May 27, 2018

Archives for February 5, 2014

Colorado Supreme Court: Party Seeking to Modify Admission of Liability Has Burden of Proof that Modification Should Be Made

The Colorado Supreme Court issued its opinion in City of Brighton v. Rodriguez on Monday, February 3, 2014.

Workers’ Compensation—Liability—CRS § 8-41-301(1)(c)—Settlement and Hearing Procedures—CRS § 8-43-201(1).

In this workers’ compensation case, the Supreme Court held that an “unexplained fall” satisfies the “arising out of” employment requirement in CRS § 8-41-301(1)(c), if the fall would not have occurred but for the fact that the conditions and obligations of employment placed the employee in the position where he or she was injured. Additionally, the Court held that when a party seeks to modify an issue determined by a general or final admission, a summary order, or a full order, per CRS § 8-43-201(1), that party has the burden of proving by a preponderance of the evidence that a modification is warranted. Accordingly, the Court affirmed the court of appeals’ holding, but for different reasons.

Summary and full case available here.

Colorado Supreme Court: Defendant’s Challenge of Waiver of Right to Jury Trial in Post-Conviction Proceeding

The Colorado Supreme Court issued its opinion in People v. Walker on Monday, February 3, 2014.

Right to Jury Trial Waiver—Crim.P. 23(a)(5)(II).

In this criminal case, the Supreme Court considered whether defendant Marshall Walker validly waived his right to a jury trial following a trial court advisement that failed to substantially comply with Crim.P. 23(a)(5)(II). The Court held that a defendant may not litigate the validity of such a waiver on direct appeal but must do so in a post-conviction proceeding. The Court further held that, when evaluating a defendant’s waiver of the right to a jury trial, the post-conviction court must determine whether the defendant waived that right knowingly, voluntarily, and intelligently. Finally, the Court affirmed Walker’s indeterminate sentences.

Because the court of appeals should not have reviewed Walker’s challenge regarding the validity of his waiver of the right to a jury trial, the Court vacated its ruling regarding Walker’s challenge to the validity of his jury trial waiver. The Court otherwise upheld the court of appeals’ judgment of conviction. Walker may challenge the validity of his waiver (and its effect on his sentences) in a post-conviction proceeding.

Summary and full case available here.

Colorado Supreme Court: Statute Regarding Presentence Confinement Credit for Felonies Does Not Apply to Probation

The Colorado Supreme Court issued its opinion in People v. Smith on Monday, February 3, 2014.

Felony Probation Sentence—Presentence Confinement Credit.

The Supreme Court held that the statutory provision governing presentence confinement credit for a felony offense, CRS § 18-1.3-405, does not apply to probation, and therefore does not apply to the jail component of a probation sentence. Accordingly, when sentencing an offender to probation with a jail component, the trial court has discretion whether to credit an offender for presentence confinement in full, in part, or not at all. The court of appeals’ decision was reversed and the case was remanded.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 2/4/14

On Tuesday, February 4, 2014, the Tenth Circuit Court of Appeals issued no published opinions and eight unpublished opinions.

United States v. Escobar

Fite v. Bayer Corp.

McWilliams v. King

United States v. Mendez-Montoya

Pinson v. Berkebile

Ali v. Franklin

Stine v. Berkebile

Ballad v. Holder

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 14-1036: Classifying Certain DUI Offenses as Felonies

On January 8, 2014, Rep. Mark Waller introduced HB 14-1036 – Concerning Drunk Driving Offenses. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, a DUI, DUI per se, or DWAI is a misdemeanor offense. The bill makes such an offense a class 4 felony if:

  • The violation occurred not more than seven years after the first of two prior convictions for DWAI, DUI, or DUI per se; vehicular homicide; or vehicular assault; or;
  • The violation occurred after three prior convictions for DWAI, DUI, or DUI per se; vehicular homicide; or vehicular assault.

The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. The bill makes conforming amendments. The bill is assigned to the Judiciary and Appropriations Committees.

HB 14-1044: Adding Penalties for Parolees who Tamper With Their Electronic Monitors

On January 8, 2014, Rep. Tim Dore introduced HB 14-1044 – Concerning Consequences for a Parolee who Tampers with an Electronic Monitoring Device that the Parolee is Required to Wear as a Condition of ParoleThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A parolee who violates the conditions of his or her parole by removing or tampering with an electronic monitoring device that the parolee is required to wear as a condition of his or her parole is subject to an immediate warrantless arrest. If a community parole officer has probable cause to believe that a parolee who is under the supervision of the parole officer has removed or tampered with an electronic monitoring device that the parolee is required to wear as a condition of his or her parole, the parole officer shall either:

  • Immediately make a warrantless arrest of the parolee; or
  • Not later than 12 hours after acquiring such probable cause, notify a law enforcement agency with jurisdiction over the parolee’s last-known address that the parolee is subject to an immediate warrantless arrest.

A parole officer shall file a complaint seeking revocation of the parole of any parolee who has removed or tampered with an electronic monitoring device.

If the state board of parole determines that a parolee has violated the conditions of his or her parole by removing or tampering with an electronic monitoring device, the board shall revoke the parolee’s parole and reinstate the remainder of the parolee’s sentence to the custody of the department of corrections. The bill is assigned to the Judiciary Committee.

HB 14-1042: Requiring Certain Relinquishment Paperwork to be Provided to Birth Parents

On January 8, 2014, Rep. Lori Saine and Sen. Lois Tochtrop introduced HB 14-1042 – Concerning Access by Birth Parents to Records Relating to the Relinquishment of Parental RightsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

This bill requires that a custodian of records relating to the relinquishment of a child provide the following records to the child’s birth parent at the time of relinquishment or at the time the document is created:

  • The original birth certificate;
  • The petition to relinquish;
  • The final order of relinquishment or other relinquishment documents;
  • The affidavit of counseling;
  • The temporary waiver of custody; and
  • The expedited relinquishment documents, if applicable.

If relinquishment records were not provided to a birth parent at the time of the relinquishment of the child or at the time the document was created and the subsequent termination of the parent-child legal relationship was not the result of a dependency and neglect action, then upon written request of the birth parent and proof of identification, the custodian of the records shall provide access to and copies of such records to the birth parent, including all documents that the birth parent signed or on which the birth parent is named. The bill is assigned to the Public Health Care & Human Services Committee.

Since this summary, the bill was amended in the House Committee on Public Health Care & Human Services and was sent to the Finance Committee.