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STATUTE OF
LIMITATIONS
COLORADO CRIMINAL
CHARGES |
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CRS 16-5-401. Limitation for commencing criminal
proceedings
(1) (a)
Except as otherwise provided by statute applicable to specific offenses or
circumstances, no person shall be prosecuted, tried, or punished for any offense
unless the indictment, information, or complaint is filed in a court of
competent jurisdiction or a summons and complaint or penalty assessment notice
is served upon the defendant within the period of time after the commission of
the offense as specified below:
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Murder, kidnapping, treason, and any forgery regardless of the penalty
provided
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No limit
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Attempt, conspiracy, or solicitation to commit murder;
attempt, conspiracy, or solicitation to commit kidnapping;
attempt, conspiracy, or solicitation to commit treason; and
attempt, conspiracy, or solicitation to commit any forgery
regardless of the penalty provided
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No limit
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Other felonies
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Three years
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Misdemeanors - including DUI, DWAI, DEAC
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Eighteen months
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Class 1 and 2 misdemeanor traffic offenses
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One year
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Petty offenses
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Six months
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(2)
The time limitations imposed by this section shall be tolled if the adult
offender or juvenile is absent from the state of Colorado, and the duration of
such absence, not to exceed five years, shall be excluded from the computation
of the time within which any complaint, information, indictment, or petition in
delinquency must otherwise be filed or returned.
(3) The period
within which a prosecution must be commenced does not include any period in
which a prosecution is pending against the adult defendant or juvenile for the
same conduct, even if the indictment, information, complaint, or petition in
delinquency which commences the prosecution is quashed or the proceedings
thereon are set aside or are reversed on appeal.
(4) When an
offense or delinquent act is based on a series of acts performed at different
times, the period of limitation prescribed by this code starts at the time when
the last act in the series of acts is committed.
..... other provisions omitted as irrelevant
METHOD OF TIME COMPUTATION
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Alleged offense to arrest or service |
____ years, ____
months, ____ days |
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Less prior pending
prosecution Case No. _______. |
- ____ years, ____
months, ____ days |
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Less time out of
state |
- ____ years, ____
months, ____ days |
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Net creditable time offense to arrest or
service |
= ____ years, ____
months, ____ days |
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Less Statute of
Limitations CRS 16-5-401(1)(a) |
- ____ years, ____
months, ____ days |
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Time exceeding statute of limitations |
= ____ years, ____
months, ____ days |
BURDEN OF
PROOF AND EVIDENCE
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The burden of proof is upon the prosecution to show
Evidence of the date of alleged offense is established by the charging
document, law enforcement records and dispatch - 911 tapes / transcript.
Evidence of the date of arrest is established by prosecution and law enforcement
records and dispatch - 911 tapes / transcript.
If a prior prosecution was pending, evidence of the pending time is established by court
documents. This would usually be a criminal case dismissed for lack of
jurisdiction or other reason before jeopardy attached. Jeopardy attaches
at the time the first witness is called in a trial to the court, or when the
jury is sworn in a jury trial.
Defense counsel must establish are that the defendant was not absent from
the state during the relevant period of time. This can be accomplished
through a driving record, driver's license, voter registration and business
records establishing presence, such as payroll records, local merchant charge or
cash receipts bearing the date and names of the merchant and of the
defendant. National merchants would not be sufficient unless the receipt
clearly establishes the location of the store as being in Colorado. As
evidence, I
prefer to have at least one business record every two weeks during
the relevant period of time.
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FELONY AND MISDEMEANOR
TRAFFIC OFFENSES |
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Felony Offenses (F)
18-9-116.5. Vehicular eluding - reckless
(F-5)
18-9-116.5. Vehicular eluding - reckless
- bodily injury (F-4)
18-9-116.5. Vehicular eluding - reckless
- death (F-4)
18-3-106. Vehicular homicide - alcohol
(F-3)
18-3-106. Vehicular homicide - reckless
(F-4)
18-3-205. Vehicular assault - alcohol
(F-4)
18-3-205. Vehicular assault - reckless
(F-5)
Misdemeanor Offenses (M)
42-2-136. Unlawful use of license -
alteration (M-3)
42-2-138. Driving under restraint
42-4-1301(1)(a) DUI (M)
42-4-1301(1)(b) DWAI (M)
42-4-1301(2) DEAC (M)
Class 1 Misdemeanor Traffic Offense
42-4-1402. Careless driving - bodily
injury or death
42-4-1409. Compulsory insurance -
penalty - repeal
42-4-1601. Hit & run - accidents
involving death or personal injuries
42-4-1903. School buses - stops - signs
- passing - 2nd offense within 5 years
Misdemeanor Traffic Offenses unclassified
(MTO)
42-4-203. Unsafe vehicles (MTO)
42-4-313. Emissions control - fraud (MTO)
42-4-413. Visible emissions from
diesel-powered motor vehicles unlawful - penalty (MTO)
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Class 2 Misdemeanor Traffic
Offense
42-2-101 No operator’s license
42-2-115. License, permit, or
identification card to be exhibited on demand
42-2-124. Surrender of license to court
42-2-129. Mandatory surrender of license
or permit for driving under the influence or with excessive alcoholic
content
42-2-130. Mandatory surrender of license
or permit for drug convictions
42-2-132. Application for new license
before expiration of period of suspension or revocation
42-2-136. Unlawful possession or use of
license
42-2-137. DMV false affidavit - penalty
42-2-138. Driving under restraint -
failure to surrender license
42-3-107. Taxable value of classes of
property - license plate fraud
42-4-107. Obedience to police officers
directing, controlling or regulating traffic
42-4-228. Restrictions on tire
equipment.
42-4-233. Alteration of suspension
system
42-4-235. Minimum standards for
commercial vehicles
42-4-507. Wheel and axle loads
42-4-508. Gross weight of vehicles and
loads
42-4-509. Vehicles weighed - excess
removed
42-4-510. Permits for excess size and
weight and for manufactured homes
42-4-1101. Speeding 25+ mph over limit
42-4-1105. Speed contests
42-4-1401. Reckless driving - penalty
42-4-1402. Careless driving
42-4-1413. Eluding or attempting to
elude a police officer
42-4-1602. Hit & run - accident
involving damage
42-4-1604. Hit & run - striking
unattended vehicle or other property
42-4-1605. Hit & run - striking
highway fixtures or traffic control devices
42-4-1606. Duty to report accidents
42-4-1704. Owner or any other person
employing or otherwise directing the driver of any vehicle to require
or knowingly to permit the operation of such vehicle upon a highway in
any manner contrary to law.
42-4-1716. Notice to appear or pay fine
- failure to appear - penalty
42-4-1903. School buses - stops - signs
- passing
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A limited (special) appearance is filed with a motion to dismiss. In
personam (personal) jurisdiction is attacked, not in rem (subject matter)
jurisdiction. This is to avoid a general appearance. Refer to
Jurisdictional
Attack page
This is an unusual defense based upon the fact law enforcement is usually
efficient at re-service or re-arrest if a case is dismissed, but it has arisen
in DUI cases which had been initially dismissed for jurisdictional defect.
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| CRS 18-1-405, C.R.Crim.P. 48(b), Colorado Constitution Article 2, §16, U.S.
Constitution, Amendment VI |
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| Entry of Plea &
Demand for Trial. |
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a. Under the speedy
trial rule, trial must be provided within 6 months from entry of not
guilty plea. |
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Speedy & Public Trial: C.R.Crim.P. 48(b), CRS 18-1-405,
Article II Section 16 of the Colorado Constitution and
Amendment 6 to the U.S. Constitution. See also 4th,
5th & 14th Amendments to the U.S. Constitution, and Article
II, Sections 7, 18 & 25 of the Colorado Constitution |
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Speedy trial commences on the date of filing the not guilty
plea. Harrison v. District Court, 192 Colo. 351, 559
P.2d 225 (1977), Rodman v. Adams County Court, 694
P.2d 871 (Colo. App. 1984). This can become important
as to speedy trial expiration if the case is transferred to
division and advisement + oral not guilty plea is delayed. |
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b. Demand must be made for jury
trial: |
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Felony offense cases
- not guilty plea entered |
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a. Jury trial is free - jail may be imposed in excess of
6 months upon conviction of any charge. |
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b. Standard number of jurors is 12, defendant may request
6 jurors. C.R.Crim.P. 23, Colorado Constitution
Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406 |
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| 2. Misdemeanor offense cases
- not guilty plea entered |
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a. Jury trial is free if jail may be imposed in excess of
6 months upon conviction of any charge. |
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b. If potential jail is limited to 6 months or less for
each charge, a jury demand must be accompanied by a $25
jury deposit within 10 days from entry of the not
guilty plea. CRS
16-10-109, C.R.Crim.P. 23. Although local
county court judges will likely grant a jury demand
without payment of the jury deposit, absent timely
jury deposit payment, prosecutors may take the
issue to the district court seeking a writ of
prohibition. In the likely event of adverse
ruling, subsequent jury deposit payment would be
outside the 10 day limitation and jury trial right
would be lost. This attorney will timely pay the
jury deposit to avoid the issue and preserve the
client's right to jury trial. |
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c. Driving While Ability Impaired, CRS
42-4-1302(1)(b) has been determined not a petty
offense and no jury deposit is required under CRS
16-10-109, C.R.Crim.P. 23. Refer to Byrd v. Stavely, 113 P.3d 1273 (Colo. App 2005) This is
the exception to the 6+ month potential jail jury
deposit rule. |
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d. Standard number of jurors is 6, defendant may request 3
jurors. C.R.Crim.P. 23, Colorado Constitution
Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406 |
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| 3.
Petty offense cases - not guilty plea entered |
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a. Petty offenses are crimes or offenses
punishable not in excess of imprisonment for six months and a
fine of not more than $500, or a combination of imprisonment and
fine within such limits. Robran v. People,
173 Colo. 378 (Colo. 1971); Austin v. City and County of Denver, 170
Colo. 448, 462 P.2d 600 (Colo. 1969) |
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b. There is no constitutional right to a jury
trial for a petty offense. |
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c. The statutory right to jury trial in a petty offense is established in
CRS 16-10-109, however the statute identifies petty offenses as an offense classified as a
petty offense or defined as an offense which is punishable by imprisonment other
than in a correctional facility for not more than six months, or by a fine of
not more than five hundred dollars, or by both such imprisonment and fine.
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d. Based upon statutory limitations of potential jail not
more than 6 months, a jury demand must be accompanied
by a $25 jury deposit within 10 days from entry of the
not guilty plea. CRS
16-10-109, C.R.Crim.P. 23. Refer to ¶3(c)(1)
above regarding timely payment. |
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e. Standard number of jurors is
3, defendant may request 6
jurors. C.R.Crim.P. 23, Colorado Constitution
Article 2 §§16, 23, CRS 16-10-101, CRS 18-1-406
Counsel requests 6 jurors. |
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f. An
El Paso County Court case appealed to the District Court resulted in a ruling
that jury trial is a right in an
MIP
prosecution (underage possession / consumption) which does not fit the statutory definition of petty offense
for purpose of jury trial right, however counsel would argue that right. |
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c. The right to jury trial is an important right which
should never be waived unless for tactical reasons after
consulting with counsel. |
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Objection required. If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of
the speedy trial rule or statute. |
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Dismissal motion required. To be entitled to a dismissal, the defendant must move for dismissal prior to the commencement of his trial and prior to any pretrial motions which are set for hearing immediately before the trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant's rights under
of the speedy trial rule or statute. |
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A balancing test (4 factors) is used to determine whether right to speedy trial has been
denied
1.) the length of the delay, 2.) the reason for the delay,
3.) the defendant's assertion or demand for a speedy trial, and 4.) the prejudice to the
defendant. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973); People v.
Chavez, 779 P.2d 375 (Colo. 1989), People v. Fears, 962 P.2d 272 (Colo. App.
1997), Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978).
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Limited
Identification of Issues or Factors Which May Become Relevant in
Speedy Trial Argument |
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Statutory Right to Speedy Trial vs. Constitutional Right to Speedy
Trial
Burden of Compliance
Judicial Construction
Court Docket Congestion - Claim for Relief From Burden of Compliance
Dismissal Relief
Commencement Date Used for Speedy Trial
Delay and Speedy Trial
Defendant's Absence from Court Proceeding
Accommodation to Defense Counsel's Calendar
Effect of Charging Amendment Upon Speedy Trial
Effect of Dismissal and Re-Filing New Case Upon Speedy Trial
Dismissal and Re-Filing or Amending Charges - Prosecution Good Faith
or Bad Faith
Extension of Speedy Trial - Exceptional Circumstances
Colorado Witness Unavailability - Prosecution Due Diligence
Out of State Witness - Prosecution Due Diligence
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Effect
of Request for Pre-Trial Conference Upon Speedy Trial
Prosecution Request for Continuance - No Consent by Defense
Prosecution Request for Continuance - Consent by Defense
Defense Request for Continuance
Defense Request for Continuance
Prosecution Late Witness Endorsement - Defense Tactical Decision
Defendant's Obligation to Object to Setting on the Basis of Speedy
Trial
Participation in Setting - Defense Affirmative Objection Obligations
Generic Assertion of Speedy Trial Rights vs. Specific Objection
Unilateral Off Record Setting - Obligation to Timely Object
Prohibition as Remedy for Speedy Trial Violation
Effect of Failed Plea Disposition upon Speedy Trial
Guilty Plea Outside Speedy Trial Period
Effect of Interlocutory Appeal Upon Speedy Trial
Effect of Defense Continuance - Certiorari Original Proceeding
Effect of Mistrial Upon Speedy Trial
Effect of Reversal on Appeal Upon Speedy Trial |
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Some periods of time defined by law are
excluded from speedy trial. Continuance requested by defendant
or to which defendant consents will effect speedy trial. Other
periods of time (e.g. witness unavailability) may be excluded from
speedy trial - this would extend the potential trial date beyond 6
months from date of not guilty plea. |
Continuance by Defense
6 months from the date upon
which the continuance was granted |
Continuance by Prosecution -
Defense Objection
no extension of speedy trial |
Non-Appearance by Defendant
6 months from the date of
next court appearance
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Continuance by Prosecution -
Defense Consent
number of days between the
date on which the continuance is granted
and the date to which the trial is continued |
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Speedy trial issues are complex - consult the attorney who
represents you |
NOTE:
Legal Advice
Limited to Clients - Not General Public |
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This is an unusual defense based upon the fact prosecutors and courts are
mindful of speedy trial and set accordingly, but attorney has had domestic violence cases
and other criminal or traffic cases
dismissed upon speedy trial grounds. |
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C.Muni.C.P. 248(b)
- 90 days from entry of plea of not guilty
If there is unnecessary delay in the trial of a defendant, the court may dismiss the case. If the trial of a defendant is delayed more than ninety days after the arraignment of the defendant, or unless the delay is occasioned by the action or request of the defendant, the court shall dismiss the case and the defendant shall not thereafter be tried for the same offense; except that if on the day of a trial set within the last ten days of the above time limit a necessity for a continuance arises which the court in the exercise of sound judicial discretion determines would warrant an additional delay, then one continuance, not exceeding thirty days, may be allowed, after which the dismissal shall be entered as above provided if trial is not held within the additional time allowed.
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ATTORNEY
REPRESENTATION
AND DECLINED MATTERS
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ALTERNATIVES
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FIND
A LAWYER |
if
you are seeking the below
please refer to above links for helpful information |
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sole practitioner
attorney does not accept these matters |
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a. a pro-bono (free) lawyer
b. an attorney who may take
lower fees - economic hardship
c. an attorney who may take installment payments |
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MID-LITIGATION
REPRESENTATION
alternatives and find a
lawyer links provided as a courtesy
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Attorney
Policies
Litigant Pro Se - Attempt to
Prepare Defense of Own Traffic or Criminal Case |
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1.
Adequate Time. If sufficient time exists to adequately prepare your case and if prospective client approves this
attorney's fees and costs structure, attorney will
likely accept defense representation. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
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2.
Insufficient Time. If you've waited until the eleventh hour and there is not
sufficient time to adequately prepare your case or defense before a contested
court proceeding, please do not call. I decline. |
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3.
Limited Assistance.
Please do not call requesting instruction, directions, legal theory,
forms completion or limited document drafting, partial representation, or an explanation of
applicable law to assist you in preparation or defense of your own case. I decline. |
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Attorney
Policies
Representation
by Previous Attorney
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1.
Current Attorney.
Until an order has entered withdrawing representation by an
attorney, an ethical rule violation exists if counsel
knowingly speaks to another attorney's client without current
attorney's consent. This ethical rule governs all
attorneys. Please do not call until after
you have terminated representation by a former attorney.
After
other counsel's withdrawal it may take significant effort for the the new attorney to "catch up."
Please be aware fees and costs will be associated with procuring the court
file and coming up to speed in the case. |
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2.
Adequate Time.
If prospective client terminates employment of the
former attorney, if sufficient time exists to adequately prepare your
traffic or criminal case, and if prospective client approves this
attorney's fees and costs structure, attorney will
likely accept representation. This shall
not constitute an offer of representation; attorney and
prospective client retain discretion through
first
consultation. |
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3.
Insufficient Time.
If you've waited until the eleventh hour and there is
not sufficient time to adequately prepare your case or
defense before a contested court proceeding, please do
not call. I decline. |
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4.
Second Opinion.
I will not arm chair quarterback another
attorney's case preparation, trial tactics or theory of
the case. Please do not call for a second
opinion or an opinion regarding the competence
of preparation or defense in your current
traffic or criminal case. I decline. |
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POST
SENTENCING MATTERS
PROBATION
REVOCATION * PAROLE VIOLATION
DEFERRED SENTENCE
REVOCATION * APPEALS |
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Post
Sentencing. I do not accept post sentencing
matters in any criminal, DUI or traffic case unless I provided
representation during the case in chief at the trial court level
and am familiar with the facts,
testimony and exhibits received into evidence, meritorious issues
& rulings. That's been my policy for years. Please do
not call or inquire regarding post sentencing matters if you are
not a former client.
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This
includes plea to
domestic
violence or other
criminal charge,
DUI,
DEAC
or DWAI charge or other
traffic
charge and probation,
deferred sentence,
parole or incarceration or
revocation proceedings based upon alleged failure to comply. |
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Exceptions.
If the underlying criminal case qualifies, refer to
sealing
criminal records. I accept meritorious sealing cases
regardless of whether or not you are a former client. NOTICE:
alcohol related traffic offenses, other traffic offenses or traffic
infractions are a specifically excluded in the
sealing
statute and can not be sealed. If relevant, I also accept
meritorious
collateral
attack cases.
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ATTORNEY
TRADE AREA & TRAVEL
CASES OUTSIDE EL PASO COUNTY
GEOGRAPHIC
DISTANCE
ECONOMIC CONSIDERATIONS
Colorado is a big state
ease of internet access, email & toll free phone doesn't change
that fact |
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Attorney
is very willing to travel outside the Colorado Springs area to present
or defend a case,
but please be aware travel time, mileage and expense would apply. If you are out of state or unfamiliar with Colorado
geography, refer to the map to determine where
Colorado Springs is
located in relation to the county of your court case or hearing. |
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Southern Colorado Area |
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If travel is
necessary, a
trust deposit
would be required to cover anticipated travel time, mileage &
expenses. If it is not economically justifiable to retain
my services with travel, please contact counsel in the locale of
your case. |
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| COUNTIES |
CITIES / TOWNS |
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El Paso
County |
Colorado Springs / Manitou
Springs / Fountain |
I welcome new cases. Intent is not to be harsh
or to discard potential new business, but to be practical. |
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Chaffee
County |
Salida |
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Crowley
County |
Ordway |
Metro Denver Area |
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Custer
County |
Westcliffe |
COUNTIES |
CITIES / TOWNS |
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Douglas
County |
Castle Rock |
City and County of Denver |
Denver |
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Elbert
County |
Kiowa / Simla |
Adams County |
Brighton / Thornton / Federal
Heights |
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Fremont
County |
Canon City / Florence / Penrose |
Arapahoe
County
Court
District Court |
Littleton / Centennial /
Englewood |
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Huerfano County |
Walsenburg |
Arapahoe County - East |
Aurora |
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Las
Animas County |
Trinidad |
Broomfield County |
Broomfield |
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Lincoln
County |
Hugo (county seat) / Limon |
Gilpin
County |
Blackhawk / Central City |
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Otero
County |
La Junta |
Jefferson County |
Golden / Wheat Ridge |
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Park
County |
Fairplay |
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Pueblo
County |
Pueblo |
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Teller
County |
Cripple Creek / Woodland Park |
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| please
feel free to call or email if you are a client or are seeking representation |
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FREE
INITIAL CONSULTATION
not an offer for free legal
advice - refer to link for terms
I am a sole practitioner with need to manage my caseload & reserve
the right to decline any legal matter |
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Serving Colorado Springs
Area Zip Codes |
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| 80918 80920 80919 80917 80915
80908 80132 80909 80913 80916 80921 80922 80925 80901 80902 80903 80904 |
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80905 80906 80907 80910 80911 80912
80914 80921 80926 80928 80929 80930 80931 80933 80934 80935 80936 |
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80937 80940 80941 80942 80943 80944 80945
80946 80947 80949 80950 80960 80962 80970 80977 80995 90997 |
Copyright © 1986
- All Rights Reserved - Document
Revised: October 01, 2009
no copyright claimed to merchant logo, software logo, flag, envelope or drawing images
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