convicted, a statement of the judgment, including its date and any fines or sentences imposed, a statement that the appellant appeals from the judgment, and the signature of either the appellant or his attorney.(fn11) Thereafter, the municipal court must certify to the county court the original papers in the municipal court file, together with a transcript of the record and a duplicate notice of appeal.(fn12) Within 10 days of ordering the transcript of record, the appellant must pay a docket fee of $10 to the clerk of the county court or his appeal may be dismissed on motion of the municipality.(fn13)

Trial de novo of the case on appeal to the county court may not include retrial of any matter of which the applicant was acquitted, or any conjoined charge from the conviction which he did not seek to appeal.(fn14) If a jury is demanded on appeal, the duties of the jurors are to determine only whether the appellant has violated the ordinance charged. Upon a verdict of guilty, the judge must then hear and consider any material facts in mitigation or aggravation of the offense and must impose a penalty as provided by ordinance.(fn15) There is no provision in the statutes concerning the penalty which may be imposed by the appellate county court on trial de novo. However, the Supreme Court of the United States has recently held that imposition of a more severe penalty does not violate a defendant's constitutional rights.(fn16)

If a stay of execution of the judgment of the municipal court is desired, a bond must be executed to the municipality in which the court is located,(fn17) in such penal sum as may be fixed by the municipal court.(fn18) Sureties must...