People v. Albaugh, 96CA1128
| Citation | 949 P.2d 115 |
| Decision Date | 10 July 1997 |
| Docket Number | No. 96CA1128,96CA1128 |
| Parties | 21 Colorado Journal 999 PEOPLE of the State of Colorado, Plaintiff-Appellant, v. James M. ALBAUGH, Defendant-Appellee. . V |
| Court | Court of Appeals of Colorado |
John W. Suthers, District Attorney, Robert B. Harward, Deputy District Attorney, Colorado Springs, for Plaintiff-Appellant.
David F. Vela, Colorado State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, for Defendant-Appellee.
Opinion by Judge METZGER.
The People appeal the trial court order determining that it did not have jurisdiction to reconsider its prior order which dismissed all charges against defendant, James M. Albaugh. We vacate the order and remand with directions.
While defendant was on intensive supervision parole through the Department of Corrections, he was charged with escape, by direct information filed in the district court.
The information alleged that defendant had violated both § 18-8-208, C.R.S. (1986 Repl.Vol. 8B), proscribing escape from custody, and § 17-27.5-104, C.R.S. (1996 Cum.Supp.), which provides that an inmate who has been granted intensive supervision probation/parole may be found guilty of escape if he or she fails to remain within the extended limits of confinement.
A preliminary hearing was scheduled, but before the hearing date, the prosecution filed a statement of "Stipulated Facts and Evidence" for use "in lieu of a hearing" and requested that the trial court rule, as a matter of law, whether there was probable cause to support the allegation that defendant had escaped from custody. In response to the prosecution's "stipulation," defendant moved to dismiss the information, arguing that intensive supervision does not constitute custody for purposes of § 18-8-208. Therefore, he asserted, he could not have committed an escape.
On the day the preliminary hearing was scheduled to occur, the trial court heard argument on defendant's motion to dismiss. The prosecutor did not discuss § 17-27.5-104, which clearly established that an escape could occur in the context of intensive supervision probation/parole. The trial court, also apparently unaware of the requirements of § 17-27.5-104, dismissed the escape charge based on its belief that intensive supervision probation/parole did not constitute custody.
Thirty-two days later, the prosecution field a "Motion to Reconsider Dismissal and to Reinstate Charges" in the trial court, arguing that the dismissal constituted error in light of the requirements of § 17-27.5-104.
At a hearing on this motion, the trial court acknowledged that, based on § 17-27.5-104, dismissal of the escape charge had been erroneous. However, it also concluded that, because the prosecution's motion was filed untimely, it was without jurisdiction to correct its error. The notice of appeal was filed within 45 days of entry of the order of dismissal.
The prosecution contends that the trial court erred in determining that it lacked jurisdiction to reconsider the order dismissing the escape charge. We agree.
An order dismissing an information is a final judgment and, therefore, is appealable. See People v. Cochran, 176 Colo. 364, 490 P.2d 684 (1971). Because the ruling at issue here concerned a question of law--i.e., whether a person who exceeds the boundaries imposed through intensive supervision probation/parole commits an escape--it is subject to appeal by the prosecution. See § 16-12-102(l ), C.R.S. (1996 Cum.Supp.).
Under C.A.R. 4(b)(2), appeals by the People must be filed within 45 days after the entry of an appealable trial court judgment or order. The prosecution must appeal such a judgment within the period for which appeals are permitted or it will be deemed to have waived the right to contest the judgment. See Cavanaugh v. State, 644 P.2d 1 (Colo.1982) (); People v. Janke, 852 P.2d 1271 (Colo.App.1992) ().
Here, the prosecution filed the motion for reconsideration within 45 days after entry of the judgment of dismissal. Thus, at the time the motion was filed, the trial court retained jurisdiction over the case.
Contrary to defendant's argument, the record shows that the trial court granted defendant's motion to dismiss without conducting a preliminary hearing. Therefore, Crim. P. 7(h)(4); Abbott v. County Court, 886 P.2d 730 (Colo.1994); People ex rel. Russel v. District Court, 186 Colo. 136, 526 P.2d 289 (1974); and other authorities governing appeals and motions following preliminary hearings are inapposite.
The prosecution also contends the trial court erred in concluding that it was unable to address the prosecution's motion because it had not been filed timely. Further proceedings are necessary to resolve this question.
At the hearing on the prosecution's motion for reconsideration, the trial court and defense counsel discussed a rule that they seemed to believe provided the relief the prosecution was seeking. However, according to the record, both the court and defense counsel assumed that a motion filed pursuant to that unspecified rule had to have been filed within 15 days after the entry of judgment in order for the court to have jurisdiction to consider the motion. But, the record fails to show precisely which rule the court and counsel were relying on in their discussion. And, while the record does show that the prosecutor was present during the proceedings, he seemed to be unaware of which rule was being discussed and did not participate in any meaningful way. The trial court denied the prosecution's motion, finding that it had been filed outside the 15-day period required under the unspecified rule.
No statute or rule of criminal procedure specifically provides for reconsideration of a ruling or order such as the order at issue here. See Stone v. People, 895 P.2d 1154 (Colo.App.1995); People v. Janke, supra. See also United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964) (); cf. United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976).
C.R.C.P. 59(a) requires that motions for the amendment of findings and judgments must be made within 15 days after entry of judgment. Such relief is available to correct legal errors made during the proceedings. C.R.C.P. 59(d)(6); see also Stone v. People, supra (); cf. Peoples Natural Gas Division v. Public Utilities Commission, 626 P.2d 159 (Colo.1981) ().
While this rule is generally applicable in civil proceedings, it may be used in criminal proceedings as well. See Crim. P. 57(b) (); see also People v. Janke, supra.
As defendant correctly notes, failure to file a motion within the time prescribed by C.R.C.P 59(a), or as extended by any orders of the trial court pursuant to motions timely filed, deprives the trial court of jurisdiction to take action under C.R.C.P. 59. See Stone v. People, supra.
Nevertheless, even after the time to file a C.R.C.P. 59 motion has expired, the trial court retains jurisdiction over the case. For example, a trial court may provide relief from a judgment under C.R.C.P. 60(b) under certain circumstances, even after it has lost jurisdiction under C.R.C.P. 59. See Canton Oil Corp. v. District Court, 731 P.2d 687 (Colo.1987).
C.R.C.P. 60(b) permits a trial court to reconsider and, if necessary, to change a prior ruling when a significant new matter of fact or law arises that is extrinsic to it because it was not previously presented to the court. See State Farm Mutual Automobile Insurance Co. v. McMillan, 925 P.2d 785 (Colo.1996).
Under C.R.C.P. 60(b)(5), a trial court may set aside a judgment for ...
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In re Marriage of McSoud
...in response to a timely filed motion for extension of time, deprives the court of jurisdiction to act under C.R.C.P. 59. People v. Albaugh, 949 P.2d 115 (Colo.App.1997). Here, the permanent orders at issue were entered on February 12, 2004. On March 30, mother filed a motion for a new trial......
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People v. Martinez
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...a division of this court has recognized a motion to reconsider may be filed under C.R.C.P. 59 in criminal proceedings, People v. Albaugh, 949 P.2d 115, 117 (Colo.App.1997), we decline to follow it. See Ochoa v. Vered, 186 P.3d 107, 112-13 (Colo.App.2008) (one division of the court of appeal......
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People v. Taylor, No. 01CA0716.
...that used the definitions of § 17-27.5-104. Defendant did not object to its use. Such use was proper. See generally People v. Albaugh, 949 P.2d 115 (Colo.App.1997). Further, the jury was properly instructed on the elements of § 18-8-208, one of which is that a defendant be in "custody or co......