Postconviction Remedies under Rule 35 of the Colorado Rules of Criminal Procedure

After an individual pleads guilty to an offense in Colorado, or is convicted at trial, the Court will then impose a sentence for that individual in that case. Depending on whether you accepted a plea or were found guilty at trial, different appellate remedies are available for an individual. However, Rule 35 can provide relief to someone regardless of whether they accepted a guilty plea or were found guilty at trial. Sometimes that sentence is just a fine, other times it requires some sort of supervision – perhaps probation, perhaps confinement within the Department of Corrections.

After the sentence is imposed, Rule 35 of the Colorado Rule of Criminal Procedure may become relevant in your matter. Rule 35, Postconviction remedies, affords a defendant the right to have the sentence, or even the conviction itself, reviewed.

Rule 35(a), entitled “Correction of Illegal Sentence” permits a Court to “correct” a sentence that was “not authorized by law or that was imposed without jurisdiction.” This section (a) allows the Court to do this on its own initiative. This raises the question – when is a sentence “not authorized by law” or “imposed without jurisdiction”? The knowledgeable criminal defense trial attorneys at the Law Office of Jacob E. Martinez can help determine whether these terms may be applicable to your case. A simple example of when a sentence may be not authorized by law is if a court sentences a person to a second DUI when, in fact, it was only their first DUI. A second DUI requires a 10-day sentence be satisfied (for more information click here); however, a first DUI has no such requirement. Thus, if a court imposed 10 days, believing the law required it, Rule 35 could provide an avenue for relief.

Rule 35(b), Reduction of Sentence, is a frequently used tool for criminal defense attorneys. This section allows a defendant to file a motion for reduction of sentence – a request that their sentence be lessened. Critically important, this motion may only be reviewed by the court if it is filed in a procedurally proper way. There are three procedurally different time frames in which you must file the motion. Once again, the attorneys that the Law Office of Jacob E. Martinez can help identify whether any of these periods of time may be applicable to your case.

Rule 35(c), Other Remedies, provides six (6) different grounds upon which someone may request postconviction review of their matter and those grounds are as follows:

  1. That the conviction was obtained or sentence imposed in violation of the Constitution or laws of the United States or the constitution or laws of this state;
  2. That the applicant was convicted under a statute that is in violation of the Constitution of the United States or the constitution of this state, or that the conduct for which the applicant was prosecuted is constitutionally protected;
  3. That the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;
  4. That there exists evidence of material facts, not theretofore presented and heard, which , by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice;
  5. Any grounds otherwise properly the basis for collateral attack upon a criminal judgment; or
  6. That the sentence imposed has been fully served or that there has been unlawful revocation of parole, probation, or conditional release.

All of the above scenarios include complex legal terms and reference intricate laws and programs. Clearly, it is imperative that you have an attorney who understands the different steps that must be taken in order to take advantage of the above routes to reconsideration.

This rule can be a vital tool in the tool belt of a defense attorney. It can correct illegal sentences but it can also reduce ‘legal’ sentences as it asks the courts to reconsider or lessen the sentence.

Contact that Law Office of Jacob E. Martinez in order to set up a free consultation with one of our criminal defense attorneys.