Appeals, Civil Appeals, Colorado Appeals, Criminal Appeals, Uncategorized

Should My Trial Attorney Write My Appeal?

Posted on by Alderman Law Firm

After going through the lengthy trial process, most litigants presume that their trial level attorney will handle the appeal. After all, who knows the case better than he or she does? In reality, however, most trial level attorneys will not handle appeals as a rule. Think of it this way: you wouldn’t seek out an appellate specialist to handle your case at the trial level, so why would you pursue an appeal with a trial specialist?

Your trial level attorney will still be an important part of your appeal. It is common practice for an appellate attorney to discuss a case with the trial level attorney in order to determine what he or she believes to be important issues for appeal. Moreover, the trial level attorney will be responsible for forwarding the case file to the appellate attorney.

Your appellate attorney will look at the case with an objective, fresh eye, and a working knowledge of effective appellate arguments. In some cases, the best post-conviction argument will be that the trial attorney made an error, rendering his or her assistance as ineffective. Although attorney errors are common, it would be difficult for an attorney to argue that his or her own performance was deficient.

Moreover, appellate practice requires careful attention to appellate rules and procedures. Appellate specialists have a solid working knowledge of these rules and procedures because they work with them daily. Therefore, it takes them less time to draft compliant appellate documents. While a trial attorney can certainly look up and follow appropriate rules and procedures, there is no substitute for experience.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

Appeals, Civil Appeals, Criminal Appeals

How Do Appeals Work in Colorado?

Posted on by Alderman Law Firm

In any jurisdiction, an appeal is a legal proceeding through which a party that received an adverse decision seeks review of that decision in a higher court. An appeal is not an opportunity to re-litigate a case or present new evidence, but rather to point out an error that occurred in the trial court.

The first step to filing an appeal is determining what court has jurisdiction to hear your appeal, and when the deadline is to file your notice of appeal. It is vital that you file your notice of appeal within the correct deadline with the correct court. In most cases, failure to do so will be fatal to an appeal.

The reviewing court will decide your appeal based on the record. The record contains pertinent documents evidencing what happened at the trial level, including pleadings, transcripts, and orders. Generally, a litigant cannot add newly discovered materials to the record. It is important to show that the alleged error has been preserved – meaning that you or your attorney pointed out the error via objection or motion, and the trial court had an opportunity to issue an appropriate ruling.

The process of an appeal is lengthy and uneventful. You or your attorney will review the record, then make your argument in writing (your opening brief). The appellee will have an opportunity to file a written answer to your opening brief, after which you may (but are not required to) file a reply brief. Following submission of these three briefs, neither party is permitted to file any additional materials. In most cases, the court will decide the case based on the briefs and record, then file a written decision.

To speak with a knowledgeable attorney about your appeal, contact the Alderman Law Firm today for your free consultation.

Appeals, Civil Appeals, Colorado Appeals, Criminal Appeals

Will the Colorado Court of Appeals Reconsider my Case?

Posted on by Alderman Law Firm
If you lose your case in the court of appeals, there is a mechanism through which you can ask the court of appeals to reconsider its order, prior to requesting review from the state supreme court. This is a called a motion for reconsideration. In most cases, a motion for reconsideration is not appropriate. A motion for reconsideration is not an opportunity for a litigant to re argue his case because he is dissatisfied with the ruling from the court of appeals, or feels that the court failed to focus on what he believed to be a critical fact or argument. Rather, a motion for reconsideration is only appropriate where the Court of Appeals misstated the material facts or applicable law. If this is the case, a motion for reconsideration is a better option than a petition for review with the state supreme court, because the state supreme court typically takes cases alleging an issue of statewide impact, rather than those that allege a factual error in the court of appeals. If you think a petition for rehearing is appropriate in your case, it is important to act quickly. In Colorado, the deadline to file a petition for rehearing in the Colorado Court of Appeals is 14 days after the date of the appellate decision under Colorado Appellate Rule 40. While the court has limited authority to extend certain deadlines, parties should not rely on obtaining an extension, and late filings are routinely denied. To speak with a knowledgeable attorney about your appeal, contact the Alderman law Firm today for your free consultation by calling 720-588-3529.
Appeals

Will the Court Extend Statutory Deadlines During My Colorado Appeal?

Posted on by Alderman Law Firm

Colorado appellate rules provide strict deadlines for filing documents and taking other actions throughout the appellate process. For instance, an appellant must file the opening brief within the time set after the record is filed in the Colorado Court of Appeals under the Colorado Appellate Rules or a case-specific scheduling order.

By filing a motion for extension of time, a party requests that the court enlarge a specific deadline. Under Colorado Appellate Rule 26(b), the appellate court may, for good cause shown, enlarge the time prescribed by the rules or by court order, or permit an act to be done after the expiration of the prescribed time.

In both criminal and civil cases, parties may file a motion for extension of time to file appellate briefs. In a motion to extend time, a party must explain to the court why an extension is appropriate and how long of an extension is requested.

Not all deadlines are treated the same. The deadline to file a petition for writ of certiorari in the Colorado Supreme Court is important, but the court may extend it upon a timely motion showing good cause. A party should never assume an extension will be granted, and waiting until the last moment significantly reduces the likelihood of relief.

If you are interested in hiring an appeals lawyer to assist with your appeal, contact the Alderman Law Firm by calling 720-588-3529.

Appeals, Criminal Appeals

Can I Ask to be Released From Jail While My Appeal is Pending?

Posted on by Alderman Law Firm

Yes. Colorado law allows, in extremely limited circumstances, a defendant who has been convicted to seek release on bond while an appeal is pending. This is called an appeal bond or release pending appeal. It is important to understand that this relief is rarely granted.

Colorado statute C.R.S. § 16-4-201 and § 16-4-202, together with Colorado Appellate Rule 8, permit a trial court — and in rare cases an appellate court — to grant release only if strict requirements are satisfied. A convicted defendant is no longer presumed innocent, and the presumption shifts strongly in favor of custody once a judgment of conviction has entered.

Release may be granted only if the court finds, among other things, that:

  • The defendant is not likely to flee and will appear as required;
    • The defendant does not pose a danger to any person or to the community;
    • The appeal is taken in good faith and is not for purposes of delay; and
    • The appeal presents a substantial question of law or fact likely to result in reversal, a new trial, or a sentence that would not include incarceration.

In practice, the last requirement is the barrier. The court must be persuaded not merely that an appeal has been filed, but that the appeal raises a serious legal issue with a real possibility of success. Because most appeals challenge discretionary rulings or fact findings — and because the conviction itself has already been affirmed by the trial process — courts almost never conclude this standard is met.

To request release, a defendant must file a written motion demonstrating that his or her circumstances satisfy the statutory and rule-based criteria. The motion is filed in the trial court and served on the prosecuting attorney.

After filing, the trial court may hold a hearing. The court may consider the nature of the offense, the sentence imposed, the defendant’s criminal history, ties to the community, prior compliance with bond conditions, and public safety. Even where a defendant previously complied with pretrial release, courts frequently deny release after conviction because the legal standard is significantly higher.

If release is granted, the defendant must post an appeal bond and comply with any restrictions set by the court. The prosecution may seek review of that order, and the appellate court may revoke the release.

Because a conviction eliminates the presumption of innocence and the defendant is now serving a lawfully imposed sentence, release pending appeal is the exception rather than the rule. In most cases — even meritorious appeals — defendants remain in custody while the appeal proceeds.

CO Rev Stat § 16-4-202 (2024):

(1)(a) After conviction, either before or after sentencing, the defendant may orally, or in writing, move for release on bail pending determination of a motion for a new trial or motion in arrest of judgment or during any stay of execution or pending review by an appellate court, and, except in cases where the defendant has been convicted of a capital offense, the trial court, in its discretion, may continue the bond given for pretrial release, or may release the defendant on bond with additional conditions including monetary conditions, or require bond under one or more of the alternatives set forth in section 16-4-104.

(b) The district attorney must be present at the time the court passes on a defendant’s motion for release on bail after conviction.

(c) Bond shall not be continued in effect following a plea of guilty or of nolo contendere or following conviction unless the written consents of the sureties, if any, are filed with the court. In the initial bond documents filed with the court, a surety shall indicate, in writing and at the time of the posting of bond, if the surety consents to the continuance of the bond through sentencing of the defendant. If the surety does not provide written consent at the time of the initial posting of bond, the surety may provide written consent at the time of the plea of guilty or nolo contendere or within a reasonable time thereafter as determined by the court. A court shall not require the posting of any form of bond that allows for the continuance of said bond after a plea of guilty or of nolo contendere or following conviction without filing with the court the written consents of the sureties, if any.

(d) For a defendant who has been convicted of a felony offense, a condition of bail bond shall be that the court shall require the defendant to execute or subscribe a written prior waiver of extradition stating that the defendant consents to extradition to this state and waives all formal procedures incidental to extradition proceedings in the event that he or she is arrested in another state while released on such bail bond and acknowledging that he or she shall not be admitted to bail in any other state pending extradition to this state.

(2) After conviction, a defendant who is granted probation pursuant to section 18-1.3-202, C.R.S., may orally, or in writing, move for a stay of probation pending determination of a motion for a new trial or a motion in arrest of judgment or pending review by an appellate court. The trial court, in its discretion, may grant a stay of probation and require the defendant to post an appeal bond under one or more of the alternatives set forth in section 16-4-104. The district attorney shall be present at the time the court passes on a defendant’s motion for stay of probation after conviction.

CO Rev Stat § 16-4-202 (2024):

(1) The court shall consider the following factors in deciding whether or not an appeal bond should be granted and determining the type of bond and conditions of release required:

    • (a) The nature and circumstances of the offense before the court and the sentence imposed for that offense;
    • (b) The defendant’s length of residence in the community;
    • (c) The defendant’s employment, family ties, character, reputation, and mental condition;
    • (d) The defendant’s past criminal record and record of appearance at court proceedings;
    • (e) Any showing of intimidation or harassment of witnesses or potential witnesses, or likelihood that the defendant will harm or threaten any person having a part in the trial resulting in conviction;
    • (f) Any other criminal charges pending against the defendant and the potential sentences should the defendant be convicted of those charges;
    • (g) The circumstances of, and sentences imposed in, any criminal case in which the defendant has been convicted but execution stayed pending appeal;
    • (h) The likelihood that the defendant will commit additional criminal offenses during the pendency of such defendant’s appeal; and
    • (i) The defendant’s likelihood of success on appeal.

 

Appeals

Can You Reopen a Small Claims Case After Default Judgment or Dismissal?

Posted on by Alderman Law Firm

Probably, depending on how much time has elapsed.

When a defendant or plaintiff in a small claims case fails to follow certain court rules, the court may enter a default judgment against the defendant or dismiss the plaintiff’s case. This commonly happens when one of the parties fails to appear for a court hearing. Whether you are the plaintiff or the defendant, you may file a motion asking the court to set aside the judgment and reopen the case.

Generally, a motion to set aside a default judgment should be filed within a reasonable time, and for most grounds no later than six months after the judgment was entered. After you file the motion, the court will determine whether there is good cause to reopen the case and notify you of its decision. Do not delay in filing this motion. If you wait, the court is less likely to grant your request.

If you are a defendant and you did not learn about the small claims case until after the court entered a judgment, you may still ask the court to reopen the case. This often occurs when the plaintiff claims service was completed but the defendant never actually received the paperwork. In those situations, the motion should explain lack of proper service and how you learned of the judgment. Courts take service problems seriously, but you must act quickly once you become aware of the judgment.

Colorado does not use a specific statewide form like Wisconsin. Instead, you must file a written motion explaining why the judgment should be set aside and include any supporting documents or affidavits showing excusable neglect, mistake, or lack of service.

If you are interested in having an appeals lawyer assist you with reopening your Colorado small claims case, contact the Alderman Law Firm by calling 720-588-3529.