Criminal Appeals from County Court
| Jurisdiction | Colorado,United States |
| Citation | Vol. 41 No. 9 Pg. 43 |
| Pages | 43 |
| Publication year | 2012 |
2012, September, Pg. 43. Criminal Appeals From County Court
September 2012
Vol. 41, No. 9 [Page43]
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
Frank Lawson is a student at the University of Denver Sturm College of Law with an expected graduation date in spring 2013. He researched and wrote this article while working as an extern with the Office of the Alternate Defense Counsel (OADC), under the guidance of Jonathan Rosen, a contract attorney with the OADC practicing law in Colorado since 1993. The author thanks Rosen and the OADC for their support and help in preparing this article.
Appealing a criminal judgment from a county or municipal court involves nuances not directly outlined by the readily accessible Colorado Appellate Rules. This article provides guidance to help Colorado lawyers navigate the process.
Criminal defendants-and, to a lesser extent, the prosecution-may appeal county court criminal judgments to the district court. For criminal defendants, the right to appeal extends to any final judgment of conviction.(fn1) Prosecutorial appeals are limited to questions of law, and because principles of double jeopardy generally prevent an acquitted defendant from being retried, even those questions of law tend to be advisory.(fn2) This article provides defendants and prosecutors guidance for handling such appeals from county courts, as well as from any municipal court of record.(fn3)
Filing Notice and Docketing the Appeal
Pursuant to Crim.P. 37(a), an appellant has thirty-five days to appeal a judgment of the county court in a criminal action.(fn4) The thirty-five day appeal period begins on the date a final judgment is entered.(fn5) A criminal judgment is deemed final when the court has recited: (1) the plea; (2) the verdict or findings; (3) the sentence; (4) the amount of presentence confinement; and (5) the costs, if any are assessed against the defendant.(fn6) Because the recital of these "procedural steps" may not occur simultaneously,(fn7) the thirty-five day period for filing an appeal does not begin to run until the last step has been completed.(fn8)
To perfect the appeal within the thirty-five day filing period, the appellant must: (1) file a notice of appeal with the county court; (2) post advance costs for preparation of the record with the county court; (3) serve a copy of the notice of appeal on the appellee; (4) docket the appeal with the district court; and (5) pay the docket fee to the district court.(fn9) Of these requirements, only the timely docketing of the appeal with the district court has been deemed to be jurisdictional, meaning that a failure to timely file the Notice of Appeal and Designation of Record with the district court is almost always fatal to the appeal.(fn10) In rare and exceptional circumstances, the district court may accept a notice of appeal filed after the thirty-five day time requirement. CAR 26(b) (although not directly incorporated within Crim.P. 37) provides guidance on this issue. Under CAR 26(b), the appellate court may (1) permit an appeal to be filed after the initial time period, (2) approve a party's motion to enlarge the time prescribed by the rules, or (3) permit an act to be done after the expiration of the prescribed time.(fn11) These actions depend on a showing of good cause.(fn12) The determination of good cause depends on the particular facts of each case, and should be made after assessing the totality of the circumstances.(fn13)
If the appeal's late filing is found to be inexcusable, the court still may consider "whether other factors weigh heavily in favor of permitting the late filing."(fn14) Three such nonexclusive factors outlined by the Colorado Supreme Court include: (1) the potential prejudice the People may suffer from late filing; (2) the interests of judicial economy; and (3) the proprietyof requiring the defendant to pursue other remedies.(fn15)
All of these arguments are uphill battles, and a careful appellant can avoid them entirely by making sure the notice of appeal is timely filed in district court. The appellee's counsel, conversely, should vet every county court appeal for this timeliness requirement, and move to dismiss if the appeal is untimely.
The other steps outlined in Crim.P. 37(a) are considered procedural requirements.(fn16) Failure to comply with the procedural requirements for an appeal "may be grounds for dismissal if properly raised by the opposing party."(fn17) However, such failure does not mandate dismissal.(fn18) Rather, an appellant who fails to satisfy procedural requirements is "subject to such penalties as the district court may impose within its measured discretion."(fn19) In determining the appropriate penalty, the courts will take into consideration whether strict technical application of the time requirements would result in "arbitrary denial of substantial justice,"(fn20) or "whether good cause, excusable neglect, or some other factor excuses noncompliance."(fn21)
Thus, counsel for the appellee also should screen county court appeals for these so-called non-jurisdictional requirements, because an appellant's failure to meet them might be grounds for non-mandatory dismissal. Conversely, of course, the appellant can avoid risk of a non-mandatory dismissal simply by timely complying with these non-jurisdictional requirements.
The appeal of a county court criminal case in district court is a civil proceeding;(fn22) the appeal therefore will receive a "CV" case number in district court. Because they are deemed civil cases, county court criminal appeals are subject to the same electronic filing requirements as any other civil pleading. Thus, if the particular district so requires, all filings-other than pro se filings-must be electronic, through the LexisNexis® system.(fn23)
Their civil nature, and the fact that the appeals court to which these county court appeals are made is itself a trial court and not a full-time appellate court, can cause some confusion when describing the parties. Because the criminal defendant is bringing the appeal, he or she normally will be designated the "Plaintiff" and the State of Colorado the "Defendant." This may cause confusion, which some lawyers seek to remedy by calling the appealing defendant the "Appellant" and the state the "Appellee," as in designated appellate courts.(fn24) However, all the electronic filing machinery in trial courts is based on the idea that the person bringing a civil case is called the Plaintiff and the person against whom it is being brought is called the Defendant. In an informal survey, different Denver metro area district court clerks report different preferences.(fn25)
Costs and Fees
Pursuit of an appeal requires paying the costs and fees associated with docketing the appeal, preparing the record, and transcribing the designated proceedings. How these costs and fees are to be addressed depends on whether the party qualifies as an indigent appellant entitled to proceed in forma pauperis.
Indigent Appellants-Proceeding In Forma Pauperis
An indigent appellant unable to pay the fees and costs for appeal may proceed in forma pauperis.(fn26) In such cases, the fees and costs for appeal are borne by the state.(fn27) To proceed in forma pauperis, the party should file a motion and affidavit in the county court "showing an inability to pay fees and costs or to give security."(fn28)
The state will not bear the fees and costs of the appeal if the trial court certifies that the appeal is either not submitted in good faith or that the individual is not in fact entitled to proceed in forma pauperis.(fn29) However, if granted, the appellant may proceed in forma pauperis without further authorization from the district court.(fn30) The appellant should "attach a copy of the trial court's order granting . . . leave to proceed in forma pauperis in the trial court with the appendix to the notice of appeal."(fn31) Likewise, the order granting in forma pauperis status should be attached to the designation of record so the appeals clerk of the county court and any transcribers are aware the appellant is not required to bear the costs of preparing the record. Of course, indigent defendants also have a right to state-appointed counsel on appeal, if they were convicted of a crime that is punishable by any amount of incarceration.(fn32)
Non-Indigent Appellants
A non-indigent appellant must pay $70 to docket an appeal.(fn33) This fee is to be paid to the district court.(fn34) If the appellant is unable to pay this fee and did not file a motion to proceed in forma pauperis in the county court, a "Motion to File without Payment and Supporting Financial Affidavit" may be completed and submitted to the district court.(fn35) This form must be accompanied by a draft Order.(fn36) (Both forms are available on the Colorado State Judicial Branch website.(fn37)) On receipt...
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