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TCL > November 2002 Issue > Court Business

The Colorado Lawyer
November 2002
Vol. 31, No. 11 [Page  117]

© 2002 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts
Court Business

Court Business

Colorado Supreme Court Criminal Rules Committee
Rule Change 2002(11)
The Colorado Rules of Criminal Procedure
Chapter 29. Colorado Rules of Criminal Procedure
For All Courts of Record In Colorado

The following rule is amended as of September 12, 2002:

Rule 8. Joinder of Offenses and of Defendants

(a) Joinder of Offenses.

(1) Mandatory Joinder. If several offenses are actually known to the prosecuting attorney at the time of commencing the prosecution and were committed within his judicial district, all such offenses upon which the prosecuting attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any such offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution; except that, if at the time jeopardy attaches with respect to the first prosecution against the defendant, the defendant or counsel for the defendant actually knows of additional pending prosecutions that this subsection (a)(1) requires the prosecuting attorney to charge and the defendant or counsel for the defendant fails to object to the prosecution’s failure to join the charges, the defendant waives any claim pursuant to this subsection (a)(1) that a subsequent prosecution is prohibited.

(2) Permissive Joinder. [No Change]

(b) Joinder of Defendants. [No Change]

Amended and Adopted by the Court, En Banc, September 12, 2002, effective January 1, 2003.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court

 

Proposed Amendments to Chapter 29,
Colo. R. Crim. P. Rule 35(a) and (c): Postconviction Remedies
Notice of Public Hearing, December 5, 2002
Written Comments Due November 25, 2002

 

The Colorado Supreme Court will conduct a public hearing on Proposed Amendments to Colorado Rule of Criminal Procedure 35(a) and (c): Postconviction Remedies. The public hearing will be held on Thursday, December 5, 2002, at 2:00 p.m., in the Colorado Supreme Court Courtroom, 2 E. 14th Ave., Denver, Colorado.

An original and eight copies of written comments are to be submitted to: Mac V. Danford, Clerk of the Supreme Court, 2 E. 14th Ave., Denver, CO 80203-2115, by 5:00 p.m., November 25, 2002. Persons wishing to participate in the hearing should notify Mac Danford no later than November 25, 2002.

Note: Additions are underlined. For a copy of the related form entitled "Petition for Postconviction Relief Pursuant to Crim.P. 35(c)," please contact the office of the Clerk of the Supreme Court.

 

The Colorado Rules of Criminal Procedure
Chapter 29. Colorado Rules of Criminal Procedure
For All Courts of Record In Colorado

 

The following rule is amended as of September 12, 2002:

Rule 35. Postconviction Remedies.

Amended and Adopted by the Court, En Banc, September 12, 2002, effective January 1, 2003.

By the Court:

Alex J. Martinez
Justice, Colorado Supreme Court

 

Rule 35. Postconviction Remedies

 

(a) Correction of Illegal Sentence. The court may correct an illegal sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.

(b) [No Change]

(c) Other Remedies.

(1) [No Change]

(2) [No Change]

(I) [No Change]

(II) [No Change]

(III) [No Change]

(IV) That the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law; REPEALED

(V) [No Change]

(VI) [No Change]

(VII) [No Change]

(3) One who is aggrieved and claiming either a right to be released or to have a judgment of conviction set aside on one or more of the grounds enumerated in section (c)(2) of this Rule may file a motion in the court which imposed sentence to vacate, set aside, or correct the sentence, or to make such order as necessary to correct a violation of his constitutional rights. The following procedures shall apply to the filing and hearing of such motions:

(I) Any motion filed outside of the time limits set forth in § 16-5-402, 6 C.R.S. shall allege facts which, if true, would establish one of the exceptions listed in 16- 5-402(2), 6 C.R.S.

(II) Any motion filed also shall substantially comply with and contain the information detailed in Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c). See Appendix to Chapter 29.

(III) If a pro se motion substantially fails to comply with Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c), the court shall return to the defendant a copy of the document filed along with a blank copy of Form 4 and direct that a motion in substantial compliance with the form be filed within forty-five days.

(IV) The court shall promptly review all motions that substantially comply with Form 4, Petition for Postconviction Relief Pursuant to Crim. P. 35(c). In conducting this review, the court should consider, among other things, whether the motion is timely pursuant to § 16-5-402, whether it fails to state adequate factual or legal grounds for relief, whether it states legal grounds for relief that are not meritorious, whether it states factual grounds that, even if true, do not entitle the party to relief, and whether it states factual grounds that, if true, entitle the party to relief, but the files and records of the case show to the satisfaction of the court that the factual allegations are untrue. Unless If the motion and the files and record of the case show to the satisfaction of the court that the prisoner is not entitled to relief, the court shall enter written findings of fact and conclusions of law in denying the motion. The court shall complete its review within sixty days of filing or provide the defendant a notice of reasons for delay.

(V) If the court does not deny the motion under (IV) above, the court shall cause a complete copy of said motion to be served on the prosecuting attorney if one has not yet been served by counsel for the defendant. If the defendant has requested counsel be appointed in the motion, the court shall cause a complete copy of said motion to be served on the Public Defender. Within forty-five days, the Public Defender shall respond as to whether the Public Defender’s Office intends to enter on behalf of the defendant pursuant to § 21-1-104(1)(b), 6 C.R.S. In such response, the Public Defender shall identify whether any conflict exists, request any additional time needed to investigate, and add any claims the Public Defender finds to have arguable merit. Upon receipt of the response of the Public Defender, or immediately if no counsel was requested by the defendant or if the defendant already has counsel, the court shall direct the prosecution to respond to the defendant’s claims or request additional time to respond within thirty days and the defendant to reply to the prosecution’s response within twenty days. The prosecution has no duty to respond until so directed by the court. Thereafter, the court shall, grant a prompt hearing thereon, on the motion unless, based on the pleadings, the court finds that it is appropriate to enter a ruling containing written findings of fact and conclusions of law. At the hearing, the court shall and take whatever evidence is necessary for the disposition of the motion. If the petitioner has requested counsel and the court has not summarily determined that the prisoner is not entitled to relief, then the court shall also refer a copy of the motion to the public defender’s office for consideration pursuant to § 21-1-104(1)(b), 6. C.R.S.

In all cases, the court shall determine the issues and make findings of fact and conclusions of law with respect thereto. The court shall enter written or oral findings either granting or denying relief within sixty days of the conclusion of the hearing or provide the parties a notice of the reason for delay and date by which the ruling will be issued.

If the court finds that defendant is entitled to postconviction relief, the court shall make such orders as may appear appropriate to restore a right which was violated, such as vacatinge and setting aside the judgment, imposinge a new sentence, or granting a new trial, or discharginge the prisoner,defendant. or make such orders as may appear appropriate to restore a right which was violated. The court may stay its order for discharge of the prisoner defendant pending appellate court review of the order. If the court orders a new trial, and there are witnesses who have died or otherwise become unavailable, the transcript of testimony given at the trial, of such witnesses at the trial which resulted in the vacated sentence by witnesses who have since died or otherwise become unavailable, may be used at the new trial.

The court need not entertain a second motion or successive motions for similar relief based upon the same or similar allegations on behalf of the same prisoner.

(VI) The court shall deny any claim that was raised and resolved in a prior postconviction proceeding on behalf of the same defendant.

(VII) The court shall deny any claim that could have been presented in an appeal previously brought or postconviction proceeding previously brought except the following:

(a) Any claim based on events that occurred after initiation of the defendant’s prior appeal or postconviction proceeding;

(b) Any claim based on evidence that could not have been discovered previously through the exercise of due diligence;

(c) Any claim based on a new rule of constitutional law that was previously unavailable, if that rule should be applied retroactively to cases on collateral review;

(d) Any claim that the sentencing court lacked subject matter jurisdiction.

(VIII) Notwithstanding (VII) above, the court shall not deny a postconviction claim of ineffective assistance of trial counsel on the ground that all or part of the claim could have been raised on direct appeal.

(IX) The order of the trial court granting or denying the motion is a final order reviewable on appeal.

COMMITTEE COMMENT

As a practical matter and to avoid unnecessary delay, any motion filed pursuant to Rule 35(c) should include the following information:

A. Case number;

B. County and court where convicted;

C. Date of conviction;

D. Nature and length of sentence;

E. Whether conviction was by trial or plea;

F. The names and addresses of any attorneys who represented the defendant at any stage of the proceeding;

G. Whether there was an appeal, and if so, the case number of the appeal, the name of the court that considered the appeal, the result of the appeal, and the date of the result of the appeal;

H. Other than appellate motions, the nature of any previous post-trial petitions, applications or motions filed with respect the case;

I. Whether the petitioner is requesting counsel to be appointed;

J. All grounds for relief (failure to include all grounds may result in such additional grounds being barred from presentation in future motions); and

K. All facts which support each ground for relief presented as specifically as possible.

 

U.S. Bankruptcy Court for the District of Colorado

In the Matter of Waiver of Miscellaneous Filing Fee
For Electronic Filing of Amendments To a Debtor’s Schedule of
Creditors, Lists of Creditors, Matrix, or Mailing Lists
General Procedure Order Number 2002-5

 

THIS MATTER arises sua sponte in the interests of administration and in accordance with Item (4) of the Bankruptcy Court Miscellaneous Fee Schedule prescribed by the Judicial Conference of the United States pursuant to 28 U.S.C. 1930(b). The Court recognizes that Local Bankruptcy Rule 109(a)(2) imposes additional service requirements upon the debtor as follows:

Upon the filing of such amendments adding creditors whose names and addresses were not listed in time for the mailing of the Notice of Meeting of Creditors, the debtor shall forthwith mail to such additional creditors a copy of the Notice of Meeting of Creditors, and any subsequent notice in a Chapter 7 case regarding the bar date, if any, for the filing of proofs of claim, and set forth the date of filing of such amendment, and file a certificate of service showing compliance with this Rule. In a Chapter 12 or 13 case, and in the event a Notice of Possible Dividend was previously mailed to all creditors of record in a Chapter 7 case, the debtor shall also mail a proof of claim form to any creditor added by amendment pursuant to this Rule. Copies of any such amendments shall be served by the debtor upon the United States Trustee and upon any trustee appointed in the case, and such service shall be deemed to be in compliance with Fed.R.B.P. 1009(c).

The Court concludes that good cause exists to lessen unnecessary and unreasonable expenses to the debtor related to the filing and service of amendments. Therefore, pursuant to the Court’s authority in Item 4 of the Bankruptcy Court Miscellaneous Fee Schedule, it is

ORDERED that in the event debtor’s counsel electronically files, pursuant to General Procedure Order 2001-8 and the Administrative Procedures for Electronic Case Files attached thereto, an amendment to a debtor’s schedules, lists of creditors, matrix, or mailing lists, the filing fee prescribed by the Judicial Conference of the United States in Item 4 of the Bankruptcy Court Miscellaneous Fee Schedule is hereby waived.

Dated: September 20, 2002

By the Court:

Donald E. Cordova, Chief Judge
Sidney B. Brooks, Judge
Elizabeth E. Brown, Judge
A. Bruce Campbell, Judge

© 2002 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=2002.


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