The Colorado Lawyer
Vol. 26, No. 8 [Page 115]
© 1997 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.
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From the Courts
Notice of Hearing on Proposed C.R.Crim.P. Rule 32.2, Death Penalty
Colorado Rules of Criminal Procedure
Hearing--Monday, September 29, 1997, 2:30 p.m.
The Colorado Supreme Court will conduct a hearing on proposed amendments to the Colorado Rules of Criminal Procedure regarding Death Penalty Post-Conviction Review--Appellate Procedure, on Monday, September 29, 1997, at 2:30 p.m., in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado. An original and eight copies of the written comments to the court concerning the proposals should be submitted to Mac V. Danford, Clerk of the Supreme Court, no later than Monday, September 8, 1997, at 5:00 p.m. Persons wishing to participate in the hearing should so notify Mr. Danford no later than September 8, 1997.
Crim. P. 32.2. Death Penalty
Post-Conviction Review--Appellate Procedure
(A) Purpose and Scope. The purpose of this Rule is to establish a uniform, expeditious procedure for conducting trial court review of any post-trial motions and of any post-conviction review motions, and for conducting appellate review of direct appeals and post-conviction review appeals in any class 1 felony case in which a sentence of death has been imposed, as directed by section 16-12-201, 8A C.R.S. (1997 supp.), et seq.
(B) Trial Court Procedure.
(1) Stay of Execution. The three-judge panel or the trial court, whichever is applicable 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 Colorado Supreme Court. The trial court shall direct the clerk of the trial court to mail to the Colorado Supreme Court, within seven days after the date upon which the sentence of death is imposed, a copy of the judgment, sentence, and mittimus.
(2) Post-Trial Motions. The defendant may file any post-trial motions, consistent with Crim. P. 33, within 15 days of the imposition of the sentence of death.
(3) Advisement and Order--Post-Conviction Review and Appeals. The court shall advise the defendant, within 15 days of the imposition of the sentence of death, consistent with section 16-12-204. Within 5 days after advisement, the court shall enter an order which:
(I) appoints post-conviction review counsel consistent with section 16-12-205;
(II) appoints direct appeal counsel, if necessary;
(III) directs that any post-conviction review motions shall be filed within 90 days of the advisement date;
(IV) orders the production of a certified transcript of all proceedings required for post-conviction review or on appeal, by a date certain;
(V) directs the prompt exchange of discovery between the state and the defendant for post-conviction review matters;
(VI) directs access for new post-conviction counsel, if any, to trial counsel's files and materials.
The order shall include written findings concerning a defendant's waiver of rights to post-conviction review, to post-conviction review appeal, and to direct appeal of the conviction, if waived.
(4) Resolution of Post-Trial Motions and Post-Conviction Review Motions. The court, upon receipt of any motion raising post-trial issues or post-conviction review issues 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 and enter its order on all motions within 15 days of hearing.
The trial court shall rule on all motions if no evidentiary hearing is required within 15 days of the last day for filing motions.
(5) Extension of Time. The court, upon receipt of a motion and a showing of extraordinary circumstances, may grant an extension of time not to exceed an additional 15 days with regard to any of the time requirements of sections (B)(2), (3), and (4) of this Rule.
(C) Appellate Procedure.
(1) Notice of Appeal. Notice of appeal for all direct and post-conviction review appellate issues shall be filed in the Supreme Court, no later than 45 days after the trial court's order on post-trial and post-conviction motions. The notices shall conform to the requirements of C.A.R. 3(g).
(2) Briefs. After notices of appeal have been filed in the Supreme Court, direct appeal counsel and post-conviction review counsel shall, no later than 180 days thereafter, file an opening brief. The prosecution may file answer briefs no later than 120 days after filing of the opening briefs. Counsel for defendant may file response briefs no later than 60 days after filing of the answer briefs. Extensions of time will not be granted except on a showing of extraordinary circumstances which could not have been foreseen to prevent the delay. The opening briefs may be no longer than 250 pages, the answer briefs no longer than 250 pages, the reply briefs no longer than 100 pages. Extensions not to exceed 75 pages for opening and answer briefs, and 50 pages for reply briefs, may be allowed upon a showing of compelling need.
(3) Consolidation. Any direct appeal, any appeal of post-conviction review, and the review required by section 16-11-103(6) (A), shall be consolidated and resolved in one proceeding.
(4) Record on Appeal. In appeals under 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; 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.
(III) The record, as described in C.A.R. 10, shall be prepared in the same form as any other record to be presented to the Supreme Court and shall be transmitted by the clerk of the trial court within forty days of imposition of sentence, or such additional time as may be allowed by the trial court, but no later than 365 days after imposition of the sentence of death.
(5) 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 C.A.R. 40;
(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 45 days of the entry of the trial court's order. Such appeal shall be governed by Colorado Appellate Rules.
(6) Stay of Execution. The stay of execution described above shall continue in effect until 45 days after the mandate of the Supreme Court issues, or until 45 days after the defendant waives all further appellate review rights, whichever occurs first. The trial court shall then set a date for execution.
(D) Waiver. The defendant may waive the right to post-conviction review, and to appeal of the conviction. If waived before the trial court, the trial court shall enter an order setting the date for execution. If waived while pending appeal before the Supreme Court, the Supreme Court will enter an order dismissing the appeal and remanding the case to the trial court to set a date for execution.
(E) Sanctions. The trial court and the Supreme Court will impose sanctions 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.
Proposed for Comment and Public Hearing, En Banc, June 19, 1997.
Colorado Rules of Civil Procedure
Chapter 20. Rules of Procedure Regarding
Lawyer Discipline and Disability Proceedings
And Mandatory Continuing Legal Education
And Judicial Education
Amended and Adopted
C.R.C.P. 241.25. General Provisions, is amended as follows:
All requests for investigation submitted TESTIMONY GIVEN IN DISCIPLINARY PROCEEDINGS OR COMMUNICATIONS RELATING TO LAWYER MISCONDUCT, LACK OF PROFESSIONALISM OR DISABILITY MADE to the Supreme Court, the Committee, the Committee Counsel, the Disciplinary Counsel, MEDIATORS ACTING PURSUANT TO C.R.C.P. 241.4(c)(11), OR MONITORS ENLISTED TO ASSIST WITH DEFERRAL AS AUTHORIZED BY C.R.C.P. 241.11.5 and all complaints filed with the Committee, shall be absolutely privileged and no lawsuit shall be predicated thereon.
Persons performing official duties under the provisions of this Chapter, including but not limited to members of the Committee and its staff; the Committee Counsel and
his staff; the Disciplinary Counsel and his staff; MEDIATORS APPOINTED BY THE COURT PURSUANT TO C.R.C.P. 241.4(c)(11); MONITORS ENLISTED TO ASSIST WITH DEFERRAL AS AUTHORIZED BY C.R.C.P. 241.11.5; and members of the Bar working IN CONNECTION WITH DISCIPLINARY PROCEEDINGS OR under the direction of the Committee; AND HEALTH CARE PROFESSIONALS WORKING IN CONNECTION WITH DISCIPLINARY PROCEEDINGS shall be immune from suit for all conduct in the course of their official duties.
Amended and Adopted by the Court, En Banc, June 26, 1997, effective July 1, 1997.
By the Court:
Gregory J. Hobbs, Jr.
Justice, Colorado Supreme Court
U.S. District Court
For the District of Colorado
In the Matter of Local Rules of Practice
Order Abrogating D.C.Colo.LR 83.6P
On March 6, 1997, this court entered an order amending Local Rule 83.5 (Bar Admission) by substituting a new Local Rule 83.5 (The Bar of the Court). The self-executing provisions in paragraphs F and G of the new local rule effectively abrogate the provisions in D.C.Colo.LR 83.6P. To make explicit that which was implicit in the adoption of the new rule, it is now
ORDERED that D.C.Colo.LR 83.6P is abrogated.
Dated June 19, 1997, at Denver, Colorado.
By the Court:
All U.S. District Judges
District of Colorado
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