“Post-Conviction Relief” in Colorado – A Legal Guide

If you are convicted of crimes in Colorado, you can pursue post-conviction relief in an attempt to vacate your verdicts or sentences. Also called 35(c) motions, petitions for post-conviction relief spell out to the court all the ways that you were denied your constitutional rights to a fair trial and sentence.

After a conviction, you have a limited statute of limitations to file a post-conviction relief motion in Colorado. The time bar depends on the type of offense for which you were convicted.

• petty offenses: 6 months
• misdemeanors: 18 months
• felonies (except class 1): 3 years
• class 1 felonies: anytime

If the court grants your 35(c) motion, the judgment may be set aside and/or the sentence may be lessened or lifted altogether.

Below, our Colorado post-conviction relief attorneys discuss the application process and time frames for filing a 35(c) motion in Colorado. Click on a topic to go to that section.

• 1. What is post-conviction relief?
• 2. What are the grounds?
• 3. When can I file?
• 4. How do I file a petition?
• 5. How will the judge decide?
• 6. When will the judge decide?
• 7. What are other forms of post-conviction relief?
• 8. If my petition is denied, can I refile?
• 9. Can post-conviction relief stop deportation?
• Additional resources

People convicted of crimes can file 35(c) motions to argue they were denied due process.

1. What is post-conviction relief?

Post-conviction relief is when you ask the court to vacate your judgment or sentence. Also called 35(c) motions, post-conviction relief gives you an opportunity to argue why your verdict or sentence was invalid. The judge has full discretion over whether to grant the 35(c) motion.¹

Post-conviction relief versus appeals

Note that post-conviction proceedings are different from an appeal of a criminal conviction in Colorado. With appeals, you ask a higher court – the appellate court – to review the case. Whereas with a 35(c) motion, you seek review from the same district court that handled the criminal case.²

For instance, if you are convicted in a trial court (such as Denver Criminal Court), you may seek a direct appeal to the Colorado Court of Appeals and eventually to the Colorado Supreme Court. However, if you are seeking post-conviction relief following a judgment of conviction in Denver Criminal Court, you would stay in Denver Criminal Court.

2. What are the grounds?

Seven common grounds for post-conviction relief under 35(c) include:

1. You were illegally convicted or sentenced;
2. The statutory law under which you were convicted is illegal;
3. Your conduct was legal;
4. The court did not have authority (“jurisdiction”) over the case to make an adjudication;
5. There is new evidence of “material facts” that could not have been reasonably discovered prior to the conviction;
6. The sentence has already been fully served, or there has been an unlawful revocation of parole, probation, and/or conditional release; and/or
7. Other grounds (called “collateral attacks“) such as ineffective assistance of counsel by your private counsel or public defender, or prosecutorial misconduct.³

3. When can I file?

Below is the schedule of time frames for bringing a 35(c) motion in Colorado:

If the time limit has passed, you may still be able to bring a 35(c) motion if any of the following excuses is true:

• The court which convicted you did not have jurisdiction over you or your case; and/or
• You missed the filing deadline because you were adjudicated incompetent or were in institutionalized treatment for the mentally ill; and/or
• The circumstances that caused you to miss the filing deadline amounted to “justifiable excuse or excusable neglect.”⁴

4. How do I file a petition?

You (or your Denver criminal defense attorney) must fill out the Colorado post-conviction relief form. It is a four-page application, and you may need to attach extra pages explaining why your case requires judicial review.

Finally, the motion needs to be filed with the appropriate court. Note that you must mention all the applicable grounds of relief in just one petition. With rare exceptions, courts will deny any subsequent 35(c) petitions if you could have presented the grounds previously.⁵

5. How will the judge decide?

There is no way to be sure how a judge will rule on a 35(c) motion. The judge in the case has the discretion to grant a 35(c) petition if they believe doing so serves the “interests of justice.”  Some of the factors the judge may consider include:

• whether the motion is timely;
• whether the motion states adequate factual or legal grounds for relief;
• whether the motion states legal grounds for relief that are meritorious;
• whether the motion states factual grounds that, if true, entitle you to relief; and
• whether the files and records of the case show to the satisfaction of the court that your factual allegations are true.

The judge has several options if the court finds that you are entitled to post-conviction relief. Depending on the case, the judge may vacate the judgment and/or grant a new trial. Or the judge could impose a new sentence and/or discharge you.⁶

There are strict time limits to file for post-conviction relief (except for class 1 felonies).

6. When will the judge decide?

If the judge decides to deny the 35(c) motion without a hearing, they will issue a written denial within a 63-day time period. If the judge wants to hold a hearing before deciding on the motion, the entire process takes longer.

First, the judge will order the prosecution to file a written response within 35 days. Next, you may file a written reply to the prosecution within 21 days.

Then, the court will hold a hearing where both sides may present arguments and evidence. Finally, the court will usually make a final decision within 63 days of the hearing.⁷

7. What are other forms of post-conviction relief?

Other post-conviction options you may pursue in addition to or instead of 35(c) motions include:

1. Appeals: You may appeal a guilty verdict and/or sentencing to a higher court. No new trial is held; instead, the higher court reviews whether the lower court made any mistakes. The deadline to appeal is 35 days after the judgment.⁸
2. Motions for a new trial: If you believe you received an unfair trial, you may file a motion for a new trial. If the judge grants it, the verdict will be set aside and a new trial will be scheduled. The deadline to file 14 days after the verdict, unless new evidence surfaces.⁹
3. Motions for reconsideration: If you believe your sentences were too harsh, you can file a motion for reconsideration. Depending on the strength of your arguments, the judge may impose laxer penalties. The deadline to file is 126 days after the sentencing.¹⁰
4. Federal writ of habeas corpus: This is similar to a 35(c) motion, but in federal court. The deadline to file is one year and 90 days after the Colorado Supreme Court denies your petition to appeal. However, this time limit is put on hold if you filed a 35(c) motion as well.¹¹

Note that you may also appeal the denial of a 35(c) motion.

8. If my petition is denied, can I refile?

Yes, but the court will deny it unless it contains new information that was unknowable when the previous 35(c) motion was filed.¹²

9. Can post-conviction relief stop deportation?

Possibly yes. Legal aliens convicted of deportable offenses might be able to stay in the U.S. if they can get their convictions vacated. Or they may be able to stay if they get their sentences substantially reduced so the conviction no longer qualifies as deportable. Learn about the criminal defense of immigrants in Colorado.

Additional Reading:

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

• Colorado Judicial Branch Self-Help: Post-Conviction Relief
• National Post-Conviction Project
• The Innocence Project
• The Exoneration Project
• A Just Cause

Legal References: