Crim. P. 45

History

Source: Entire rule amended and adopted May 17, 2001, effective July 1, 2001; (a) and (e) amended and Comment added May 7, 2009, effective July 1, 2009; (a) amended, (c), (d), and (e) repealed, and comment deleted and adopted December 14, 2011, effective July 1, 2012; comment added and adopted June 21, 2012, effective July 1, 2012. COMMENT After the particular effective date, time com- putation in most situations is intended to incor- porate the Rule of Seven. Under the Rule of Seven, a day is a day, and because calendars are divided into 7-day week intervals, groupings of days are in 7-day or multiples of 7-day inter- vals. Groupings of less than 7 days have been left as they were because such small numbers do not interfere with the underlying concept. Details of the Rule of Seven reform are set forth in an article by Richard P. Holme, 41 Colo. Lawyer, V ol. 1, P 33 (January 2012). Time computation is sometimes ‘‘forward,’’ meaning starting the count at a particular stated event [such as date of filing] and counting for- ward to the deadline date. Counting ‘‘back- ward’’ means counting backward from the event to reach the deadline date [such as a stated number of days being allowed before the com- mencement of trial]. In determining the effec- tive date of the Rule of Seven time computa- tion/time interval amendments having a statutory basis, said amendments take effect on July 1, 2012 and regardless of whether time intervals are counted forward or backward, both the time computation start date and deadline date must be after June 30, 2012. Further, the time computation/time interval amendments do not apply to modify the settings of any dates or time intervals set by an order of a court entered before July 1, 2012. ANNOTATION Law reviews. For article, ‘‘‘Rule of Seven’ for Trial Lawyers: Calculating Litigation Dead- lines’’, see 41 Colo. Law. 33 (January 2012). Rule preserves defendant’s right to raise fourth amendment issue. Section (d) of this rule which must be read in conjunction with Rule 41(e), Crim. P., adequately preserves a defendant’s right to raise a fourth amendment issue, while carrying out the salutary purpose of not commingling the fourth amendment issue with the guilt issue. Morgan v. People, 166 Colo. 451, 444 P.2d 386 (1968). Purpose of section (d) is to allow time for adequate preparation. People v. District Court, 189 Colo. 159, 538 P.2d 887 (1975). And notice served same day as pretrial hearing clear violation of rule. Where notice of motion to disqualify the district attorney from further participation in a criminal case is given to the district attorney’s office the same morning that the hearing on the motion was held, the consideration of this motion by the trial court when the district attorney did not have fair notice and an opportunity to defend himself is a clear violation of the provisions of this rule. People v. District Court, 189 Colo. 159, 538 P.2d 887 (1975). But failure to object to lack of notice con- stitutes waiver. If defendant fails to object to the lack of notice at the hearing prior to trial or fails to request a continuance, his silence con- stitutes a waiver of the five-day notice. Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971). Timely motion for new trial is not jurisdic- tional in the sense that without it the court would lack authority to adjudicate the subject matter. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Rather, it is a procedural prerequisite in- tended to assure that the matters appealed have been considered by the trial court. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). And prosecution’s failure to object waives timeliness issue on appeal. The people, by failing to object to the trial court’s hearing and deciding the new trial motion, waived their right to raise the timeliness issue on appeal. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Excusable neglect. A trial court may extend the time for filing a motion on the basis that failure to act on time was the result of excus- able neglect if there was a factual finding to support a claim of ineffective assistance of counsel. Swainson v. People, 712 P.2d 479 (Colo. 1986). Excusable neglect does not include family considerations or lack of knowledge of the law for purposes of extending the time to file a Crim. P. 35 motion. People v. Delgado, 83 P.3d 1144 (Colo. App. 2003), rev’d on other grounds, 105 P.3d 634 (Colo. 2005). Burden of showing excusable neglect under section (b) is upon the defendant. People v. Dillon, 655 P.2d 841 (Colo. 1982). Defendant wrongfully believing appeal be- ing processed by attorney allowed to file un- timely motion. In light of the defendant’s uncontroverted belief that his attorney is pro- cessing his appeal, the trial court abuses its discretion when it later denies defendant’s mo- tion to file an untimely motion and thereby perfect his appeal. People v. Dillon, 631 P.2d 1153 (Colo. App. 1981). Considerations governing determination of effect of time limitations in criminal cases and in civil cases. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Mere speculation regarding the court’s disposition of a motion for a continuance or to recall a witness does not obviate the defen- dant’s duty to seek such procedures if the de- fendant is to base his claim of prejudice on the inability to prepare new theories of defense or to cross-examine past witnesses in light of pre- viously undisclosed evidence. Salazar v. People, 870 P.2d 1215 (Colo. 1994). Applied in People v. Masamba, 39 Colo. App. 187, 563 P.2d 382 (1977); People v. Houpe, 41 Colo. App. 253, 586 P.2d 241 (1978); People v. Peterson, 656 P.2d 1301 (Colo. 1983).