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Name Change Forms for Felons and Juvenile Delinquents Revised by State Judicial

July 12, 2010 by Leave a Comment

State Judicial updated court forms and instructions for use by persons requiring a legal name change to procure identity-related documents after a felony conviction. The forms may also be used by persons adjudicated as a juvenile delinquent for any offense that, had it been committed by an adult, would have been considered a felony. The new forms are already in effect (as of July 1), and practitioners should begin using them immediately.

These forms are available in Adobe Acrobat (PDF) and Microsoft Word formats. They are also available as Word templates; download templates from State Judicial.

  • JDF 385, “Instructions for Filing a Change of Name to Obtain Identity-Related Documents” (revised 7/10)
  • JDF 386, “Petition for Change of Name to Obtain Identity-Related Documents” (revised 7/10)
  • JDF 387, “Order for Change of Name to Obtain Identity-Related Documents” (revised 7/10)

State Judicial is in the process of translating all of its forms into Spanish, but not all forms are available in Spanish yet. Please note that regardless of whether a form is English or Spanish, state statute (§ 13-1-120, C.R.S.) requires all forms to be completed in English.

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State Judicial Revises Court Form Instructions Across Practice Areas

July 12, 2010 by Leave a Comment

State Judicial updated instructions for several different categories of court forms, all with a July 1 effective date.

All instructions are available in Adobe Acrobat (PDF) format.

Adoption

  • JDF 498, “Instructions for Kinship Adoption” (revised 7/10)
  • JDF 499, “Instructions for Custodial Adoption” (revised 7/10)
  • JDF 500, “Instructions for Stepparent Adoption” (revised 7/10)

Agistor’s Liens

  • JDF 131, “Instructions for an Agistor’s Lien” (revised 7/10)

Evictions

  • JDF 100, “Instructions for Forcible Entry and Detainer (FED)/Eviction” (revised 7/10)

Filing Fees

  • JDF 1, “Fees, Surcharges and Costs in Colorado State Courts” (revised 7/10)

Issuing Subpoena Forms

  • JDF 79, “Instructions for Issuing a Subpoena” (revised 7/10)
  • JDF 86, “Instructions for Issuing a Subpoena in Support of an Action Outside the State of Colorado” (revised 7/10)

Legal Name Change

  • JDF 420, “Instructions for Filing a Change of Name (Minor)” (revised 7/10)
  • JDF 432, “Instructions for Filing a Change of Name (Adult)” (revised 7/10)

Money Demand

  • JDF 110, “Instructions for County Court Civil Cases (Money Demand)” (revised 7/10)

Protection Orders

  • JDF 395, “Instructions for Restrained Person Motion to Modify/Dismiss Protection Order” (revised 7/10)
  • JDF 396, “Instruction for Protected Person Motion to Modify/Dismiss Protection Order” (revised 7/10)
  • JDF 400, “Instructions for Obtaining a Civil Protection Order” (revised 7/10

Replevin

  • JDF 115, “Instructions for Replevin” (revised 7/10)
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Tenth Circuit: Opinions, 7/12/10

July 12, 2010 by Leave a Comment

The Tenth Circuit on Monday issued no published opinions and one unpublished opinion.

Unpublished

Turnbow v. Ogden City

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No Colorado Supreme Court Opinions: Week of July 11, 2010

July 12, 2010 by Leave a Comment

There are no new cases to report.

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July 14 Program: Medicaid: Recognizing the Potential Hazards in Your Practice

July 12, 2010 by Leave a Comment

Within the legal profession — and even more so for attorneys who practice in the estate planning, elder law, and probate areas — the potential need for Medicaid in the future for our clients creeps into many cases. Learn more next Wednesday, July 14, when CBA CLE presents elder lawyer Tammy Conover, of the Denver law firm of Steenrod, Schwartz & McMinimee, at Medicaid: Recognizing the Potential Hazards in Your Practice, a lunchtime program that will help practitioners understand the many potential landmines that Medicaid may create in seemingly routine matters.

In the area of Medicaid, it is just as important for attorneys to know what not to do, as many transactions can potentially impact their clients for years to come. Areas to be discussed during the program include:

  • Rules for Medicaid Long Term Care eligibility;
  • Spousal protections; and
  • Prior transfers and eligibility.
This program will be held in CBA CLE’s classroom on July 14 at noon. Live attendees receive lunch with their registration. It is also available via live webcast, MP3 download, and video on-demand. It has been submitted for one general CLE credit.

And don’t forget to mark your calendar for the 2nd Annual Elder Law Retreat (August 26-28, 2010, in Breckenridge)!

(image source: Tammy Conover)

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Colorado Court of Appeals: No Unfair Prejudice by Reference to Use of DNA Database in Sexual Assault Case

July 12, 2010 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Harland on July 8, 2010.

Sexual Assault on a Child—DNA Database—Identification—Evidence—Relevance—Unfair Prejudice.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree burglary, sexual assault on a child, enticement of a child, attempted sexual assault on a child, and two counts of indecent exposure. The judgment was affirmed.

In 2003, J.E. (then age 10) and her younger brother (then age 4) were home alone and decided to hold a garage sale. During the garage sale, an unknown man approached them and asked for something to drink. J.E. went inside the house to get the man an iced tea. The man followed her inside, where he sexually assaulted her. Defendant was arrested after a positive DNA profile match identified him as the perpetrator.

Defendant contended that the district court erred in denying his motion in limine to exclude any reference to the use of DNA databases to identify him as a suspect. The Court of Appeals disagreed. The evidence was relevant to the credibility of the investigator who conducted the DNA analysis because it explained how defendant became a suspect and showed the thoroughness of the police investigation and analysis. Further, the testimony did not create any significant danger of unfair prejudice because (1) the investigator only briefly mentioned the databases; (2) the investigator did not testify as to how defendant’s DNA profile came to be in the second database; and (3) no evidence was presented that defendant had previously engaged in any criminal activity.

The Court also rejected defendant’s contention that there was insufficient evidence to prove he was the perpetrator. Defendant’s DNA was found on J.E.’s undergarments and on tissues located inside J.E.’s home. In addition, J.E. provided the police with a detailed physical description of the assailant, which matched defendant’s description. Therefore, there was sufficient evidence from which a reasonable fact finder could have found beyond a reasonable doubt that defendant was the perpetrator.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 8, 2010, can be found here.

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Colorado Court of Appeals: Weight of Controlled Substance Turns on Total Weight of Compound/Mixture as a Whole

July 12, 2010 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Reeves on July 8, 2010.

Possession—Schedule II Controlled Substance—Evidence—Jury Instructions—Closing Argument.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of one count of possession of more than one gram of a schedule II controlled substance and three counts of possession of one gram or less of a schedule IV controlled substance. He also appealed the sentence imposed on the three counts. The conviction was affirmed.

Defendant was arrested on an unrelated offense and searched. Police found a small baggie in his sock that contained various pills later determined to be schedule II and IV controlled substances. The jury found him guilty of possession of more than one gram of a schedule II controlled substance, along with three other charges.

Defendant contended that the statute for possession of more than one gram of a schedule II controlled substance requires proof that he possessed more than one gram of oxycodone itself. Therefore, he argued, the instruction as to the fifth element violated his constitutional rights, because it allowed the jury to convict him for possessing a tablet weighing more than one gram but that possibly contained only one gram or less of oxycodone.

The Court of Appeals disagreed. Possession of more than one gram of a compound, mixture, or preparation containing a schedule II controlled substance constitutes a class 4 felony, in violation of CRS § 18-18-405. Under subsection (1)(a), the offense level and sentence do not depend on the amount or weight of the substance possessed, with two exceptions: (1) possession of one gram or less of such a compound, mixture, or preparation constitutes a class 6 felony, in violation of subsection (2.3)(a); and (2) possession of at least twenty-five grams or one ounce of such a compound, mixture, or preparation subjects the violator to enhanced sentencing under subsection (3)(a). To conclude otherwise would be illogical because the two exceptions to the offense that otherwise requires sentencing as a class 4 felony would then apply to offenses having different elements than the primary offense from which they are exceptions. Therefore, the language of the instruction did not fail to state the elements of the offense, nor was it constitutionally deficient.

Defendant also argued that the trial court committed plain error when it allowed the prosecutor to state in rebuttal closing argument that although defendant possessed prescription pills, he did not have prescriptions for them. The Court disagreed. Defense counsel argued that the possibility defendant had a prescription for the drugs could raise a reasonable doubt as to his guilt. Therefore, the prosecution was entitled to point to the lack of evidence supporting such a defense.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 8, 2010, can be found here.

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Colorado Court of Appeals: Stepfather Not “Parent” Under Colorado Law and Not Liable for Foster Care Fees

July 12, 2010 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People in the Interest of B.S.M. on July 8, 2010.

Stepparent—Dependency and Neglect—Foster Care Fees—CRS § 19-1-115.

William Gray Shirer (stepfather) appealed from the district court’s judgment against him for $40,738.24 in foster care fees incurred by the Gunnison County Department of Human Services (DHS) on behalf of his former stepson (B.S.M.). The judgment was reversed.

Stepfather was married to B.S.M.’s mother (mother), but is not the biological or adoptive father of B.S.M. When the couple’s marriage was dissolved in Louisiana in 2005, stepfather and mother were granted joint custody of B.S.M. Stepfather later moved to Colorado and did not thereafter live with mother or exercise parenting time with B.S.M. DHS instituted a dependency and neglect proceeding concerning B.S.M. in 2006 as to mother, and placed him in foster care. Stepfather declined to take custody of B.S.M. Following a hearing, the district court ordered that stepfather, as joint custodian of B.S.M. at the time he was adjudicated dependent or neglected, was responsible for B.S.M.’s support and therefore was obligated to reimburse DHS for the foster care fees.

On appeal, stepfather contended that the district court erred in requiring him, as B.S.M.’s former stepfather, to reimburse DHS for foster care fees expended on behalf of B.S.M. The Court of Appeals agreed, holding that the trial court erred in relying on CRS § 14-7-102 as a basis to impose responsibility on stepfather. CRS § 19-1-115 imposes an obligation on a “parent” to reimburse costs expended for residential placement of a child. The term “parent” applies to the child’s natural parent or a parent by adoption. Therefore, stepfather had no obligation to reimburse DHS for foster care fees.

The Court rejected DHS’s argument that stepfather was legally obligated to support B.S.M. because he had been granted joint custody of B.S.M. in the Louisiana dissolution proceedings and had never taken action to modify that order. The Louisiana custody order did not impose any support obligation on stepfather, and stepfather had not voluntarily provided any financial support for the child post-dissolution. Further, stepfather effectively terminated his relationship with B.S.M. and had no legal obligation to continue supporting the child. The judgment was reversed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on July 8, 2010, can be found here.

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Update: State Supremes Adopt Amendment to Colorado Code of Judicial Conduct

July 12, 2010 by Leave a Comment

The Colorado Supreme Court adopted a Code of Judicial Conduct rule change concerning media coverage of court proceedings, effective July 1.

This amended Rule 2, “Media Coverage of Court Proceedings,” is in addition to other amendments adopted by the court earlier this summer.

(image source: State Judicial)

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Update: Rio Grande County Court Judge Michael Trujillo Declares Intent to Retire; Nominating Commission Welcomes Applications to Fill Vacancy

July 12, 2010 by Leave a Comment

Rio Grande County Court Judge Michael H. Trujillo on Friday announced his retirement, effective January 2011, becoming the twelfth Colorado judge since June 1 to announce plans to step down from the bench.

The Twelfth District Judicial Nominating Commission plans to convene at 9:00 a.m. on Monday, August 23, to review applications and recommend nominees to fill the vacancy. The meeting will be held at the Rio Grande County Courthouse, 925 Sixth St., in El Norte. Following the interviews, the Commission will recommend finalists for Gov. Bill Ritter to consider for appointment, and the governor will announce his appointee within 15 days.

County court judges receive a provisional, two-year appointment by the governor, after which they are retained by voter approval every four years. Judges in Rio Grande County Court hear a mixed docket of traffic, misdemeanor, infraction, civil (up to $15,000), felony complaints, and small claims (up to $15,000) cases.

The Rio Grande County Court judgeship is a part-time (55 percent) position, for which the annual salary is $67,686.85. Judge Trujillo’s successor will begin his or her term in January 2011.

Registered electors in Rio Grande County who are high school graduates or have attained its equivalence (via a GED) are eligible to apply for the judgeship. Detailed information about the Twelfth Judicial District and the application are available online. Application packages (consisting of one original application plus seven copies) must be received by the office of Commission ex officio chair, Justice Michael L. Bender, 101 W. Colfax Ave., Eighth Floor, no later than Monday, August 9, at 5:00 p.m.

Judge Trujillo first took an oath of office in 1975, when he was appointed Saguache County Court judge. He later was appointed to the Rio Grande bench in August 1991. Judge Trujillo is in private practice in Monte Vista.

(image source: State Judicial)

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Tenth Circuit: Opinions, 7/9/10

July 12, 2010 by Leave a Comment

The Tenth Circuit on Friday issued two published opinions and three unpublished opinions.

Published

In Muscogee (Creek) Nation v. Oklahoma Tax Commission, the Court affirmed the district court’s decision finding that the searches and seizures conducted by the state highway patrol, under the direction of the Oklahoma Tax Commission, were not unconstitutional. The searches and seizures of unstamped cigarettes were reasonable under the state’s cigarette tax enforcement scheme and were not an affront of Indian sovereignty or a deprivation of due process of law.

In Lorillard Tobacco Co. v. Engida, the Court reversed the district court’s decision which granted attorney’s fees to Respondent. Under the Lanham Act, attorney’s fees may be awarded to the prevailing party; “to be a prevailing party on the basis of a preliminary injunction requires ‘relief on the merits,’” which made the award inappropriate for Respondent. Additionally, under Colo. Rev. Stat. § 13-17-102, attorney’s fees may be awarded where an appeal lacked sufficient justification, being sufficiently frivolous, groundless, or vexatious; Petitioner’s “positions on appeal were more than adequately supported by legal and factual authority.”

Unpublished

Armstrong v. Franklin

Lopez v. Tapia

Jones v. Addison

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Update: Judges Kelly and Simmons Exiting 4th Judicial District Court Bench; Search for Successors Is On

July 12, 2010 by 2 Comments

Members of judicial nominating commissions in Colorado are keeping busy this summer as they seek suitable successors for the near-dozen judges who this summer have declared their intention to retire or not to seek retention in November’s elections. Judge J. Patrick Kelly and Judge Timothy J. Simmons, both of southeastern Colorado’s Fourth Judicial District, announced Friday their plans to step down from the district court bench later this fall.

Judges Kelly and Simmons are the tenth and eleventh Colorado judges, respectively, to announce their retirement since June 1.

Members of the Fourth Judicial District Nominating Commission will meet Friday, August 16, at the El Paso County Judicial Building in Colorado Springs, to review and interview applicants for both vacancies. Following the interviews, the Commission will recommend finalists for Gov. Bill Ritter to consider for appointment, and the governor will announce his appointee within 15 days.

All attorneys licensed to practice in Colorado for at least five years and who are registered electors in the Fourth Judicial District are eligible to apply for the judgeships. Detailed information about the District and the application are available online. Application packages (consisting of one original application plus seven copies) must be received by the office of Commission ex officio chair, Justice Nancy E. Rice, 101 W. Colfax Ave., Eighth Floor, no later than Friday, August 6, at 12:00 p.m. (noon).

The Fourth Judicial District serves the nearly 800,000 residents of El Paso and Teller counties, and its judges hear a mixed docket that includes civil, criminal, domestic relations, juvenile, and probate matters. District court judges receive an annual salary of $128,598, and serve a provisional, two-year term, after which their retention is put to the vote every six years.

Judge Kelly will step down on October 31, after nearly eight years at the Fourth Judicial District. He spent his early, non-legal career in public service, starting with a tour in Vietnam with the U.S. Navy and time spent on the City of Tulsa, Oklahoma, police force. Following his law school graduation in 1984, Judge Kelly worked as a litigation attorney for the City of Colorado Springs, a deputy district attorney for the Fourth Judicial District, county attorney for El Paso County, and clerk and recorder for El Paso County. Gov. Bill Owens appointed him to the Fourth Judicial District bench in 2002.

Judge Simmons will retire effective December 31. Upon his graduation from West Point in 1965, he served in active duty in the U.S. Army in Korea, Germany, and Vietnam. He began his legal career in 1974, spending 24 years in private practice before being tapped for the Fourth Judicial District bench by Gov. Roy Romer in 1998. While in private practice, Judge Simmons served as a part-time municipal court judge for the City of Colorado Springs.

Other Colorado judges announcing their retirement in recent weeks include Colorado Supreme Court Chief Justice Mary Mullarkey, Fifth Judicial District Judge Terry Ruckriegle, Nineteenth Judicial District Judge Gilbert Gutierrez, Denver District Court Judge Stephen Phillips, Jefferson County Judge Charles Hoppin, Douglas County Judge Michele Marker, Montrose County Judge John Mitchel, and Larimer County Court Judge Cynthia Hartman.

Judges up for retention in this November’s election have until Monday, August 2, to file with the Secretary of State their Declaration of Intent to Run for Retention.

(images source: State Judicial)

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