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TCL > December 1997 Issue > Court Business

December 1997       Vol. 26, No. 12       Page  79
From the Courts
Court Business

Court Business

Chapter 29. Colorado Rules of Criminal Procedure
VII. JUDGMENT
Rule 32.2. Death Penalty Post-Trial Procedures

(a) PURPOSE AND SCOPE. THE PURPOSE OF THIS RULE IS TO ESTABLISH A FAIR, JUST AND EXPEDITIOUS PROCEDURE FOR CONDUCTING TRIAL COURT REVIEW OF ANY POST-TRIAL MOTIONS AND OF ANY POST-CONVICTION MOTIONS, AND FOR CONDUCTING APPELLATE REVIEW OF DIRECT APPEAL AND POST-CONVICTION REVIEW APPEAL IN CLASS ONE FELONY CASES IN WHICH A SENTENCE OF DEATH IS IMPOSED, AS DIRECTED BY SECTION 16-12-201, 8A C.R.S. (1997), ET SEQ.

(b) TRIAL COURT PROCEDURE.

(1) STAY OF EXECUTION. THE THREE-JUDGE PANEL, UPON THE IMPOSITION OF A DEATH SENTENCE, SHALL SET THE TIME OF EXECUTION PURSUANT TO SECTION 16-11-403 AND ENTER AN ORDER STAYING EXECUTION OF THE JUDGMENT AND SENTENCE UNTIL RECEIPT OF AN ORDER FROM THE SUPREME COURT. THE TRIAL COURT SHALL IMMEDIATELY MAIL TO THE SUPREME COURT A COPY OF THE JUDGMENT, SENTENCE, AND MITTIMUS.

(2) POST-TRIAL MOTIONS. THE DEFENDANT MAY FILE ANY POST-TRIAL MOTIONS, PURSUANT TO CRIM. P. 33, WITHIN 15 DAYS AFTER THE VERDICT OR FINDING OF GUILT. HEARINGS ON POST-TRIALS MOTIONS, IF NECESSARY, SHALL BE HELD WITHIN 20 DAYS OF THE FILING OF THE MOTIONS, AND RULING BY THE TRIAL COURT ON SUCH MOTIONS SHALL BE COMPLETED BEFORE THE SENTENCING HEARING.

(3) ADVISEMENT AND ORDER. WITHIN 5 DAYS OF THE IMPOSITION OF THE SENTENCE OF DEATH, THE COURT SHALL HOLD A HEARING (ADVISEMENT DATE) AND SHALL ADVISE THE DEFENDANT PURSUANT TO SECTIONS 16-12-204 AND 205. ON THE ADVISEMENT DATE, THE COURT SHALL:

(I) APPOINT NEW COUNSEL TO REPRESENT THE DEFENDANT CONCERNING DIRECT APPEAL AND POST-CONVICTION REVIEW MATTERS ABSENT WAIVER BY THE DEFENDANT;

(II) MAKE SPECIFIC FINDINGS AS TO WHETHER ANY WAIVER BY THE DEFENDANT OF THE RIGHT TO POST-CONVICTION REVIEW, DIRECT APPEAL OR THE APPOINTMENT OF NEW COUNSEL IS MADE KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY;

(III) ORDER THE PROSECUTING ATTORNEY TO DELIVER TO COUNSEL FOR THE DEFENDANT WITHIN 5 DAYS OF THE ADVISEMENT DATE ONE COPY OF ALL MATERIAL AND INFORMATION IN THE PROSECUTING ATTORNEY'S POSSESSION OR CONTROL THAT IS DISCOVERABLE UNDER CRIM. P. 16 OR PERTAINS TO PUNISHMENT, UNLESS SUCH MATERIAL AND INFORMATION HAS BEEN PREVIOUSLY PROVIDED TO THAT COUNSEL. COSTS OF COPYING AND DELIVERY OF SUCH MATERIAL AND INFORMATION SHALL BE PAID BY THE PROSECUTING ATTORNEY;

(IV) IF NEW COUNSEL IS APPOINTED FOR THE DEFENDANT, ORDER DEFENDANT'S TRIAL COUNSEL, AT HIS OR HER COST, TO DELIVER A COMPLETE COPY OF TRIAL COUNSEL'S FILE TO NEW COUNSEL WITHIN 5 DAYS OF THE ADVISEMENT DATE;

(V) DIRECT THAT ANY POST-CONVICTION REVIEW MOTIONS BE FILED WITHIN 150 DAYS OF THE ADVISEMENT DATE; AND

(VI) ORDER THE PRODUCTION OF THREE COPIES OF A CERTIFIED TRANSCRIPT OF ALL PROCEEDINGS IN THE CASE: ONE FOR THE SUPREME COURT, ONE FOR THE PROSECUTION AND ONE FOR THE DEFENSE. TRANSCRIPTS THAT ARE COMPLETED BY THE ADVISEMENT DATE WILL BE IMMEDIATELY PROVIDED TO THE PROSECUTION AND TO DEFENSE COUNSEL TO THE EXTENT THAT COUNSEL DOES NOT ALREADY POSSESS THOSE TRANSCRIPTS. ALL OTHER TRANSCRIPTS SHALL BE COMPLETED AND DELIVERED WITHIN 21 DAYS OF THE ADVISEMENT DATE OR WITHIN 21 DAYS OF ANY SUBSEQUENT HEARING.

(4) RESOLUTION OF POST-CONVICTION MOTIONS. THE COURT, UPON RECEIPT OF ANY MOTION RAISING POST-CONVICTION REVIEW ISSUES, AS DESCRIBED IN SECTION 16-12-206, SHALL PROMPTLY DETERMINE WHETHER AN EVIDENTIARY HEARING IS NECESSARY, AND IF SO, SHALL SCHEDULE THE MATTER FOR HEARING WITHIN 60 DAYS OF THE FILING OF SUCH MOTIONS AND ENTER ITS ORDER ON ALL MOTIONS WITHIN 30 DAYS OF THE HEARING. IF NO EVIDENTIARY HEARING IS REQUIRED, THE TRIAL COURT SHALL RULE WITHIN 30 DAYS OF THE LAST DAY FOR FILING THE MOTIONS.

(5) RECORD ON APPEAL. IN AN APPEAL UNDER THIS RULE, THE TRIAL COURT SHALL DESIGNATE THE ENTIRE TRIAL COURT RECORD AS THE RECORD ON APPEAL. WITHIN 21 DAYS OF THE FILING OF THE UNITARY NOTICE OF APPEAL, THE TRIAL COURT SHALL DELIVER TO THE SUPREME COURT ANY PORTION OF THE RECORD NOT PREVIOUSLY DELIVERED UNDER SUBSECTION (B)(3)(VI) OF THIS RULE.

(6) EXTENSION OF TIME. UPON A SHOWING OF EXTRAORDINARY CIRCUMSTANCES THAT COULD NOT HAVE BEEN FORESEEN AND PREVENTED, THE COURT MAY GRANT AN EXTENSION OF TIME WITH REGARD TO THE TIME REQUIREMENTS OF SECTIONS (B)(2), (3), (4) AND (5) OF THIS RULE.

(c) APPELLATE PROCEDURE.

(1) UNITARY NOTICE OF APPEAL. THE NOTICE OF APPEAL FOR THE DIRECT APPEAL AND THE NOTICE OF APPEAL FOR ALL POST-CONVICTION REVIEW SHALL BE FILED BY UNITARY NOTICE IN THE SUPREME COURT NO LATER THAN 5 DAYS AFTER THE TRIAL COURT'S ORDER ON POST-CONVICTION REVIEW MOTIONS. THE UNITARY NOTICE OF APPEAL NEED CONFORM ONLY TO THE REQUIREMENTS OF SECTIONS (1),(2),(6) AND (8) OF C.A.R. 3(G).

(2) BRIEFS. COUNSEL FOR DEFENDANT SHALL FILE AN OPENING BRIEF NO LATER THAN 180 DAYS AFTER THE FILING OF THE NOTICE OF APPEAL. THE PROSECUTION SHALL FILE AN ANSWER BRIEF NO LATER THAN 120 DAYS AFTER FILING OF THE OPENING BRIEF. COUNSEL FOR DEFENDANT MAY FILE A REPLY BRIEF NO LATER THAN 60 DAYS AFTER FILING OF THE ANSWER BRIEF. EXTENSIONS OF TIME WILL NOT BE GRANTED EXCEPT ON A SHOWING OF EXTRAORDINARY CIRCUMSTANCES THAT COULD NOT HAVE BEEN FORESEEN AND PREVENTED. THE OPENING BRIEF MAY NOT EXCEED 250 PAGES; THE ANSWER BRIEF MAY NOT EXCEED 250 PAGES; AND THE REPLY BRIEF MAY NOT EXCEED 100 PAGES. EXTENSIONS NOT TO EXCEED 75 PAGES FOR THE OPENING AND ANSWER BRIEFS, AND 50 PAGES FOR THE REPLY BRIEF MAY BE ALLOWED UPON A SHOWING OF COMPELLING NEED.

(3) CONSOLIDATION. ANY DIRECT APPEAL, ANY APPEAL OF POST-CONVICTION REVIEW PROCEEDINGS, AND THE REVIEW REQUIRED BY SECTION 16-11-103(6)(A), SHALL BE CONSOLIDATED AND RESOLVED IN ONE PROCEEDING BEFORE THE SUPREME COURT.

(4) FURTHER PROCEEDINGS.

(I) AFTER THE SUPREME COURT RESOLVES THE APPEAL, INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL MAY ONLY BE RAISED BY A PETITION FOR REHEARING FILED IN THE SUPREME COURT, PURSUANT TO SECTION 16-12-204;

(II) ANY NOTICE OF APPEAL CONCERNING A TRIAL COURT DECISION ENTERED PURSUANT TO SECTION 16-12-209 OR CONCERNING ANY SECOND OR SUBSEQUENT REQUEST FOR RELIEF FILED BY THE DEFENDANT, SHALL BE FILED IN THE SUPREME COURT WITHIN 30 DAYS OF THE ENTRY OF THE TRIAL COURT'S ORDER. SUCH APPEAL SHALL BE GOVERNED BY THE COLORADO APPELLATE RULES AS MAY BE MODIFIED BY THE SUPREME COURT IN CASE-SPECIFIC ORDERS DESIGNED TO EXPEDITE THE PROCEEDINGS.

(d) SANCTIONS. THE TRIAL COURT AND THE SUPREME COURT MAY IMPOSE SANCTIONS ON COUNSEL FOR WILLFUL FAILURE TO COMPLY WITH THIS RULE, INCLUDING BUT NOT LIMITED TO CONTEMPT SANCTIONS, REMOVAL FROM REPRESENTATION ON THE CASE OR BEFORE THE COURT, AND REFERRAL FOR DISCIPLINARY ACTION.

THIS RULE SHALL APPLY TO CLASS ONE FELONY OFFENSES COMMITTED ON OR AFTER JANUARY 1, 1998 FOR WHICH A SENTENCE OF DEATH IS IMPOSED.

Approved and Adopted by the Court, En Banc, October 28, 1997, effective January 1, 1998.

BY THE COURT:

Gregory J. Hobbs, Jr.
Justice, Colorado Supreme Court

© 1997 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=1997.


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