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Vol. 41, No. 7 [Page 131]
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From the Courts
Colorado Supreme Court Rules Committee: Time Computation Rules—Amendments to Procedural Rules and Corresponding Statutes, Effective July 1, 2012
by Robert J. (Robin) Whitley
Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). Material printed in Court Business appears as submitted by the court and has not been edited by the staff of The Colorado Lawyer.
About the Author
Robin Whitley is Chief Appellate Deputy District Attorney with the Denver District Attorney’s Office and a member of the Colorado Supreme Court’s Advisory Committee on Rules of Criminal Procedure—firstname.lastname@example.org.
Colorado Supreme Court Rules Committee
Time Computation Rules—Amendments to Procedural Rules and Corresponding Statutes, Effective July 1, 2012
In the September 2011 issue of The Colorado Lawyer, Dick Holme explained the efforts underway to revamp the treatment of time computation in Colorado’s various sets of procedural rules.1 As he explained, the ultimate goal is a simpler and smoother way to specify time periods and compute deadlines set by rule. The two core innovations are: (1) counting every intervening day, including weekends and holidays, when computing deadlines (day-is-a-day principle); and (2) setting time frames using multiples of 7 days (multiples-of-7 principle). In combination, these two principles yield time periods that are of even-week lengths. Resulting deadlines thus normally fall on the same day of the week as the triggering event. For example, if a rule specifies how quickly a party must take some responsive action after service, and service is made on a Tuesday, the deadline for the responsive act will also fall on a Tuesday.
When the September 2011 article was published, rule changes already had been drafted and posted for public review and comment. With a few minor corrections, the Colorado Supreme Court adopted the rule changes on December 14, 2011.2
Many of those changes took effect on January 1, 2012.3 However, a number of time frames set by court rules also are treated in parallel statutes. The Court delayed the changes to those rules until July 1, 2012 to allow for corresponding legislative changes.4 Those statutory changes have now been adopted.5 Both the legislation and the last set of rule changes take effect July 1, 2012.
Rules of Criminal Procedure
The bulk of changes taking effect on July 1, 2012 are in the Rules of Criminal Procedure (Criminal Rules or Crim.P.). A smattering of changes also have been made to the civil, juvenile, municipal, and appellate rules. This article focuses on this last set of rule changes. It highlights the most significant adjustments, as well as those that depart from the general scheme or that, as of the time of this writing, still are in conflict with some statute.
The chart at the end of this article lists the changes. Following are summaries of some of the changes.
Computation of Time
In the Criminal Rules, Crim.P. 45 is the central rule regarding time computation. Just as for the corresponding civil rule6 and appellate rule,7 it is here that the change to the day-is-a-day principle is accomplished. This is done by:
1) removing the provision that had excluded non-business days from time periods shorter than 11 days;8 and
2) removing the provision that had added 3 extra days after certain types of service.9
These changes combine with the move to multiples-of-7 time frames, so that deadlines normally will fall on the same weekday as the triggering event. An exception arises when the deadline happens to fall on a non-business day (such as a holiday). In that situation, the deadline is extended to the next business day. Here, an elegant clarification has been added, just as in the new civil rule10 counterpart: Crim.P. 45(a) now clarifies that one continues to count in the same direction. As stated in the 2011 article:
In other words, one counts days after the filing of a motion to calculate when the answer is due, but counts backwards for deadlines "x" days before the trial date. For example, a filing that normally would be due on a holiday Monday, 21 days before a Monday trial date, would be due the Friday before the Monday holiday—not the Tuesday after.11
Crim.P. 45 has changed in another notable way. Rule 45 concerns how to compute and apply rule-based time periods. It does not set time deadlines for particular events; rather, that task is addressed in the various rules that pertain to particular events. Confusingly, subsection (d) did set a time deadline for a particular event—the filing of motions—specifying how far in advance of a hearing a motion must be filed. The subsection therefore was out of place. It belongs in Rule 47—the specific rule concerning motions—and has now been moved there. Also, its deadline has been adjusted to one week (7 days) before the hearing.
Finally, subsection (c) of Crim.P. 45 has been repealed. This was an archaic provision relating to expiration of court terms. A similar provision in the civil rules was repealed in the previous wave of changes.12
The Colorado Municipal Court Rules are additions to the Criminal Rules and govern procedure in all municipal charter and ordinance violation cases.13 Their organization and substance mirror the criminal rules in many respects. For example, Colorado Municipal Court Rule (CMCR) 245 is the central time-computation rule, and it is very similar to Crim.P. 45. It has undergone the same primary substantive changes as Crim.P. 45, and the two rules will work alike.14 However, subsection (d) of CMCR 245—setting a deadline for filing a motion in advance of a hearing—remains in place. Its deadline has been adjusted to one week (7 days) before the hearing,15 matching the newly relocated Crim.P. 47(b).
In a departure from the common approach of lengthening time frames, the window for demanding a preliminary hearing in county court has been shortened. The deadline is now one week (7 days) after the defendant is brought before the court.16 Offsetting this reduction, the deadline for holding the preliminary hearing is now extended to 5 weeks (35 days) after setting, both for county court17 and district court.18
The discovery time frames set out in Crim.P. 16 have been set according to the new principles. Although this results in some deadlines being slightly later and others being slightly earlier, practitioners should find adjustment very easy because of the multiples-of-7 scheme. For example, the prosecution’s front-end disclosures are now due 3 weeks (21 days) after the defendant’s first appearance at the time of or following the filing of charges.19 Prosecution tail-end disclosures will be due no later than 5 weeks (35 days) before trial.20
The deadline for most defense disclosures in non-felony cases must now be at least a week (7 days) before trial.21 For felony cases,22 and for alibi disclosures in all cases,23 the deadline must be at least 5 weeks (35 days) before trial.
The familiar 120-day deadline for filing a Crim.P. 35(b) motion seeking a sentence reduction has been replaced with an 18-week (126-day) deadline.24 This same deadline also controls motions to correct sentences imposed in an illegal manner.25
Both rule and statute specify certain time requirements regarding probation revocation proceedings. The deadline for a revocation hearing for an in-custody probationer has been shortened to 2 weeks (14 days) from filing of the complaint (down from 15 days).26 After the hearing, the court will now have one week (7 days) from the hearing in which to revoke or continue probation, if a violation is proved.27
Rules of Civil Procedure
There are changes to the Colorado Rules of Civil Procedure (Civil Rules or CRCP) that become effective on July 1, 2012. Below are summaries of some of the Civil Rule changes.
Garnishment procedures are covered in CRCP 103 and 403. These rules set forth numerous time periods. Because a few have parallel statutes, all of the changes to these two rules were delayed to facilitate matching statute changes. This has largely been accomplished.28
With a notable exception, the normal approach of increasing to the next higher multiple of 7 was applied to the rules. Thus, all 5-day periods went to 7 days, all 20-day periods went to 21, 30 became 35, 40 became 42, 90 became 91, and 180 became 182. Finally, most (but not all) 10-day periods became 14 days.
Two deadlines in the rules were shortened, and this appears to have led to a discrepancy between the rules and the corresponding statute. In particular, the deadline for a judgment debtor to file a claim of exemption concerning a "writ with notice" (seeking garnishment of property other than earnings) was changed in the rule from 10 days to one week (7 days) after service.29 In contrast, the statutory period was increased from 10 days to 2 weeks (14 days).30 Until it is corrected, practitioners will need to be aware of this discrepancy.
Spurious Lien or Document
Rule 105.1 of the Civil Rules concerns spurious liens or documents. The rule specifies, among other things, the time window for service of an order to show cause why an allegedly spurious lien or document should not be declared invalid. It is amended to set that window at no less than 2 weeks (14 days) and no more than 3 weeks (21 days) before the hearing on the show cause order.31 The parallel statute has been similarly amended.32
The rule also requires a response to a petition seeking such a show cause order. The deadline for the response has been adjusted to one week (7 days) before the hearing.33 There is no corresponding statutory provision.
Appeals From County Court
Time frames for civil appeals from county court have been adjusted in both rule and statute and, unfortunately, not all of the adjustments coincide. The rule-based deadline for filing a notice of appeal in the county court was reduced from 15 days to 14 days. The deadline for filing the appeal bond was identically altered.34 In contrast, the statutory deadline for these two actions was increased from 15 days to 21 days.35 Until this conflict is resolved, cautious parties and counsel will abide by the more stringent rule deadline, and file their notices of appeal and appeal bonds within 2 weeks (14 days) after the date of entry of judgment.
The deadline for docketing the appeal in the district court is set only in the rule. It has been adjusted to 5 weeks (35 days) after the filing of the notice of appeal.36
The time for preparing transcripts of the proceedings is set in both rule and statute. In both, the deadline is now 6 weeks (42 days) after judgment.37 However, the rule and statute continue to diverge concerning the due date for objections to the record. The rule’s time frame has been changed (from its former 10 days) to 2 weeks (14 days) after notice of the completion of the record.38 However, the statute, which had earlier specified 15 days, now allows 3 weeks (21 days) after the record is complete.39 Again, parties and practitioners would do well for now to work within the more stringent rule deadline.
As for briefing, the rule and statute have been harmoniously modified. They both now allow 3 weeks (21 days) each for the opening and answer briefs.40
Rules of Juvenile Procedure
Regarding adoption petitions, Rule 6(b) of the Rules of Juvenile Procedure sets a deadline by which the petitioner must file supporting documentation. The deadline had been 10 days before the hearing on the petition. The amended rule advances the deadline to 2 weeks (14 days) before the hearing.41
Colorado Appellate Rules
All changes to the Colorado Appellate Rules (CAR)—with the exception of one—took effect in January 2012. Rule 4 sets the deadlines for filing many kinds of appeals. Its changes were delayed until July 1, 2012. Under the new rule, the amended time frames will be as follows:
• Deadline for notice of appeal from district, probate, or juvenile court in a civil case: 7 weeks (49 days) after the judgment, decree, or order being appealed.42 (Note: This does not include certain special appeals—namely, appeals from the Industrial Claim Appeals Office,43 appeals from denial of a petition for waiver of parental notification requirements,44 appeals of grant or denial of class certification,45 and appeals from dependency-and-neglect proceedings.46)
• Deadline for notice of appeal from district, probate, or juvenile court in a civil case by other parties after one party has appealed: 2 weeks (14 days) after the original notice of appeal47
• Potential extension of above deadlines for excusable neglect: 5 weeks (35 days)48
• Deadline for a defendant’s notice of appeal to the court of appeals in a criminal case: 7 weeks (49 days) from judgment or order being appealed49
• Potential extension of deadline for defendant’s notice of appeal to the court of appeals in a criminal case for excusable neglect: 5 weeks (35 days)50
• Deadline for defendant’s notice of appeal to the court of appeals seeking review of a criminal sentence: 7 weeks (49 days) after sentence is imposed51
• Deadline for the prosecution’s notice of appeal from the district court in a criminal case: 7 weeks (49 days) after the judgment or order being appealed.52 (Note: Deadlines set in statutes or other appellate rules prevail over this rule. See, for example, previously amended CAR 4.1(b), which sets a 2-week (14-day) deadline for a notice of interlocutory appeal.53)
• Deadline for transmitting the record in a death penalty appeal: 6 weeks (42 days) after imposition of sentence.54
Legislative Action—Broader Than Rule Changes
The legislative amendments went beyond changes to the procedural rules, converting many other time frames into the multiples-of-7 scheme. In fact, 172 statutes were changed. Summarizing statutory changes not keyed to one of the procedural rules is beyond the scope of this article; however, the broad adoption of the day-is-a-day and multiples-of-7 principles in the procedural rules and the numerous statutes pertaining to judicial activities should make life easier for all involved.
1. Holme, "Proposed New Rules for Calculating Trial and Appellate Deadlines—Attorney Comments Requested," 40 The Colorado Lawyer 27 (Sept. 2011).
2. Colorado Supreme Court Rule Changes 2011(18) and 2011(19), available respectively at www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/
2011/2011_18_redlined.pdf and www.courts.co.us/userfiles/file/Court_Probation/Supreme_
3. Rule Change 2011(18).
4. Rule Change 2011(19).
5. Colorado Senate Bill (SB) 12-175.
6. SB 12-175.
7. CAR 26.
8. Former Crim.P. 45(a).
9. Former Crim.P. 45(e).
10. CRCP 6(a)(1).
11. Holme, supra note 1 at 27.
12. Rule Change 2011(18) at 3, deleting the former CRCP 6(d).
13. CMCR 201 and 260.
14. CMCR 245, Rule Change 2011(19) at 9-10.
15. CMCR 245(d), Rule Change 2011(19) at 10.
16. Crim.P. 5(a)(4)(I) and (a)(5), Rule Change 2011(19) at 13, 14.
17. Crim.P. 5(a)(4)(I), Rule Change 2011(19) at 13.
18. Crim.P. 7(h)(2), Rule Change 2011(19) at 15.
19. Crim.P. 16(I)(b)(1), Rule Change 2011(19) at 16.
20. Crim.P. 16(I)(b)(3), Rule Change 2011(19) at 16.
21. Crim.P. 16(II)(c) and (V)(b)(1), Rule Change 2011(19) at 16, 17.
23. Crim.P. 16(II)(d), Rule Change 2011(19) at 16; CRS § 16-7-102, SB 12-175 at 41, § 75.
24. Crim.P. 35(b), Rule Change 2011(19) at 21.
25. Crim.P. 35(a).
26. Crim.P. 32(f)(4), Rule Change 2011(19) at 18; CRS § 16-11-206(4), SB 12-175 at 49, § 87.
27. Crim.P. 32(f)(5), Rule Change 2011(19) at 18; CRS § 16-11-206(5), SB 12-175 at 49, § 87.
28. CRCP 103 and 403, Rule Change 2011(19) at 2-3, 5-7.
29. CRCP 103(2)(G)(2) and (G)(4), Rule Change 2011(19) at 2-3; CRCP 403(2)(G)(2) and (G)(4), Rule Change 2011(19) at 6.
30. CRS § 13-54.5-108(1)(b), SB 12-175 at 8, § 16.
31. CRCP 105.1(1) and (1)(b), Rule Change 2011(19) at 4.
32. CRS § 38-35-204(1)(a), SB 12-175 at 105, § 170.
33. CRCP 105.1(1)(c), Rule Change 2011(19) at 4-5.
34. CRCP 411(a), Rule Change 2011(19) at 7.
35. CRS § 13-6-311(1)(a), SB 12-175 at 2, § 3.
36. CRCP 411(a), Rule Change 2011(19) at 7.
37. CRCP 411(b), Rule Change 2011(19) at 8; CRS § 13-6-311(2)(a), SB 12-175 at 3-4, § 3.
38. CRCP 411(b), Rule Change 2011(19) at 8.
39. CRS § 13-6-311(2)(b), SB 12-175 at 3, § 3.
40. CRCP 411(d), Rule Change 2011(19) at 8; CRS § 13-6-311(4), SB 12-175 at 3, § 3.
41. Colo.R.Juv.P. 6(b), Rule Change 2011(19) at 8.
42. CAR 4(a), Rule Change 2011(19) at 10.
43. See CAR 3.1.
44. See CAR 3.2.
45. See CAR 3.3.
46. See CAR 3.4.
47. CAR 4(a), Rule Change 2011(19) at 10.
48. CAR 4(a), Rule Change 2011(19) at 11.
49. CAR 4(b)(1), Rule Change 2011(19) at 11.
50. CAR 4(b)(1), Rule Change 2011(19) at 11-12.
51. CAR 4(c)(II)(A), Rule Change 2011(19) at 12.
52. CAR 4(b)(2), Rule Change 2011(19) at 12.
53. CAR 4.1(b), Rule Change 2011(18) at 57.
54. CAR 4(d)(2)(II), Rule Change 2011(19) at 12.
Changes to Rules of Criminal Procedure
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