Post-conviction Relief in Colorado Criminal Cases

People convicted of crimes in Colorado can pursue post-conviction relief in an attempt to vacate their verdicts or sentences. Also called 35(c) motions, petitions for post-conviction relief spell out to the court all the ways that the defendant was denied his/her constitutional rights to a fair trial and sentence.

After a conviction, the defendant has a limited statute of limitations to file a post-conviction relief motion in Colorado. The time bar depends on the type of offense he/she was adjudged guilty of.

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

If the court grants a defendant’s 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 in Colorado?
• 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 file another one?
• 9. If I am an immigrant, can post-conviction relief help me stay in the U.S.?

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

1. What is post-conviction relief in Colorado?

Post-conviction relief is when a defendant who has been convicted of a Colorado crime asks the court to vacate the judgment or sentence. Also called 35(c) motions, post-conviction relief gives defendants an opportunity to argue why his/her verdict or sentence was invalid. The judge has full discretion over whether to grant the 35(c) motion.¹

1.1.  Post-conviction relief versus appeals

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

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

2. What are the grounds?

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

1. The defendant was illegally convicted or sentenced;
2. The statutory law under which the defendant was convicted is illegal;
3. The defendant’s 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 sentenced 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 the defendant’s private counsel or public defender, or prosecutorial misconduct.³

3. When can I file?

Anyone who has been convicted of a crime in Colorado may seek post-conviction relief. There are time limits for filing a 35(c) motion depending on the case, though there are some exceptions…

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

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

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

4. How do I file a petition?

The defendant (or his/her Denver criminal defense attorney) needs to fill out the Colorado post-conviction relief form. It is a four-page application, and the defendant may need to attach extra pages explaining why the case requires judicial review.

Finally, the motion needs to be filed with the appropriate court. Note that a defendant must mention all the applicable grounds of relief in just one petition. With rare exception, courts will deny any subsequent 35(c) petitions if the defendant 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 he/she believes 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, even if true, entitle the party to relief; and
• whether the files and records of the case show to the satisfaction of the court that the defendant’s factual allegations are true.

If the court finds that a defendant is entitled to post-conviction relief, the judge has several options. 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 the defendant.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, he/she 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, the defendant 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 with 63 days of the hearing.⁷

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

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

1. Appeals: The defendant 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: Defendants who believe they received an unfair trial 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: Defendants who believe their sentences were too harsh can file a motion for reconsideration. Depending on the strength of the defendant’s 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 the defendant’s petition to appeal. However, this time limit is put on hold if the defendant filed a 35(c) motion as well.¹¹

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

8. If my petition is denied, can I file another one?

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. If I am an immigrant, can post-conviction relief help me stay in the U.S.?

Possibly yes. Legal aliens in Colorado who have been convicted of deportable offenses face removal from the U.S…

However, aliens 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.

Call a Colorado criminal defense attorney…

Call our law firm for legal advice. We offer free consultations.

If you have been convicted of a crime in Colorado, we may be able to get the judgment set aside. Call our Denver criminal defense attorneys for a free consultation on your post-conviction options.

Convicted in Nevada? See our article about post-conviction relief in Nevada.

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