Rule Change No. 2004(17).Supreme Court of Colorado.
September 9, 2004.
Rule Change 2004 (17) THE COLORADO APPELLATE RULES CHAPTER 32Rule 3.3 Appeals of Grant or Denial of Class Certification
An appeal from an order granting or denying class certification under C.R.C.P. 23 (f) may be allowed pursuant to the procedures set forth in that rule and C.R.S. § 13-20-910.
Rule 4. Appeal as of Right — When Taken
(a) Appeals in Civil Cases (Other than Appeals or Appellate ReviewWithin C.A.R. 3.1, 3.2 and 3.3). Except as provided in Rule 4(e), In a civil case in which an appeal is permitted by law as of right from a trial court to the appellate court, the notice of appeal required by C.A.R. 3 shall be filed with the appellate court with an advisory copy served on the clerk of the trial court within forty-five days of the date of the entry of the judgment, decree, or order from which the party appeals. In appeals from district court review of agency actions, such notice of appeal shall be in addition to the statutory forty-five-day notice of intent to seek appellate review filed with the district court required by C.R.S. 24-4-106 (9). If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within fourteen days of the date on which the first notice of appeal is filed, or within the time otherwise prescribed by this section (a), whichever period last expires.
The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the trial court by any party pursuant to the Colorado Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this section (a) commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: (1) Granting or denying a motion under C.R.C.P. 59, for judgment notwithstanding verdict; (2) granting or denying a motion under C.R.C.P. 59, to amend findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) granting or denying a motion under C.R.C.P. 59, to alter or amend the judgment; (4) denying a motion for a new trial under C.R.C.P. 59; (5) expiration of a court granted extension of time to file motion(s) for post-trial relief under C.R.C.P. 59, where no motion is filed. The trial court shall continue to have jurisdiction to hear and decide a motion under C.R.C.P. 59 regardless of the filing of a notice of appeal, provided the C.R.C.P. 59 motion is timely filed under C.R.C.P. 59(a) and determined within the time specified in C.R.C.P. 59(j). During such time, all proceedings in the appellate court shall be stayed. A judgment or order is entered within the meaning of this section (a) when it is entered pursuant to C.R.C.P. 58. If notice of the entry of judgment, decree, or order is transmitted to the parties by mail, the time for the filing of the notice of appeal shall commence from the date of the mailing of the notice.
Upon a showing of excusable neglect, the appellate court may extend the time for filing the notice of appeal by a party for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this section (a). Such an extension may be granted before or after the time otherwise prescribed by this section (a) has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the court shall deem appropriate.
(b) Appeals in Criminal Cases.
(1) Except as provided in Rule 4(e), in a criminal case the notice of appeal by a defendant shall be filed in the appellate court and an advisory copy served on the clerk of the trial court within forty-five days after the entry of the judgment or order appealed from. A notice of appeal filed after the announcement of a decision, sentence, or order but before entry of the judgment or order shall be treated as filed on the date of such entry. If a timely motion in arrest of judgment or for a new trial on any ground other than newly discovered evidence has been made, an appeal from a judgment of conviction may be taken within forty-five days after the entry of an order denying the motion. A motion for a new trial based on the ground of newly discovered evidence will similarly extend the time for appeal from a judgment of conviction if the motion is made within ten days after entry of the judgment. A judgment or order is entered within the meaning of this section (b) when it is entered in the criminal docket. Upon a showing of excusable neglect the appellate court may, before or at any time after the time has expired, with or without motion and notice, extend the time for filing a notice of appeal for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this section (b).
(2) Unless otherwise provided by statute or Colorado appellate rule, when an appeal by the state or the people is authorized by statute, the notice of appeal shall be filed in the Court of Appeals within forty-five days after the entry of judgment or order appealed from. The Court of Appeals, after consideration of said appeal, shall issue a written decision answering the issues in the case and shall not dismiss the appeal as without precedential value. The final decision of the Court of Appeals is subject to petition for certiorari to the Supreme Court.
(3) Prosecutorial Appeals in Criminal Cases. An appeal by the state or the people from an order dismissing one or more but less than all counts of a charging document prior to trial, including a finding of no probable cause at a preliminary hearing, shall be filed in the court of appeals unless the order is based on a determination that a statute, municipal charter provision, or ordinance is unconstitutional, in which case the appeal shall be filed in the supreme court. Appeals of orders dismissing one or more but less than all counts of a charging document shall otherwise be conducted pursuant to the procedures set forth in Rule 4.1, except petitions for rehearing and certiorari shall be permitted, and mandates shall issue, as provided by these rules.”
(c) Appellate Review of Felony Sentences.
(1) Availability of Review. Except in those cases provided for in subsection (e) of this Rule, a person upon whom sentence is imposed for conviction of a felony shall have the right to one appellate review of the propriety of the sentence, having regard to the nature of the offense, the character of the offender, the public interest, and the sufficiency and accuracy of the information on which the sentence was based.
(I) If the appeal review of conviction is sought in a case where there has been a trial and conviction on the merits, appellate review of the propriety of the sentence will be a part of and be treated in the same manner as the review of the conviction.
(II) If the appeal is to review a sentence following a plea of guilty or nolo contendere, or resentencing, where the imposition of sentence was the only issue before the court, then the following abbreviated procedure for appellate review of sentences will be utilized:
(A) The notice of appeal must be filed within forty-five days from the date of the imposition of sentence. The notice shall be filed with the appellate court with an advisory copy served on the clerk of the trial court which imposed the sentence. The time for filing the notice of appeal may be extended by the appellate court.
(B) Except as provided by this Rule, the Colorado Appellate Rules governing criminal appeals shall apply to appellate review of sentences.
(d) Appeals of Cases in Which a Sentence of Death Has Been Imposed.
(1) Availability of Review. Whenever a sentence of death is imposed, the Supreme Court shall review the propriety of the sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information upon which it was based.
If the Supreme Court determines that the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor, or that, as a matter of law, the sentence is not supported by the evidence, a sentence of death shall not thereafter be imposed.
(2) Procedure and Conditions.
(I) The trial court, at the time of imposition of a sentence of death, shall enter an order staying execution of the judgment and sentence until further order of the Supreme Court, and shall direct the clerk of the trial court to mail to the Supreme Court, within seven days of imposition of sentence, a copy of the judgment, sentence, and mittimus.
(II) The record, as described in subsection (3) of this Rule, 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 Supreme Court.
(III) Except as provided by subsection (e) of this Rule, the Colorado Appellate Rules governing criminal appeals shall apply to appellate review of sentences.
(3) Record on Appeal. In appeals under subsection (e) of 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; the instructions given by the trial court and tendered by the parties in the 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.
(e) Appeal by an Inmate Confined in an Institution. If an inmate confined in an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely filed it it is deposited in the institution’s internal mail system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.
Amended August 23, 1984, effective January 1, 1985; Amended July 7, 1988, effective August 1, 1988; Amended and effective June 18, 1992; Amended March 17, 1994, effective July 1, 1994; Amended and effective April 7, 1994; Corrected and effective January 9, 1995; Entire rule amended and adopted May 17, 2001, effective July 1, 2001; Corrected June 12, 2001, effective July 1, 2001; added and adopted June 27, 2002, effective July 1, 2002.
Rule 34. Oral Argument
(a) Notice of Argument; Postponement. The clerk shall advise all parties of the time and place at which oral argument will be heard. A request for postponement of the argument must be made by motion filed reasonably in advance of the date fixed for hearing.
(b) Time Allowed for Argument.
(1) In the Supreme Court. Oral argument may be allowed at the discretion of the court. A request for oral argument shall be made in a separate, appropriately titled document and filed no later than ten days after the briefs are closed. In the absence of a request for oral argument, the court may order oral argument. Unless otherwise ordered by the court, each side will be allowed thirty minutes for argument. A request for additional time may be made by motion filed within ten days after the briefs are closed, but shall be granted only if good cause is shown. The court may terminate the argument whenever in its judgment further argument is unnecessary.
(2) In the Court of Appeals. Oral argument in the Court of Appeals will be allowed upon the written request of a party or upon the court’s own motion, unless the court, in its discretion, discretion, dispenses with oral argument. A request for oral argument shall be made in a separate, appropriately titled document and filed no later than ten days after the briefs are closed. Unless otherwise ordered, argument shall not exceed fifteen minutes for the appellants and fifteen minutes for the appellees. The court may terminate the argument whenever in its judgment further argument is unnecessary.
(c) Order and Content of Argument. The appellant is entitled to open and conclude the argument. The opening argument shall include a concise statement of the case. Counsel will not be permitted to read at length from briefs, records, or authorities. Counsel are limited in their arguments to issues raised in the briefs, unless permitted by the court.
(d) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument.
(e) Nonappearance of Parties. If the appellee fails to appear to present argument, the court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if his counsel is present. If neither party appears, the case will be decided on the briefs unless the court shall otherwise order.
(f) Submission on Briefs. By written stipulation the parties may request that the case be stricken from the oral argument calendar and be submitted to the court on the briefs.
(g) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents are to be used at the argument, counsel shall arrange to have them placed in the court room before the court convenes on the date of the argument. After the argument counsel shall cause the exhibits to be removed from the court room unless the court otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best.
(h) Supreme Court Sessions En Banc and in Departments. The chief justice may convene the court en banc at any time, and shall do so on the written request of three justices. Subject to this provision, or as limited by the constitution, sessions of the court in departments for the purpose of hearing oral arguments, and designation of the justices to hear such arguments, shall be under the direction and control of the chief justice. In case of his absence or inability to act such duties shall devolve upon the deputy chief justice.