June 26, 2019

Colorado Court of Appeals: Crim. P. 35 Requires Court to Allow Public Defender’s Office to Respond to Motion Requesting Counsel

The Colorado Court of Appeals issued its opinion in People v. Higgins on Thursday, May 4, 2017.

Crim. P. 35(c)—Notice—Public Defender.

Higgins pleaded guilty to felony menacing, and the court sentenced him to 18 months in prison. Higgins thereafter filed a Crim. P. 35(c) motion and requested counsel to represent him on his motion. The district court sent a copy of Higgins’s motion to the prosecution and, after receiving the prosecution’s response, denied the motion without a hearing and without hearing from the public defender’s office.

On appeal, Higgins contended that the district court erred by departing from the procedure outlined in Crim. P. 35(c)(3)(IV) and (V) and that the court’s error required reversal. The court has the authority to summarily deny a Crim. P. 35(c) motion without a hearing if the motion, files, and the record clearly show the defendant is not entitled to relief. However, if the court does not summarily deny the motion, the court is required to send a copy of the motion to the prosecutor and, if defendant has requested counsel, to the public defender’s office, who are given an opportunity to respond to the motion. Here, the court failed to send a copy of the motion to the public defender’s office. Thus, the court erred by departing from the Crim. P. 35(c)(3)(IV) and (V) mandatory procedure. The error was not harmless because it affected the fairness of the proceedings.

The order was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

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