Is there a petition for factual innocence in Colorado?

If you have been wrongfully convicted of a crime in Colorado, there is no one option to file a “petition for factual innocence” like you can in some other states. However, several other pathways exist which can help clear your name.

In this article I explain your options for seeking to get your criminal conviction thrown out in Colorado. Also, you can listen to our informative podcast below.

Direct Appeal

One opportunity to challenge your Colorado criminal conviction is through a direct appeal. You must file this appeal within 49 days of your sentencing.

During a direct appeal, you can only raise issues that appear in the trial record, such as:

• Incorrect rulings on objections,
• Improper jury instructions,
• Insufficient evidence to support the conviction, and
• Constitutional violations that are clear from the record.

In short, the appellate court reviews the lower court’s decision. It is not a new trial.¹

Post-Conviction Relief

If your direct appeal is unsuccessful, or if the deadline has passed, you can file a Rule 35(c) motion. This is often called “post-conviction relief,” and it can be based on such grounds as:

• Newly discovered evidence of your innocence,
• Ineffective assistance of counsel (your lawyer made serious mistakes),
• Constitutional violations that are not visible in the trial record, or
• Evidence that was withheld by the prosecution.

Many successful Rule 35(c) motions stem from new DNA evidence. You can petition for DNA testing if:

• Physical evidence exists that might prove your innocence,
• The evidence was not previously tested, or new technology could provide better results,
• You did not knowingly waive DNA testing in your original case, and
• The testing results would be relevant to your case.²

The deadline for filing a 35(c) motion depends on your case, so do not delay in contacting an attorney.

Special Provisions for Identity Theft

If someone else used your identity, and you were wrongfully convicted as a result, you can petition to prove your innocence. You will need to provide:

• Identification evidence, including your fingerprints and
• Proof that someone else used your identity without permission.³

The Exoneration Act

Once your conviction has been overturned through one of the above methods, you can petition under the Colorado Exoneration Act to receive compensation for your wrongful conviction.

To collect money under the Exoneration Act, you must:

• Have had a felony conviction in a Colorado state court,
• Have served time in prison,
• Have had your conviction overturned or vacated, and
• Prove your actual innocence by “clear and convincing evidence.”

If successful, you can receive:

• $70,000 for each year of imprisonment,
• $50,000 for each year served on death row,
• $25,000 for each year on parole or as a registered sex offender,
• Tuition waivers at state colleges,
• Healthcare coverage, and
• Compensation for child support payments that accrued during incarceration.

You must file your Exoneration Act petition within two years of having your conviction overturned.⁴

Governor’s Pardon

A pardon from Colorado’s Governor offers another path toward clearing your name. Unlike other legal proceedings, a pardon is an act of executive clemency. It is a government-issued forgiveness of your crime, but it does not vacate your conviction.

To apply for a pardon:

• You must have completed your sentence, including parole,
• Seven years must have passed since the completion of your sentence,
• You must have no pending criminal charges or new arrests, and
• You must not be registered as a sex offender.

The application requires:

• A detailed explanation of why you deserve a pardon,
• Evidence of rehabilitation and good character,
• Employment and residence history,
• Letters of recommendation, and
• Certified court records of your conviction.

There is no deadline to apply for a pardon, but the process typically takes six to 12 months once submitted. If granted, a pardon may:

• Restore your civil rights like firearm possession,
• Help with employment and housing, and
• Help with immigration consequences.

Remember that pardons are rarely granted and typically require showing extraordinary circumstances. The Governor has complete discretion in granting or denying pardons.⁵

Getting Legal Help

I have handled many Rule 35(c) cases in Colorado, and in my experience, having an attorney is necessary to maximize your chances of getting your conviction reversed. This because:

• The procedures are complex and have strict deadlines,
• Different types of claims require different evidence,
• Mistakes in earlier proceedings can limit your options later,
• You may need expert witnesses or complex scientific evidence, and
• The standards of proof are demanding.

Judges do not like to admit that they may have made a mistake. Therefore, it takes an experienced criminal defense attorney to convince judges to overturn a conviction that happened in their courtroom.

Additional Resources

If you or a loved one has been wrongly convicted, you can find further information here:

• Colorado Judicial Branch Self-Help: Post-Conviction Relief – Instructions and forms for seeking post-conviction relief.
• National Post-Conviction Project – Advocates for justice reform and assists individuals in post-conviction appeals.
• The Innocence Project – Works to exonerate wrongfully convicted individuals through DNA testing and reforms.
• The Exoneration Project – Provides free legal services to wrongfully convicted individuals seeking exoneration.
• A Just Cause – Supports wrongly accused and convicted individuals, focusing on advocacy and public awareness.

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Legal References