(a) Filing Notice of Appeal and Docketing Appeal. The district attorney may appeal a question of law, and the defendant may appeal a judgment of the county court in a criminal action under simplified procedure to the district court of the county. To appeal the appellant shall, within 35 days after the date of entry of the judgment or the denial of posttrial motions, whichever is later, file notice of appeal in the county court, post such advance costs as may be required for the preparation of the record and serve a copy of the notice of appeal upon the appellee. He shall also, within such 35 days, docket the appeal in the district court and pay the docket fee. No motion for new trial or in arrest of judgment shall be required as a prerequisite to an appeal, but such motions if filed shall be pursuant to Rule 33(b) of these Rules.
(b) Contents of Notice of Appeal and Designation of Record. The notice of appeal shall state with particularity the alleged errors of the county court or other grounds relied upon for the appeal, and shall include a stipulation or designation of the evidence and other proceedings which the appellant desires to have included in the record certified to the district court. If the appellant intends to urge upon appeal that the judgment or a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion. The appellee shall have 14 days after service upon him of the notice of appeal to file with the clerk of the county court and serve upon the appellant a designation of any additional parts of the transcript or record which he deems necessary. The advance cost of preparing the additional record shall be posted by the appellant with the clerk of the county court within 7 days after service upon him of the appellee’s designation, or the appeal will be dismissed. If the district court finds that any part of the additional record designated by the appellee was unessential to a complete understanding of the questions raised by the appeal, it shall order the appellee to reimburse the appellant for the cost advanced for the preparation of such part without regard to the outcome of the appeal.
(c) Contents of Record on Appeal. Upon the filing of a notice of appeal and upon the posting of any advance costs by the appellant, as are required for the preparation of a record, unless the appellant is granted leave to proceed as an indigent, the clerk of the county court shall prepare and issue as soon as possible a record of the proceedings in the county court, including the summons and complaint or warrant, the separate complaint if any has been issued, and the judgment. The record shall also include a transcription or a joint stipulation of such part of the actual evidence and other proceedings as the parties designate. If the proceedings have been recorded electrically, the transcription of designated evidence and proceedings shall be prepared in the office of the clerk of the court, either by him or her or under his or her supervision, within 42 days after the filing of the notice of appeal or within such additional time as may be granted by the county court. The clerk shall notify in writing the opposing parties of the completion of the record, and such parties shall have 14 days within which to file objections. If none are received, the record shall be certified forthwith by the CLERK. If objections are made, the parties shall be called for hearing and the objections settled by the county judge and the record then certified.
(d) Filing of Record. When the record has been duly certified and any additional fees therefor paid, it shall be filed with the clerk of the district court by the clerk of the county court, and the opposing parties shall be notified by the clerk of the county court of such filing.
(e) Briefs. A written brief setting out matters relied upon as constituting error and outlining any arguments to be made shall be filed in the district court by the appellant within 21 days after certification of the record. A copy of the appellant’s brief shall be served upon the appellee. The appellee may file an answering brief within 21 days after such service. A reply brief may be filed within 14 days after service of the answering brief. In the discretion of the district court, the time for filing briefs and answers may be extended.
(f) Stay of Execution. Pending the docketing of the appeal, a stay of execution shall be granted by the county court upon request. If a sentence of imprisonment has been imposed, the defendant may be required to post bail, and if a fine and costs have been imposed, a deposit of the amount thereof may be required by the county court. Upon a request for stay of execution made any time after the docketing of the appeal, such action may be taken by the district court. Stays of execution granted by the county court or district court and, with the written consent of the sureties if any, bonds posted with such courts shall remain in effect until after final disposition of the appeal, unless modified by the district court.
(g) Trials de Novo; Penalty Not Increased. If for any reason an adequate record cannot be certified to the district court the case shall be tried de novo in that court. No action on appeal shall result in an increase in penalty.
(h) Judgment; How Enforced. Unless there is further review by the Supreme Court upon writ of certiorari pursuant to the rules of such court, after final disposition of the appeal the judgment on appeal entered by the district court shall be certified to the county court for action as directed by the district court, except in cases tried de novo by the district court or in cases in which the district court modifies the county court judgment, and in such cases, the judgment on appeal shall be that of the district court and so enforceable.
(i) Appeals to Superior Court. In counties in which a superior court has been established, appeals from the county court shall be taken to the superior court rather than the district court. All of the provisions of this section governing appeals from the county court to the district court are applicable when the appeal is taken to the superior court, and the term “district court” as used in this section shall be understood to include the superior court.
Source: a, b, c, and e amended and adopted December 14, 2011, effective July 1, 2012; c amended and effective January 16, 2014.
Annotation Law reviews. For article, “Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986”, which discusses a recent case relating to the right of appeal, see 15 Colo. Law. 1613 (1986). Appeals between county and superior courts. The district court has no jurisdiction to interfere with the appeal process between the county and superior courts. Petry v. County Court, 666 P.2d 1125 (Colo. App. 1983). This rule does not give authority to the court of appeals to hear an appeal of a district court judgment modifying a county court decision. The modified county judgment becomes a district court judgment only for purposes of enforcement. People v. Smith, 874 P.2d 452 (Colo. App. 1993). Because appellant’s conviction originated in a municipal court of record, appellant had 30 days following the judgment of conviction to file the notice of appeal pursuant to ยง 13-10-116 , this rule, and C.M.C.R. 237. Normandin v. Town of Parachute, 91 P.3d 383 (Colo. 2004). Finality attaches upon expiration of 30 days from judgment. Where judgment and sentence had been entered in the county court, at the expiration of 30 days-no notice of appeal having been filed-it became final. Mills v. People, 181 Colo. 168, 509 P.2d 594 (1973). And time to file appeal not automatically extended by new trial motion. The filing of a motion for a new trial does not have the effect of automatically extending the time to file a notice of appeal as prescribed by this rule. Mills v. People, 181 Colo. 168, 509 P.2d 594 (1973). Appeals filing period begins to run when the judgment becomes final-that is when sentence has been passed-even though sentencing has been delayed for over a year due to defendant’s voluntary unavailability. Hellman v. Rhodes, 741 P.2d 1258 (Colo. 1987). For purposes of appeal, a final judgment must include the sentence. Therefore, after the sentence was vacated on appeal, an order withdrawing plea of guilty was not a final judgment. Ellsworth v. People, 987 P.2d 264 (Colo. 1999). A trial de novo conducted by the district court is not a review of the county court judgment; it is an entirely new proceeding. Bovard v. People, 99 P.3d 585 (Colo. 2004). Only in cases tried de novo by the district court will the district court judgment be subject to direct appeal. Justifiably, then, the defendant may seek direct appeal when the district court enters its judgment from a de novo trial. Bovard v. People, 99 P.3d 585 (Colo. 2004). Certiorari review does not suffice as an appellate review from a final judgment of the district court. Bovard v. People, 99 P.3d 585 (Colo. 2004). Transcript of all evidence presented to lower court relevant to challenged ruling required. Where an appellant challenges a ruling that was based, either in whole or in part, on evidence presented to the lower court, a transcript of all evidence pertaining to the decision must be included in the record; however, the appellant is not required by Crim. P. 37(b), to include in the record a transcript of evidence that is not relevant to the issues raised on appeal. Holcomb v. City & County of Denver, 199 Colo. 251, 606 P.2d 858 (1980); People v. Campbell, 174 P.3d 860 (Colo. App. 2007). Filing a notice of appeal in the county court is not a jurisdictional requirement of subsection (a) of this rule, but timely docketing an appeal in the district court is sufficient to invoke the appellate jurisdiction of that court. Peterson v. People, 113 P.3d 706 (Colo. 2005). Timely filing of a brief is not jurisdictional under this rule, and a trial court’s discretion to extend the time to file a brief under section (e) is not restricted to extensions requested within the normal filing time. People v. Chapman, 192 Colo. 322, 557 P.2d 1211 (1977). Excusable or inexcusable neglect considered in deciding whether to reinstate after late brief. Although no “excusable neglect” prerequisite appears in section (e), the court may consider excusable or inexcusable neglect among other factors in deciding whether to grant a motion to reinstate after late filing of a brief. People v. Chapman, 192 Colo. 322, 557 P.2d 1211 (1977). Unavailability or inadequacy of record mandates trial de novo. If the record is unavailable, a defendant should not suffer for the lack thereof, but should be afforded an entirely new trial; if a record is inadequate, the district court must grant a trial de novo under section (g). It has no discretion in the matter. Hawkins v. Superior Court, 196 Colo. 86, 580 P.2d 811 (1978). Applied in People v. Lessar, 629 P.2d 577 (Colo. 1981); People v. Luna, 648 P.2d 624 (Colo. App. 1982); Waltemeyer v. People ex rel. City of Arvada, 658 P.2d 264 (Colo. 1983); Dike v. People, 30 P.3d 197 (Colo. 2001).
