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CHAPTER 14: POST-JUDGMENT PROCEEDINGS - Table of Contents

14.1 - Overview14.2 - Direct Appeals14.3 - Crim. p. 35(b) Proceedings (Reconsideration of Sentence)14.4 - Crim. P. 35(c) Proceedings14.5 - Revocation Proceedings14.6 - Appeals to Federal Court14.7 - Appeals in Civil Cases

14.4 CRIM.P. 35(c) PROCEEDINGS

Section 18-1-410, C.R.S. and Rule 35(c) of the Colorado Rules of Criminal Procedure allow defendants to raise certain claims in the trial court even after they have been convicted and exhausted all of their direct appeal rights. Such claims are called "collateral attacks." For example, a defendant may believe that he has located important new evidence that was not previously available to the defense that would have changed the outcome of his case, or may come to believe that his attorney did not provide adequate representation to him during the pendency of the case. Claims like these may be raised under Rule 35(c) even if the case was appealed in the regular fashion and that appeal was unsuccessful.

Not every type of claim can be raised under Rule 35(c). The Rule does not establish the right to re-try the case, nor to raise issues that, with very limited exceptions, were previously decided or could have been presented as part of the initial appeal. Issues that may be raised under Rule 35(c) are limited to

1) significant changes in the law,
2) constitutional violations in the statute or underlying the conviction or sentence,
3) a lack of jurisdiction by the trial court that heard the case,
4) newly discovered evidence,
5) any other grounds "properly the basis for collateral attack", or
6) claims that the sentence has been fully served.

The Supreme Court amended rule 35(c) effective July 1, 2004, to provide procedural requirements, including a form to be followed for these motions.

In addition, there are time limits within which such claims must be brought. There is an interest in having some finality to decisions of the court, and there is a cost involved in litigating these claims, especially as more and more time passes since the conviction. Therefore, the legislature passed a statute of limitations on collateral attacks, and required that a person bringing such attacks, including motions pursuant to Rule 35(c), do so within three years of any felony conviction other than for a class 1 felony, eighteen months of a misdemeanor conviction and six months for a petty offense conviction. There is no statute of limitations for collateral attacks involving a conviction of a class 1 felony. Motions presenting collateral attacks that are filed after the time limits must be justified by a specified exception, such as the court lacked personal or subject matter jurisdiction or the failure to file a timely motion was due to "justifiable excuse" or "excusable neglect".

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