Colo. R. Crim. P. 45

As amended through Rule Change 2024(9), effective May 2, 2024

Rule 45 - Time

(a) Computation. In computing any period of time prescribed or allowed by these rules, the day of the event from which the designated period of time begins to run is not to be included. Thereafter, every day shall be counted including holidays, Saturdays, and Sundays. The last day of the period so computed is to be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. As used in these Rules, "legal holiday" includes the first day of January, observed as New Year's Day; the third Monday in January, observed as Martin Luther King Day; the third Monday in February, observed as Washington-Lincoln Day; the last Monday in May, observed as Memorial Day; the fourth day of July, observed as Independence Day; the first Monday in September, observed as Labor Day; the second Monday in October, observed as Columbus Day; the 11th day of November, observed as Veteran's Day; the fourth Thursday in November, observed as Thanksgiving Day; the twenty-fifth day of December, observed as Christmas Day, and any other day except Saturday or Sunday when the court is closed.

(b) Enlargement. When an act is required or allowed to be performed at or within a specified time, the court for cause shown may at any time in its discretion:

(1) With or without motion or notice, order the period enlarged if application therefor is made before expiration of the period originally prescribed or of that period as extended by a previous order; or,

(2) Upon motion, permit the act to be done after expiration of the specified period if the failure to act on time was the result of excusable neglect.

(c) to (e) Repealed.

(f) Inmate Filings. A document filed by an inmate confined in an institution is timely filed with the court if deposited in the institution's internal mailing system on or before the last day for fling. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule.

Colo. R. Crim. P. 45

Source: Entire rule amended and adopted May 17, 2001, effective 7/1/2001; a and e amended and Comment added May 7, 2009, effective 7/1/2009; a amended, c, d, and e repealed, and comment deleted and adopted December 14, 2011, effective 7/1/2012; comment added and adopted June 21, 2012, effective 7/1/2012.

Comment

After the particular effective date, time computation in most situations is intended to incorporate the Rule of Seven. Under the Rule of Seven, a day is a day, and because calendars are divided into 7-day week intervals, groupings of days are in 7-day or multiples of 7-day intervals. Groupings of less than 7 days have been left as they were because such small numbers do not interfere with the underlying concept. Details of the Rule of Seven reform are set forth in an article by Richard P. Holme, 41 Colo. Lawyer, Vol. 1, P 33 (January 2012).

Time computation is sometimes "forward," meaning starting the count at a particular stated event such as date of filing and counting forward to the deadline date. Counting "backward" means counting backward from the event to reach the deadline date such as a stated number of days being allowed before the commencement of trial . In determining the effective date of the Rule of Seven time computation/time interval amendments having a statutory basis, said amendments take effect on July 1, 2012 and regardless of whether time intervals are counted forward or backward, both the time computation start date and deadline date must be after June 30, 2012. Further, the time computation/time interval amendments do not apply to modify the settings of any dates or time intervals set by an order of a court entered before July 1, 2012.

Annotation Law reviews. For article, "'Rule of Seven' for Trial Lawyers: Calculating Litigation Deadlines", see 41 Colo. Law. 33 (January 2012). Rule preserves defendant's right to raise fourth amendment issue. Section (d) of this rule which must be read in conjunction with Rule 41(e), Crim. P., adequately preserves a defendant's right to raise a fourth amendment issue, while carrying out the salutary purpose of not commingling the fourth amendment issue with the guilt issue. Morgan v. People, 166 Colo. 451, 444 P.2d 386 (1968). Purpose of section (d) is to allow time for adequate preparation. People v. District Court, 189 Colo. 159, 538 P.2d 887 (1975). And notice served same day as pretrial hearing clear violation of rule. Where notice of motion to disqualify the district attorney from further participation in a criminal case is given to the district attorney's office the same morning that the hearing on the motion was held, the consideration of this motion by the trial court when the district attorney did not have fair notice and an opportunity to defend himself is a clear violation of the provisions of this rule. People v. District Court, 189 Colo. 159, 538 P.2d 887 (1975). But failure to object to lack of notice constitutes waiver. If defendant fails to object to the lack of notice at the hearing prior to trial or fails to request a continuance, his silence constitutes a waiver of the five-day notice. Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971). Timely motion for new trial is not jurisdictional in the sense that without it the court would lack authority to adjudicate the subject matter. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Rather, it is a procedural prerequisite intended to assure that the matters appealed have been considered by the trial court. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). And prosecution's failure to object waives timeliness issue on appeal. The people, by failing to object to the trial court's hearing and deciding the new trial motion, waived their right to raise the timeliness issue on appeal. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Excusable neglect. A trial court may extend the time for filing a motion on the basis that failure to act on time was the result of excusable neglect if there was a factual finding to support a claim of ineffective assistance of counsel. Swainson v. People, 712 P.2d 479 (Colo. 1986). Excusable neglect does not include family considerations or lack of knowledge of the law for purposes of extending the time to file a Crim. P. 35 motion. People v. Delgado, 83 P.3d 1144 (Colo. App. 2003), rev'd on other grounds, 105 P.3d 634 (Colo. 2005). Burden of showing excusable neglect under section (b) is upon the defendant. People v. Dillon, 655 P.2d 841 (Colo. 1982). Defendant wrongfully believing appeal being processed by attorney allowed to file untimely motion. In light of the defendant's uncontroverted belief that his attorney is processing his appeal, the trial court abuses its discretion when it later denies defendant's motion to file an untimely motion and thereby perfect his appeal. People v. Dillon, 631 P.2d 1153 (Colo. App. 1981). Considerations governing determination of effect of time limitations in criminal cases and in civil cases. People v. Moore, 193 Colo. 81, 562 P.2d 749 (1977). Mere speculation regarding the court's disposition of a motion for a continuance or to recall a witness does not obviate the defendant's duty to seek such procedures if the defendant is to base his claim of prejudice on the inability to prepare new theories of defense or to cross-examine past witnesses in light of previously undisclosed evidence. Salazar v. People, 870 P.2d 1215 (Colo. 1994). Applied in People v. Masamba, 39 Colo. App. 187, 563 P.2d 382 (1977); People v. Houpe, 41 Colo. App. 253, 586 P.2d 241 (1978); People v. Peterson, 656 P.2d 1301 (Colo. 1983).