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).