Rule 35 DETERMINATION OF APPEAL.

• Jurisdiction: Colorado

Rule 35. Determination of Appeal.

(a) Disposition of Appeal. The appellate court may, in whole or in part, dismiss an appeal; affirm, vacate, modify, reverse, or set aside a lower court judgment; and remand any portion of the case to the lower court for further proceedings. When reviewing a ruling or judgment dismissing criminal charges, the appellate court may approve or disapprove of the judgment if retrial of the defendant is prohibited. The appellate court may dismiss an appeal or affirm a lower court judgment without opinion, but it must issue a written opinion when vacating, modifying, reversing, setting aside, or remanding any portion of the lower court judgment.

(b) Equally Divided Supreme Court. When the supreme court acting en banc is equally divided in an opinion, the judgment being appealed will stand affirmed.

(c) Harmless Error. The appellate court may disregard any error or defect not affecting the substantial rights of the parties.

(d) Advancement on Docket. Any pending action may be advanced on the docket and may be disposed of in such order as the court deems appropriate. The court may make such orders relating to the time and necessity for the filing of briefs and for oral argument as it deems the circumstances demand.

(e) Published Opinions of Court of Appeals. A majority of all of the judges of the court of appeals shall determine which opinions of that court will be designated for official publication. The opinions shall be published in the official publication designated by the supreme court. Opinions designated for official publication must be followed as precedent by all lower court judges in the state of Colorado. No court of appeals opinion shall be designated for official publication unless it satisfies one or more of the following standards:

(1) the opinion establishes a new rule of law, or alters or modifies an existing rule, or applies an established rule to a novel fact situation;

(2) the opinion involves a legal issue of continuing public interest;

(3) the majority opinion, dissent, or special concurrence directs attention to the shortcomings of existing common law or inadequacies in statutes; or

(4) the opinion resolves an apparent conflict of authority.

(f) Unpublished Opinions of Court of Appeals. A court of appeals opinion not designated for official publication must contain the following notation on the title page: "NOT PUBLISHED PURSUANT TO C.A.R. 35 (e)." If the supreme court grants certiorari to a court of appeals opinion not designated for official publication, and if the supreme court announces an opinion in the case, the court of appeals' opinion will not be published unless otherwise ordered by the supreme court.

(g) Effect of Denial of Writ of Certiorari. The supreme court's denial of a writ of certiorari does not constitute approval of the lower court judgment.

(h) References to Minors and Sexual Assault Victims. Opinions and orders issued by the appellate courts will refer to sexual assault victims and minors in a manner consistent with C.A.R. 32 (f).

Source: (f) amended and adopted June 27, 2002, effective July 1, 2002; (f) amended and effective February 7, 2008; (e) amended and effective April 5, 2010; entire rule amended and comment added, effective April 7, 2016.

Cross references: For provision on harmless error in proceedings before the trial court, see C.R.C.P. 61.

COMMENTS

2016

[1] Prior subsections (c), entitled, "Affirmation;" (d), entitled, "Reversal;" and (e), entitled, "Disposition of Cause;" were deleted to reflect current appellate practice, for readability, and because portions of these prior subsections addressed functions of the trial court rather than functions of an appellate court. The relevant substance of those prior subsections, however, has been relocated to new subsections (a), entitled "Disposition of Appeal;" (b) entitled "Equally Divided Supreme Court;" and (c), entitled "Harmless Error."

[2] Because prior subsections (c), (d), and (e) were deleted, prior subsection (f), entitled, "Published Opinions of the Court of Appeals," has been re-lettered to subsection (e). For readability and organization, the contents of prior subsection (f) have been divided into new subsections (e); (f), entitled, "Unpublished Opinions of the Court of Appeals;" and (g) entitled, "Effect of Denial of Writ of Certiorari."

[3] New subsection (h) is consistent with C.A.R. 32(f) and 34, and is based on the legislative requirements set forth in Colo. Rev. Stat. §§19-1-102(1.7), 19-1-109(1), and 24-72-304(4)(a), and is consistent with longstanding court practice.

ANNOTATION

I. General Consideration.

II. Affirmation.

III. Reversal.

IV. Disposition of Cause.

A. In General.
B. Equally Divided Court.
C. Error Not Affecting Substantial Rights of the Parties.

V. Published Opinions of Court of Appeals.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Supreme Court Proceedings: Rules 111-119", see 23 Rocky Mt. L. Rev. 618 (1951). For article, "Appellate Procedure and the New Supreme Court Rules", see 30 Dicta 1 (1953). For article, "A Summary of Colorado Supreme Court Internal Operating Procedures", see 11 Colo. Law. 356 (1982). For article, "Collecting Pre- and Post-Judgment Interest in Colorado: A Primer", see 15 Colo. Law. 753 (1986).

Annotator's note. The following annotations include cases decided under prior versions of this rule.

Where question presented on appeal is moot, dismissal of the appeal is in order. People in Interest of P.L.V., 176 Colo. 342, 490 P.2d 685 (1971).

An appeal from order of foreclosure on real property was mooted where record reveals a conscious and voluntary choice by the defendants to allow the property to be sold to satisfy the judgment. Stenback v. Front Range Financial Corp., 764 P.2d 380 (Colo. App. 1988).

Appeal becomes moot if events subsequent to the filing of the appeal render...