Rule 4 APPEAL AS OF RIGHT — WHEN TAKEN.

• Jurisdiction: Colorado

Rule 4. Appeal as of Right — When Taken.

(a) Appeals in Civil Cases (Other than Appeals or Appellate Review Within C.A.R. 3.1, 3.2, 3.3 and 3.4). Except as provided in Rule 4 (e), in a civil case in which an appeal is permitted by law as of right from a trial court to the appellate court, the notice of appeal required by C.A.R. 3 shall be filed with the appellate court with an advisory copy served on the clerk of the trial court within 49 days of the date of the entry of the judgment, decree, or order from which the party appeals. In appeals from district court review of agency actions, such notice of appeal shall be in addition to the statutory 45-day notice of intent to seek appellate review filed with the district court required by C.R.S. 24-4-106 (9). If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal is filed, or within the time otherwise prescribed by this section (a), whichever period last expires.

The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the Colorado Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this section (a) commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) Granting or denying a motion under C.R.C.P. 59 for judgment notwithstanding verdict; (2) granting or denying a motion under C.R.C.P. 59, to amend findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under C.R.C.P. 59, to alter or amend the judgment; (4) denying a motion for a new trial under C.R.C.P. 59; (5) expiration of a court granted extension of time to file motion(s) for post-trial relief under C.R.C.P. 59, where no motion is filed. The trial court shall continue to have jurisdiction to hear and decide a motion under C.R.C.P. 59 regardless of the filing of a notice of appeal, provided the C.R.C.P. 59 motion is timely filed under C.R.C.P. 59 (a) and determined within the time specified in C.R.C.P. 59 (j). During such time, all proceedings in the appellate court shall be stayed. A judgment or order is entered within the meaning of this section (a) when it is entered pursuant to C.R.C.P. 58. If notice of the entry of judgment, decree, or order is transmitted to the parties by mail or E-Service, the time for the filing of the notice of appeal shall commence from the date of the mailing or E-Service of the notice.

Upon a showing of excusable neglect, the appellate court may extend the time for filing the notice of appeal by a party for a period not to exceed 35 days from the expiration of the time otherwise prescribed by this section (a). Such an extension may be granted before or after the time otherwise prescribed by this section (a) has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.

Comment: C.A.R. 4(a) provides for the notice of appeal to be filed with the appellate court and a copy to be served upon the trial court. Time for filing the notice of appeal is increased to 49 days.

(b) Appeals in Criminal Cases.

(1) Except as provided in Rule 4 (e), in a criminal case the notice of appeal by a defendant shall be filed in the appellate court and an advisory copy served on the clerk of the trial court within 49 days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order shall be treated as filed on the date of such entry. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within 49 days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made within 14 days after entry of the judgment. A judgment or order is entered within the meaning of this section (b) when it is entered in the criminal docket. Upon a showing of excusable neglect the appellate court may, before or at any time after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed 35 days from the expiration of the time otherwise prescribed by this section (b).

Comment: C.A.R. 4(b) has been altered to make it conform more closely to C.A.R. 4(a).

(2) Unless otherwise provided by statute or Colorado appellate rule, when an appeal by the state or the people is authorized by statute, the notice of appeal shall be filed in the Court of Appeals within 49 days after the entry of judgment or order appealed from. The Court of Appeals, after consideration of said appeal, shall issue a written decision answering the issues in the case and shall not dismiss the appeal as without precedential value. The final decision of the Court of Appeals is subject to petition for certiorari to the Supreme Court.

(3) Prosecutorial Appeals in Criminal Cases. An appeal by the state or the people from an order dismissing one or more but less than all counts of a charging document prior to trial, including a finding of no probable cause at a preliminary hearing, shall be filed in the court of appeals unless the order is based on a determination that a statute, municipal charter provision, or ordinance is unconstitutional, in which case the appeal shall be filed in the supreme court. Appeals of orders dismissing one or more but less than all counts of a charging document shall otherwise be conducted pursuant to the procedures set forth in Rule 4.1, except petitions for rehearing and certiorari shall be permitted, and mandates shall issue, as provided by these rules.

(c) Appellate Review of Felony Sentences.

(1) Availability of Review. Except in those cases provided for in subsection (e) of this Rule, a person upon whom sentence is imposed for conviction of a felony shall have the right to one appellate review of the propriety of the sentence, having regard to the nature of the offense, the character of the offender, the public interest, and the sufficiency and accuracy of the information on which the sentence was based.

(I) If the appeal review of conviction is sought in a case where there has been a trial and conviction on the merits, appellate review of the propriety of the sentence will be a part of and be treated in the same manner as the review of the conviction.

(II) If the appeal is to review a sentence following a plea of guilty or nolo contendere, or resentencing, where the imposition of sentence was the only issue before the court, then the following abbreviated procedure for appellate review of sentences will be utilized:

(A) The notice of appeal must be filed within 49 days from the date of the imposition of sentence. The notice shall be filed with the appellate court with an advisory copy served on the clerk of the trial court which imposed the sentence. The time for filing the notice of appeal may be extended by the appellate court.

(B) Except as provided by this Rule, the Colorado Appellate Rules governing criminal appeals shall apply to appellate review of sentences.

Comment: The change in the title and deletion of subsection (d) of this rule became necessary because of repeal of C.R.S. 18-1-409(2.1) and (2.2) and repeal of C.R.S. 18-1-409.5 effective July 1, 1981. In 1984 this rule was changed to make it conform more closely to C.A.R. 4(a) and (b).

(d) Appeals of Cases in Which a Sentence of Death Has Been Imposed.

(1) Availability of Review. Whenever a sentence of death is imposed, the Supreme Court shall review the propriety of the sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information upon which it was based.

If the Supreme Court determines that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, or that, as a matter of law, the sentence is not supported by the evidence, a sentence of death shall not thereafter be imposed.

(2) Procedure. The procedure for pursuing appeals in cases in which a sentence of death has been imposed is as set forth in Rule 32.2 of the Colorado Rules of Criminal Procedure.

(3) Record on Appeal. In appeals under subsection (e) of this Rule, the following items shall be included in the record on appeal:

(I) The indictment or information upon which the sentence is based; a verbatim transcript of the entire sentencing proceeding; the instructions given by the trial court and tendered by the parties in the sentencing proceeding; all exhibits admitted or offered during the trial and at the sentencing proceeding; all verdict forms submitted to the jury; and the judgment, sentence, and mittimus.

(II) Such other portions of the record as may be designated under C.A.R. 10 (b) or as may be ordered by the Supreme Court.

(e) Appeal by an Inmate Confined in an Institution. If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.

Source: (a) amended August 23, 1984, effective January 1, 1985; (b)(2) amended July 7, 1988, effective August 1, 1988; (a) amended and effective June 18, 1992; (a) and (d) amended March 17, 1994, effective July 1...