“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 getting convicted by a trial or plea, 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, as the following table shows.

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

The following graphic shows some grounds for post-conviction relief:

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. Post-Conviction Relief vs. Appeals
• 2. What are the grounds?
• 3. Can I file late?
• 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

1. Post-Conviction Relief vs. Appeals

With appeals in Colorado, you ask a higher court – the appellate court – to review your case. Whereas with a 35(c) motion, you seek review from the same district court that handled the criminal case.¹

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

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

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. “Collateral attacks” such as prosecutorial misconduct, judicial misconduct, or ineffective assistance of counsel by your private counsel or public defender.

Ineffective assistance of counsel does not mean your attorney was less than perfect. Instead, you just have to show:

1. Your lawyer acted in a way that was objectively substandard and therefore denied you the constitutional right to a lawyer, and
2. Had a competent attorney represented you, there is a reasonable probability your case would have turned out differently.³

3. Can I file late?

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

• The court that 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 Note that you may also appeal the denial of a 35(c) motion.
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. 35(b) motions for reduction of sentence: 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. 35(a) motion for correction of an illegal sentence: If your sentence was illegal (for example, the court did not have jurisdiction, or it was not authorized by law), you can bring a 35(a) motion asking the court to vacate or lessen it.¹¹
5. 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.¹²

There is nothing to lose and everything to gain by pursuing post-conviction relief, so you are encouraged to pursue every avenue possible.

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

Yes. However, the court will deny it unless it contains new information that was unknowable when the previous 35(c) motion was filed.¹³

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 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.

See our related article, Is there a petition for factual innocence in Colorado?

Legal References: