Court Business

• Publication year: 2004
• Pages: 121
• Citation: Vol. 33 No. 4 Pg. 121

33 Colo.Law. 121 Colorado Lawyer 2004.

2004, April, Pg. 121. Court Business

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121

Vol. 33, No. 4, Pg. 121

The Colorado Lawyer
April 2004
Vol. 33, No. 4 [Page 121]

From the Courts
Court Business
Court Business

Colorado Supreme Court Rules Committee

Corrective Order to Rule Change 2003(19)
Colorado Rules of Civil Procedure
Chapter 2. Pleadings And Motions
Adopted

The Colorado Rules of Civil Procedure

Chapter 2

(a)-(iii) [No Change]

(C) Document Disclosure. Documents and other evidentiary materials disclosed pursuant to C.R.C.P. 26(a)(1) and 16.1(k)(1)(B) shall be made immediately available for inspection and copying to the extent not privileged or protected from disclosure

(2)-(9) [No Change]

(l)

No Other Changes

This Corrective Order is Adopted on January 6, 2004, nunc pro tunc November 6, 2003, effective July 1, 2004.

Justice Rice would not adopt the rule.

By the Court:

Mary J. Mullarkey
Chief Justice, Colorado Supreme Court

____________________

Rule Change 2003(23)
Colorado Appellate Rules
Chapter 32
Corrective Order Correcting Typographical Error
Adopted

Rule 39.5. (New) Attorney Fees on Appeal

If attorney fees are otherwise recoverable for the particular appeal, the party claiming attorney fees shall specifically request them, and state the legal basis therefor, in the party's principal brief in the appellate court. Any opposition to a request for attorney fees shall be set forth, as pertinent, in either the answer or reply brief. The appellate court may determine entitlement to and the amount of any attorney fees for the appeal. In its discretion, the appellate court may remand to the trial court or tribunal below the determination of entitlement to or the amount of any attorney fees.

Corrective order correcting typographical error is adopted February 2, 2004, nunc pro tunc December 4, 2003, effective January 1, 2004.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

____________________

Rule Change 2004(1)
Appendix A to Chapter 27
The Colorado Rules of Probate Procedure
Adopted

The following Probate Forms are amended and adopted as of January 22, 2004, nunc pro tunc January 4, 2004.

CPC Form 34-CP (new)
Consent of Parent
CPC Form 35
Order Appointing Guardian for Minor

Adopted by the Court, En Banc, January 22, 2004, effective nunc pro tunc January 4, 2004.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

____________________

Rule Change 2004(2)
Chapter 29. Colorado Rules of Criminal Procedure
For All Courts of Record in Colorado
Amended and Adopted

The following rule is amended as of July 1, 2004:

Rule 35. Postconviction Remedies.

Amended and Adopted by the Court, En Banc, January 29, 2004, effective July 1, 2004.

Justices Martinez and Bender would have included an exception for actual innocence in sections 35(a)(2) and 35(c)(3)(VII).

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court

__________

Rule 35. Postconviction Remedies

(a) Correction of Illegal Sentence. The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

(b) [No Change]

(c) Other Remedies.

(1) [No Change]

(2) [No Change]

(I) [No Change]

(II) [No Change]

(III) [No Change]

(IV) Repealed

(V) [No Change]

(VI) [No Change]

(VII) [No Change]

(3) One who is aggrieved and claiming either a right to be released or to have a judgment of conviction set aside on one or more of the grounds enumerated in section (c)(2) of this Rule may file a motion in the court which imposed the sentence to vacate, set aside, or correct the sentence, or to make such order as necessary to correct a violation of his constitutional rights. The following procedures shall apply to the filing and hearing of such motions:

(I) Any motion filed outside of the time limits set forth in § 16-5-402, 6 C.R.S., shall allege facts which, if true, would establish one of the exceptions listed in § 16-5-402(2), 6 C.R.S.

(II) Any motion filed also shall substantially comply with and contain the information detailed in Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c). See Appendix to Chapter 29.

(III) If a pro se motion substantially fails to comply with Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c), the court shall return to the defendant a copy of the document filed along with a blank copy of Form 4 and direct that a motion in substantial compliance with the form be filed within forty-five days.

(IV) The court shall promptly review all motions that substantially comply with Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c). In conducting this review, the court should consider, among other things, whether the motion is timely pursuant to § 16-5-402, whether it fails to state adequate factual or legal grounds for relief, whether it states legal grounds for relief that are not meritorious, whether it states factual grounds that, even if true, do not entitle the party to relief, and whether it states factual grounds that, if true, entitle the party to relief, but the files and records of the case show to the satisfaction of the court that the factual allegations are untrue. If the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall enter written findings of fact and conclusions of law in denying the motion. The court shall complete its review within sixty days of filing or provide the defendant a notice of reasons for delay.

(V) If the court does not deny the motion under (IV) above, the court shall cause a complete copy of said motion to be served on the prosecuting attorney if one has not yet been served by counsel for the defendant. If the defendant has requested counsel be appointed in the motion, the court shall cause a complete copy of said motion to be served on the Public Defender. Within forty-five days, the Public Defender shall respond as to whether the Public Defender's Office intends to enter on behalf of the defendant pursuant to § 21-1-104(1)(b), 6 C.R.S. In such response, the Public Defender shall identify whether any conflict exists, request any additional time needed to investigate, and add any claims the Public Defender finds to have arguable merit. Upon receipt of the response of the Public Defender, or immediately if no counsel was requested by the defendant or if the defendant already has counsel, the court shall direct the prosecution to respond to the defendant's claims or request additional time to respond within thirty days and the defendant to reply to the prosecution'­s response within twenty days. The prosecution has no duty to respond until so directed by the court. Thereafter, the court shall grant a prompt hearing on the motion unless, based on the pleadings, the court finds that it is appropriate to enter a ruling containing written findings of fact and conclusions of law. At the hearing, the court shall take whatever evidence is necessary for the disposition of the motion. The court shall enter written or oral findings either granting or denying relief within sixty days of the conclusion of the hearing or provide the parties a notice of the reason for delay and date by which the ruling will be issued.

If the court finds that defendant is entitled to postconviction relief, the court shall make such orders as may appear appropriate to restore a right which was violated, such as vacating and setting aside the judgment, imposing a new sentence, granting a new trial, or discharging the defendant. The court may stay its order for discharge of the defendant pending appellate court review of the order. If the court orders a new trial, and there are witnesses who have died or otherwise become unavailable, the transcript of testimony of such witnesses at the trial which resulted in the vacated sentence may be used at the new trial.

(VI) The court shall deny any claim that was raised and resolved in a prior appeal or postconviction proceeding on behalf of the same defendant, except the following:

(a) Any claim based on evidence that could not have been discovered previously through the exercise of due diligence;

(b) Any claim based on a new rule of constitutional law that was previously unavailable, if that rule has been applied retroactively by the United States Supreme Court or Colorado appellate courts.

(VII) The court shall deny any claim that could have been presented in an appeal previously brought or postconviction proceeding previously brought except the following:

(a) Any claim based on events that occurred after initiation of the defendant's prior appeal or postconviction proceeding;

(b) Any claim based on evidence that could not have been discovered previously through the exercise of due diligence;

(c) Any claim based on a new rule of constitutional law that was previously unavailable, if that rule should be applied retroactively to cases on collateral review;

(d) Any claim that the sentencing court lacked subject matter jurisdiction;

(e) Any claim where an objective factor, external to the defense and not attributable to the defendant, made raising the claim impracticable.

(VIII) Notwithstanding (VI)(b) above, the court shall not deny a postconviction claim of ineffective assistance of trial counsel on the ground that all or part of the claim could have been raised on direct appeal.

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