June 19, 2019

Archives for July 10, 2013

Many Probate JDF Forms Amended by Colorado Supreme Court and State Judicial

The Colorado State Judicial Branch issued several new and revised JDF forms in the Probate category in June and July, after the Colorado Supreme Court issued Rule Change 2013(08) on June 19, 2013.

Most of the instruction forms were changed, as well as forms regarding guardianships for adults and minors, the Conservator’s Report, and the small estate affidavit. Click the links below to view and download the forms.

PROBATE FORMS

  • JDF 782 – Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado From Sending State (revised 7/13)
  • JDF 786 – Instructions to File a Petition to Transfer Adult Guardianship and/or Conservatorship from Colorado to Receiving State (revised 7/13)
  • JDF 820 – Instructions for Appointment of Guardian by Will or Other Signed Writing (revised 7/13)
  • JDF 823 – Instructions for Appointment of Guardian – Minor (revised 7/13)
  • JDF 840 – Instructions for Appointment of Guardian – Adult (revised 7/13)
  • JDF 860 – Instructions for Appointment of Conservator – Minor (revised 7/13)
  • JDF 875 – Instructions for Appointment of Conservator – Adult (revised 7/13)
  • JDF 887 – Instructions to File a Petition to Terminate Conservatorship (revised 7/13)
  • JDF 906 – Instructions for Probate With a Will (revised 7/13)
  • JDF 907 – Instructions for Probate Without a Will (revised 7/13)
  • JDF 957 – Instructions for Closing an Estate Formally (revised 7/13)
  • JDF 958 – Instructions for Closing a Small Estate Informally (revised 7/13)
  • JDF 959 – Instructions for Closing an Estate Informally (revised 7/13)
  • JDF 989 – Instructions to Re-Open an Estate (revised 7/13)
  • JDF 998 – Instructions for Completing Affidavit for Collection of Personal Property (revised 6/13)
  • JDF 827 – Order Appointing Guardian for Minor (revised 6/13)
  • JDF 828 – Order Appointing Temporary Guardian for Minor (revised 6/13)
  • JDF 829 – Order Appointing Emergency Guardian for Minor (revised 6/13)
  • JDF 830 – Letters of Guardianship – Minor (revised 6/13)
  • JDF 843 – Order Appointing Emergency Guardian for Adult (revised 6/13)
  • JDF 846 – Order Appointing Temporary Substitute Guardian – Adult (revised 6/13)
  • JDF 848 – Order Appointing Guardian for Adult (revised 6/13)
  • JDF 885 – Conservator’s Report (revised 6/13)
  • JDF 999 – Collection of Personal Property by Affidavit (revised 6/13)

For all of State Judicial’s JDF forms, click here.

Colorado Supreme Court: No Confrontation Clause Violation when Supervisor Testified As to Lab Testing

The Colorado Supreme Court issued its opinion in Marshall v. People on Monday, July 1, 2013.

Sixth Amendment—Confrontation Clause—Testimonial Statements—Laboratory Supervisor.

Petitioner was charged with driving under the influence of drugs, careless driving, and possession of drug paraphernalia after lab results revealed she had methamphetamine in her system when she caused a car accident. At trial, the People called the supervisor of the Colorado Department of Health toxicology lab to testify about petitioner’s level of intoxication. During her testimony, the People sought to admit the lab result showing that petitioner had methamphetamine in her urine. Although the lab supervisor did not conduct the urinalysis test herself, she supervised the testing process, reviewed all the data generated by the test, made the determination that the data accurately determined that petitioner had methamphetamine present in her urine, and certified the test results. Over petitioner’s objection, the trial court admitted the lab report without the testimony of the lab technician who actually performed the test.

The Supreme Court affirmed the district court’s ruling regarding the admission of the lab report. Admission of the lab report did not violate the Confrontation Clause because the lab supervisor managed the testing process, reviewed all data generated, determined that the data accurately showed that petitioner had methamphetamine present in her urine, and certified the results. She therefore did not provide “surrogate” testimony of the sort found to be problematic in Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705 (2011).

Admission of the lab report also did not violate CRS § 16-3-309(5), which provides that, on a defendant’s timely request, the lab employee who “accomplished the requested analysis” must be made available to testify at trial. According to the plain meaning of “accomplish,” the lab supervisor accomplished the analysis because she performed the final analysis of the data required to certify the results as accurate. Therefore, the lab supervisor’s testimony satisfied the statutory provision.

The trial court also denied petitioner’s motion for judgment of acquittal on the paraphernalia possession charge. Acting in its appellate capacity, the district court upheld the trial court’s decision. Because the People conceded that there was no evidence presented that petitioner possessed drug paraphernalia, the Court held that the county court erroneously denied petitioner’s motion for judgment of acquittal on this charge, and reversed the district court’s judgment in this regard.

Summary and full case available here.

Colorado Supreme Court: Specific Water Exchanges Legally Indistinguishable from Reusable Transmountain Effluent

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of the City & County of Denver on Monday, July 1, 2013.

Water Law—Transmountain Lawn Irrigation Return Flows—Appropriative Rights of Exchange—Injury.

The Supreme Court held that the City of Denver may use properly quantified as transmountain lawn irrigation return flows (LIRFs) as a substitute supply of water for its civil action (C.A.) 3635 exchanges. Properly quantified LIRFs are legally indistinguishable from reusable transmountain effluent. The Court also held that junior appropriators, such as the City of Englewood, cannot claim injury solely on account of Denver’s proper operation of the C.A. 3635 exchanges. Thus, the water court correctly decided Denver’s Motion for Determination of a Question of Law under CRCP 56(h).

Summary and full case available here.

Colorado Supreme Court: Summary Judgment Appropriate as a Matter of Law in Transaction Broker Negligence Case

The Colorado Supreme Court issued its opinion in Gibbons v. Ludlow on Monday, July 1, 2013.

Professional Negligence—Transactional Malpractice.

The Supreme Court held that to sustain a professional negligence claim against a transactional real estate broker, a plaintiff must show that, but for the alleged negligent acts of the broker, he or she either: (1) would have been able to obtain a better deal in the underlying transaction; or (2) would have been better off by walking away from the underlying transaction. The Court found that here, the sellers failed to present evidence of the fact of damages; they did not establish beyond mere possibility or speculation that they suffered a financial loss as a result of the transactional brokers’ professional negligence. Because no injury could be shown, the trial court properly granted summary judgment as a matter of law. Accordingly, the Court reversed the judgment of the court of appeals with respect to the summary judgment on the professional malpractice claim and reinstated the judgment of the trial court, including the attorney fees and costs associated with the claims.

Summary and full case available here.

Tenth Circuit: Tax Evasion Sentence Affirmed in Violation of the Omnibus Clause of 26 U.S.C. § 7212(a) Case

The Tenth Circuit Court of Appeals published its opinion in United States v. Neilson on Tuesday, July 2, 2013.

Defendant Kenneth Neilson appealed the 30 month sentence he received for interfering with the administration of the internal revenue laws in violation of the omnibus clause of 26 U.S.C. § 7212(a). Violations of the omnibus clause may be sentenced under either U.S.S.G. § 2T1.1, the guideline for “Tax Evasion; Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or False Returns, Statements, or Other Documents,” or U.S.S.G. § 2J1.2, the guideline for “Obstruction of Justice,” and Neilson contended the district court erred in calculating his sentence under the former guideline rather than the latter.

After reviewing the defendant’s stipulated conduct, the Tenth Circuit agreed that the district court correctly sentenced Neilson under § 2T1.1 as his conduct overall had more to do with tax evasion. His conduct did not have to meet every element of tax evasion, it just had to be akin to it. The court affirmed Neilson’s sentence.

Tenth Circuit: Double Jeopardy Doctrine Prohibits Multiple Punishments Unauthorized by Legislatures

The Tenth Circuit Court of Appeals published its opinion in Wood v. Milyard on Monday, July 8, 2013.

Patrick Wood was convicted of first degree felony murder, second degree murder, and several lesser charges. After 25 years of unsuccessful appeals and habeas petitions, the Tenth Circuit rejected Mr. Wood’s federal habeas petition as untimely, noting on its own motion that the statute of limitations barred his way. The Supreme Court reversed after finding that the State of Colorado had waived any statute of limitations defense. In the instant case, the Tenth Circuit considered two claims: one alleging that Wood’s double jeopardy rights were violated by his simultaneous convictions for first and second degree murder in a case involving the death of a single victim, the other alleging that Mr. Wood’s waiver of his Sixth Amendment right to a jury trial was not voluntary, knowing, and intelligent because of his attorney’s bad advice.

The State objected to Wood bringing these claims because he failed to raise them in state court. The Tenth Circuit held that Colo. R. Crim. P. 35 did not bar the claims because, unlike now, the version in effect at the time of Wood’s conviction did not require they be brought as part of a direct appeal.

The court found that Colorado does not allow multiple murder convictions for the killing of one person. Because double jeopardy doctrine prohibits multiple punishments unauthorized by legislatures, one of Wood’s convictions had to be overturned. The court remanded to the district court with instructions to grant the writ of habeas corpus conditionally. It instructed the district court to vacate the first degree murder conviction Wood challenged in federal court only if no state court vacated either of his two murder convictions within a reasonable time.

Wood waived his right to a jury trial and contended his written waiver was not knowing, voluntary, and intelligent because his attorney failed to explain its implications to him. He sought an evidentiary hearing to prove this. Because Wood failed to develop diligently the factual basis for his Sixth Amendment claim in state court proceedings, the court denied the request for an evidentiary hearing.

Tenth Circuit: Unpublished Opinions, 7/5/13

On Friday, July 5, 2013, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.

Lee v. Cozza-Rhodes

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Tenth Circuit: Unpublished Opinions, 7/3/13

On Wednesday, July 3, 2013, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

United States v. Guardado-Cordova

Gilkey v. Protection One Alarm Monitor

United States v. Ramirez

United States v. Velasquez-Lopez

Ali v. Taylor

United States v. Rodriguez

Gilkey v. ADT Security Services

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.