2021 Colorado Code
Title 16 - Criminal Proceedings
Article 12 - Review of Judgments in Criminal Cases
Part 1 - Review
§ 16-12-102. Appeals by the Prosecution

1. The prosecution may appeal any decision of a court in a criminal case upon any question of law. Any order of a court that either dismisses one or more counts of a charging document prior to trial or grants a new trial after the entry of a verdict or judgment shall constitute a final order that shall be immediately appealable pursuant to this subsection (1). If any act of the general assembly is adjudged inoperative or unconstitutional in any criminal case, it is the duty of the district attorney of the judicial district in which the court making such decision is situated to appeal on behalf of the people of the state of Colorado, unless the same issue of constitutionality is already pending before a reviewing court in another case. Nothing in this section shall authorize placing the defendant in jeopardy a second time for the same offense. No docket fee shall be required of the people upon an appeal under this section. The procedure to be followed in filing and prosecuting appeals under this section shall be as provided by applicable rule of the supreme court of Colorado. However, if a statute providing for the imposition of the death penalty is adjudged inoperative or inapplicable for any reason, such adjudication shall constitute a final order that shall be immediately appealable to the supreme court of Colorado, notwithstanding any statute or court rule to the contrary.
2. The prosecution may file an interlocutory appeal in the supreme court from a ruling of the trial court granting a motion made in advance of trial by the defendant for the return of property and to suppress evidence or granting a motion to suppress an extrajudicial confession or admission if the prosecution certifies to the judge who granted such motion and to the supreme court that the appeal is not taken for the purposes of delay and the evidence is a substantial part of the proof of the charge pending against the defendant. The prosecution may also file an interlocutory appeal in the supreme court from a ruling of the trial court granting a motion in limine pertaining to the matters described in this subsection (2), or from a ruling on a motion made pursuant to section 18-1-202 (11), C.R.S., challenging the place of trial or from a ruling on a motion to disqualify a district attorney pursuant to section 20-1-107, C.R.S.

History. Source: L. 72: R&RE, p. 253, § 1. C.R.S. 1963: § 39-12-102 . L. 86: Entire section amended, p. 734, § 4, effective July 1. L. 89: (2) amended, p. 863, § 4, effective April 12. L. 91, 2nd Ex. Sess.: (1) amended, p. 15, § 1, effective October 7. L. 92: (2) amended, p. 400, § 8, effective June 3. L. 93: (1) amended, p. 1728, § 8, effective July 1. L. 98: (1) amended, p. 948, § 9, effective May 27. L. 2000: (1) amended, p. 453, § 9, effective April 24. L. 2002: (2) amended, p. 759, § 5, effective July 1.

Annotator's note. Since § 16-12-102 is similar to repealed § 39-7-26 , CRS 1963, § 39-7-27 , CRS 53, CSA, C 48, § 500, relevant cases construing those provisions have been included in the annotations to this section.

Appeal by people to review judgment of acquittal did not exist at common law or when the state constitution was adopted in 1876. Krutka v. Spinuzzi, 153 Colo. 115 , 384 P.2d 928 (1963).

Purpose of appeal. Appeals are not allowed for the mere purpose of delay, or to present purely abstract legal questions, however, important or interesting, but to correct errors injuriously affecting the right of some party to the litigation. Miller v. Reeder, 157 Colo. 134 , 401 P.2d 604 (1965).

The purpose of appellate review is essentially twofold: to settle the controversy, and to provide explanation of and to give clarity to questions of law by means of published opinions. People v. Kirkland, 174 Colo. 362 , 483 P.2d 1349 (1971); People v. May, 182 Colo. 29 , 511 P.2d 22 (1973).

An appeal does not lie at the instance of the state unless clearly authorized by this section. People v. Zobel, 54 Colo. 284 , 130 P. 837 (1913).

Prosecution may file direct appeal as to a question of law following the dismissal of all charges without prejudice at the prosecution's request following trial court's evidentiary ruling that rendered the prosecution unable to proceed to trial. The finality of judgment requirement of C.A.R. 1 was satisfied when all charges were dismissed and the case was ended. People v. Gabriesheski, 262 P.3d 653 (Colo. 2011).

The plain text of the statute allows the prosecution to appeal dismissal of a count when other counts remain against the defendant. People v. Collins, 32 P.3d 636 (Colo. App. 2001); People v. Beck, 187 P.3d 1125 (Colo. App. 2008).

The prosecution may appeal a dismissal of a count prior to trial even when the appeal is not based on a question of law. People v. Collins, 32 P.3d 636 (Colo. App. 2001).

As where there is a question to decide for future guidance of trial courts. Where, on appeal in behalf of the state, there is no proper question to decide for guidance of trial courts in the future, the appeal will be dismissed. People v. Denver Athletic Club, 63 Colo. 189 , 164 P. 1158 (1917).

Or where a legislative act has been held invalid. An appeal may be issued on behalf of the people to review court judgments holding legislative acts inoperative or unconstitutional. People v. Bristol, 92 Colo. 325 , 20 P.2d 309 (1933).

Or question of law. This section permits appeals on behalf of the people to review decisions of the trial court upon questions of law arising in any criminal case. People v. Spinuzzi, 149 Colo. 391 , 369 P.2d 427 (1962).

The people are limited on appeal to questions of law. People v. Ware, 187 Colo. 28 , 528 P.2d 224 (1974).

Because subsection (1) authorizes the people to appeal any decision of the trial court in a criminal case upon any question of law, C.A.R. 4(b)(2) requires an appellate court to issue a written decision. People v. Wilburn, 2013 COA 135 , 343 P.3d 998.

Prosecution's appeal, which raises no questions of law, is improper under this section. People v. Chmielewski, 187 Colo. 268 , 529 P.2d 1337 (1975).

Or where complaint dismissed for lack of indictment. Under this section an appeal will lie on behalf of the people to review a judgment of a justice dismissing a complaint charging defendants with commission of a misdemeanor on the ground that the prosecution was not instituted by indictment or information. People v. Read, 132 Colo. 390 , 288 P.2d 347 (1955).

An order granting a new trial is a final order pursuant to this section, therefore, prosecution must file its appeal within 45 days of the order. People v. Curren, 228 P.3d 253 (Colo. App. 2009).

Appropriateness of exclusion of witnesses a question of law. Whether the sanction imposed by the trial court -- exclusion of the witnesses -- for failure to comply with Crim. P. 16 (pt.II)(c), was appropriate under the facts and circumstances of this case matter within the sound discretion of the trial court, and an appropriate question of law under this section. People v. Lyle, 200 Colo. 236 , 613 P.2d 896 (1980).

Trial court's interpretation of phrase in statute under which defendant was charged is a question of law reviewable under this section. People v. Miller, 97 P.3d 171 (Colo. App. 2003).

Appropriateness and validity of technically defective notice of appeal is a question of law. People v. Bost, 770 P.2d 1209 (Colo. 1989).

The prosecution can appeal a court's ruling on a defendant's Crim. P. 35 motion challenging a sentence. People v. Hunsaker, 2013 COA 5 , 411 P.3d 36, aff'd, 2015 CO 46, 351 P.3d 388.

The prosecution can appeal the court's imposed sentence when the basis for the challenge is that the court applied the wrong sentencing range. The prosecution can appeal questions of law, and the statutory interpretation of the correct sentencing range is a question of law. Hunsaker v. People, 2015 CO 46, 351 P.3d 388.

Suppression of evidence is a question of law; therefore the prosecution may pursue an interlocutory appeal when a motion to suppress evidence is granted. People v. Lewis, 813 P.2d 813 (Colo. App. 1991).

Suppression of a confession given in the absence of a Miranda advisement was warranted where a defendant was vigorously chased, threatened at gunpoint, sprayed with mace, and ultimately subdued and handcuffed, because, despite the arresting officers' belief that they did not have probable cause to arrest the defendant, it would appear to a reasonable person that the defendant's freedom of action or movement had been curtailed to a degree associated with a formal arrest in terms of both severity and duration. People v. Mangum, 48 P.3d 568 (Colo. 2002).

Suppression of incriminating statements warranted when defendant was subject to interrogation by police officers before being advised of Miranda rights. A routine encounter turned into a custodial situation, as defendant was physically surrounded by officers, was not free to go during questioning, and had “objective reasons to believe that he was under arrest”; such circumstances constituted custody. People v. Null, 233 P.3d 670 (Colo. 2010).

Suppression of involuntary blood alcohol test results in a vehicular homicide prosecution was erroneous because probable cause to administer the test existed when eyewitnesses saw the defendant's car veer into oncoming traffic, no other cause for the accident was apparent, and police officers found beer bottles and smelled alcohol in the defendant's car. People v. Schall, 59 P.3d 848 (Colo. 2002).

Only three circumstances for interlocutory appeal of a suppression order. Review is proper where evidence was suppressed due to: (1) An unlawful search and seizure; (2) an involuntary confession or admission; or (3) an improperly ordered or insufficiently supported, nontestimonial identification. People v. Braunthal, 31 P.3d 167 (Colo. 2001).

Review pursuant to subsection (1) not appropriate where argument in essence challenges trial court's assessment of the evidence and does not properly pose a question of law. People v. Fagerholm, 768 P.2d 689 (Colo. 1989).

No proper jurisdiction to hear an appeal when appeal involves an evidentiary issue that implicates factual as well as legal issues. People v. Martinez, 22 P.3d 915 (Colo. 2001).

The prosecution could not appeal the validity of an initial search because it was not challenging the ruling based on a question of law. The prosecution's arguments included factual issues related to the question of good faith. People v. George, 2017 COA 75 , __ P.3d __.

Court of appeals has jurisdiction to decide if trial court erred in granting new trial under a postconviction relief motion when issues in motion were brought pursuant to the “other remedies” portion of Crim. P. 35. People v. Naranjo, 821 P.2d 836 (Colo. App. 1991).

Court of appeals had appellate jurisdiction because trial court ultimately dismissed the charges against defendant, which resulted in a final judgment. Regardless of whether the order declining to revoke defendant's deferred judgment was immediately appealable, the finality requirement was met when the trial court dismissed all of the charges. People v. Wilburn, 2013 COA 135 , 343 P.3d 998.

Trial court's finding in the preliminary hearing that a killing was completely independent of a burglary was not binding on the appellate court. People v. Lewis, 791 P.2d 1152 (Colo. App. 1989).

Dismissal of prosecution based solely on reviewing content of document was matter of law and therefore reviewable. People v. Marston, 772 P.2d 615 (Colo. 1989).

A denial of the prosecution's request for a presentence investigation report, when such a report is mandated by statute, clearly presents a question of law appealable under this section. People v. Gretz, 973 P.2d 110 (Colo. App. 1998).

Legal significance of delays in defendant's trial appealable matter. Where the trial court ruled that the delays in defendant's trial were at the request and for the benefit of the defendant, the facts are undisputed, and the only question is their legal significance, which is an appealable matter. People v. Reliford, 186 Colo. 6 , 525 P.2d 467 (1974).

But questions of fact cannot be the subject of appeal proceedings by which the people seek disapproval of an action of the trial court. People v. Ledesma, 171 Colo. 407 , 468 P.2d 27 (1970).

Where determination that delays in bringing defendant to trial involved resolutions of fact questions, the district attorney could not appeal such determinations. People v. Murphy, 183 Colo. 106 , 515 P.2d 107 (1973).

C.A.R. 4(b) and this section give the district attorney the right to appeal a judgment of a trial court in a criminal case upon any question of law. However, such an appeal, involving sufficiency of the evidence, is seldom productive of any precedential value. The district attorney's time and efforts can be better utilized than prosecuting appeals such as this. Appeals by district attorneys should be avoided in cases which do not involve egregious error by the trial court. People v. Samora, 188 Colo. 74, 532 P.2d 946 (1975).

Subsection (1) does not permit interlocutory appeals in all cases where a trial court declares a statute unconstitutional. Where ruling that statute was unconstitutional was not analogous to a final judgment but instead represented one step toward the resolution of the defendant's Crim. P. 35 (c) motion, and where immediate appellate review was not necessary, appeal was dismissed for lack of appellate jurisdiction. People v. Romero, 801 P.2d 1192 (Colo. 1990).

Nor will sufficiency of evidence be reviewed. The accused being acquitted, the court will not entertain an appeal on behalf of the people merely to determine the sufficiency of the evidence to warrant a conviction, where it is improbable that a similar state of facts will again be presented, or where a consideration of the testimony, and any declarations upon it, will neither establish any principle of law nor be a guide in subsequent prosecutions. People v. Kippy, 64 Colo. 597 , 173 P. 395 (1918), overruled insofar as inconsistent, People v. Kirkland, 174 Colo. 362 , 483 P.2d 1349 (1971).

If the question of the sufficiency of the evidence as a whole is not reviewable on an appeal prosecuted by the people, certainly the question of the sufficiency of that evidence as to any particular element of a crime such as the venue, the identity of the defendant, or the corpus delicti, where there is nothing in the testimony to make it specially applicable to other cases which may follow, is not so reviewable. People v. Archer, 173 Colo. 299 , 477 P.2d 791 (1970), overruled insofar as inconsistent, People v. Kirkland, 174 Colo. 362 , 483 P.2d 1349 (1971).

Appeals by prosecution where the sole issue is the sufficiency of the evidence to sustain a conviction are not favored. People v. Thompson, 748 P.2d 793 (Colo. 1988).

The state may appeal a grant of a new trial. People v. Smith, 921 P.2d 80 (Colo. App. 1996).

Appellate review precluded by the failure of the people to object at the sentencing hearing to the imposition of a sentence within the presumptive range when the defendant was convicted of possession of contraband while in a correctional institution, or to request the trial court, pursuant to Crim. P. 35(a), to correct the sentence. People v. Gallegos, 764 P.2d 76 (Colo. 1988).

Acquittal on motion involving sufficiency is question of law. The issue of sufficiency of the evidence as postured where the trial court has granted the defendant's motion for judgment of acquittal involves a question of law, and as such, the district attorney is given authority to appeal. People v. Kirkland, 174 Colo. 362 , 483 P.2d 1349 (1971).

The final judgment for purposes of appeal was entered when trial court reversed its previous order imposing costs on the defendant, and therefore state's appeal taken more than 30 days after sentencing was proper. People v. Fisher, 189 Colo. 297 , 539 P.2d 1258 (1975).

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).

Prosecutor's appeal pursuant to this section is subject to the final judgment requirement of C.A.R. 1. People v. Guatney, 214 P.3d 1049 (Colo. 2009).

Court order granting defendant's motion seeking the return of marijuana and marijuana plants pursuant to art. XVIII, § 14 (2)(e), of the state constitution is a final judgment subject to appeal under this section. People v. Crouse, 2013 COA 174 , 412 P.3d 599, rev'd on other grounds, 2017 CO 5, 388 P.3d 39.

An order declining to revoke probation is not a final judgment within meaning of C.A.R. 1, thus the court of appeals lacked jurisdiction to entertain the appeal. People v. Guatney, 214 P.3d 1049 (Colo. 2009).

Interlocutory appeals permitted. This section contains no language which would limit the people's right to appeal solely to final judgments of the trial court and, therefore, it permits interlocutory appeals. People v. Traubert, 199 Colo. 322 , 608 P.2d 342 (1980).

Generally, interlocutory appeals authorized by statute are permissive rather than mandatory, and failure to pursue an immediate appeal does not preclude appeal of the issue when it merges into the final judgment. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002).

People's appeal filed within 45 days after defendant's sentencing was timely. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002).

An appeal that is classified as challenging a final order under subsection (1) for purposes of appellate jurisdiction is not necessarily precluded from being interlocutory in nature so as to toll the speedy trial period under § 18-1-405 (6)(b) . People v. Curren, 2014 COA 59 M, 348 P.3d 467.

Prosecution's appeal from a new trial order must be characterized as interlocutory in nature, so as to toll the speedy trial period under § 18-1-405 (6)(b) , so long as the appeal is taken in good faith, is filed before the defendant is convicted, and is necessarily disruptive of the course of proceeding to a final resolution. People v. Gallegos, 946 P.2d 946 (Colo. 1997); People v. Curren, 2014 COA 59 M, 348 P.3d 467.

In order to toll the time for filing an interlocutory appeal, a motion to reconsider a trial court order of suppression must be filed within ten days of the date of the order of suppression. People v. Powers, 47 P.3d 686 (Colo. 2002).

Only mechanism for review of district court's determination on appeal from county court is by certiorari to the supreme court as specified in § 13-6-310 (4) . People v. Gonzales, 198 Colo. 546 , 603 P.2d 139 (1979); People v. Luna, 648 P.2d 624 (Colo. 1982).

Only parties aggrieved may appeal. The word aggrieved refers to a substantial grievance, the denial to the party of some claim of right, either of property or of person, or the imposition upon him of some burden or obligation. Miller v. Reeder, 157 Colo. 134 , 401 P.2d 604 (1965).

Only a party to the original proceeding may sue out an appeal. Where the district attorney was not a party to the proceedings below, the parties being the people of the state of Colorado versus Reeder, and is not a party aggrieved, he cannot be an appellant in the supreme court. Miller v. Reeder, 157 Colo. 134 , 401 P.2d 604 (1965).

Error asserted by state must be prejudicial. Under this section the district attorney is authorized to raise by appeal certain questions, but that right must be predicated upon the theory that the errors committed were prejudicial to the people. People v. Wolff, 111 Colo. 46 , 137 P.2d 693 (1943).

Although the district attorney is entitled to the judgment of the supreme court on questions important to the prosecution of similar cases in the future, it is essential that material errors, prejudicial to the state in the particular case and covered by the statement of errors, be disclosed by the record. People v. Hill, 116 Colo. 436 , 181 P.2d 360 (1947).

Erroneous rulings should be enumerated in opening brief. When the people appeal under this section upon a question of law following an acquittal, they should enumerate in their opening brief the erroneous rulings of which complaint is made. The supreme court will direct its attention only to such issues so mentioned, unless manifest error appears. People v. Martin, 192 Colo. 491 , 561 P.2d 776 (1977).

Trial court's findings of fact are entitled to deference by a reviewing court, but when the absence of factual findings regarding key contested issues hinders appellate review, or when unresolved evidentiary conflicts exist with regard to material facts, case must be remanded to the trial court for further fact-finding. People v. Brazzel, 18 P.3d 1285 (Colo. 2001).

Review by state not available in delinquency proceeding. Appellate courts traditionally limit their jurisdiction to consideration of actual controversies and refuse to give opinions on moot questions or abstract propositions. An exception to this rule is created by this section which provides for appeal on behalf of the people to review decisions of trial courts on questions of law arising in criminal cases, but such statutory review is not available in a proceeding in delinquency, which is not a criminal case. People in Interest of GDK v. GDK, 30 Colo. App. 54, 491 P.2d 81 (1971).

Constitutional jeopardy saving clause not applicable to review by state. Section 18 of art. II, Colo. Const., providing that if a judgment in a criminal case is reversed for errors of law the accused shall not be deemed to have been in jeopardy, must be reviewed as of the time of its adoption and construed in the sense in which the framers understood it, and it cannot be deemed to apply in a situation where the people on review by appeal obtain disapproval of a judgment of acquittal in a criminal proceeding, since at the time of its adoption the people did not have the right to sue out an appeal in a criminal case. Krutka v. Spinuzzi, 153 Colo. 115 , 384 P.2d 928 (1963).

The exception permitting a district attorney not to appeal a finding of unconstitutionality when the same issue of constitutionality is already before another court applies only if it is the same issue of constitutionality, it does not apply if the question of constitutionality is before a reviewing court on a different issue. People v. Gilmore, 97 P.3d 123 (Colo. App. 2003).

This section expressly provides that accused shall not be placed in jeopardy a second time. An accused person is not to be twice put in jeopardy by the judgment of the supreme court in an appeal prosecuted by the people under this section. People v. Fitzgerald, 51 Colo. 175 , 117 P. 135 (1911).

When an accused person is arraigned, tried and acquitted, he is, by the express words of this section, allowing an appeal by the people, not to be again put in jeopardy. People v. Denver Athletic Club, 63 Colo. 189 , 164 P. 1158 (1917).

Where habitual criminal counts have been dismissed by the trial court after jeopardy has already attached on substantive charges, the Colorado double jeopardy clause, § 18 of Art. II, Colo. Const., prohibits a retrial of the defendant on habitual criminality. Appellate review under these circumstances is limited to approval or disapproval of the judgment. People v. Deason, 670 P.2d 792 (Colo. 1983); People v. Leonard, 673 P.2d 37 (Colo. 1983); People v. Germany, 674 P.2d 345 (Colo. 1983); People v. Moody, 674 P.2d 366 (Colo. 1984); People v. Trujillo, 731 P.2d 649 (Colo. 1986).

The prosecution may not cure a failure to timely file an interlocutory appeal of a suppression order by dismissing without prejudice the case against the defendant and then appealing the issues raised in the suppression order. People v. Donahue, 750 P.2d 921 (Colo. 1988).

Lower court's declaration of unconstitutionality and dismissal of some charges in a multi-count information is basis for appellate court jurisdiction under this statute. People v. Jefferson, 748 P.2d 1223 (Colo. 1988).

Lower court's interlocutory ruling that statute creating procedure for determining whether imposition of death penalty is unconstitutional is not reviewable under subsection (1). People v. Young, 814 P.2d 834 (Colo. 1991).

By definition, it could not be used to appeal the ruling on a jeopardy issue. People v. Voss, 191 Colo. 338 , 552 P.2d 1012 (1976).

Where jeopardy has attached and the trial cannot be resumed, there is no justification for reviewing a ruling suppressing the evidence as an appeal under this section. People v. Voss, 191 Colo. 338 , 552 P.2d 1012 (1976).

It precludes a second trial if acquittal is disapproved. The provision that nothing in this section shall be construed so as to place a defendant in jeopardy for a second time for the same offense precludes a second trial for the same offense, even though judgment of acquittal is disapproved by the supreme court. Krutka v. Spinuzzi, 153 Colo. 115 , 384 P.2d 928 (1963).

Double jeopardy held no bar to prosecution of burglary and assault charges. People v. Mendoza, 190 Colo. 519 , 549 P.2d 766 (1976).

The supreme court merely approves or disapproves the ruling complained of by the state on an appeal. People v. Fitzgerald, 51 Colo. 175 , 117 P. 135 (1911).

This section permits a state to appeal from a verdict of acquittal in felony cases for the purpose of obtaining a decision on the correctness of a ruling made by the trial court, but not for the purpose of affecting the verdict in any way. Krutka v. Spinuzzi, 153 Colo. 115 , 384 P.2d 928 (1963).

Trial court applied an improper collateral estoppel standard when it determined that the intent issue was precluded because it was “more likely than not” that the jury found a lack of intent. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002).

This section must be interpreted consistently with applicable rules of procedure and judicial precedent indicative of the legislative intent underlying the statute. People v. Hinchman, 40 Colo. App. 9, 574 P.2d 866 (1977), aff'd in part and rev'd in part, 196 Colo. 526 , 589 P.2d 917 (1978), cert. denied, 442 U.S. 941, 99 S. Ct. 2883, 61 L. Ed. 2d 311 (1979).

Applied in People v. Rael, 198 Colo. 225 , 597 P.2d 584 (1979); People v. Hight, 198 Colo. 299 , 599 P.2d 885 (1979); People v. Jenkins, 198 Colo. 347 , 599 P.2d 912 (1979); People v. Waggoner, 199 Colo. 450 , 610 P.2d 106 (1980); People v. District Court, 623 P.2d 55 (Colo. 1981); People v. Torres, 625 P.2d 368 (Colo. 1981); People v. Boyd, 642 P.2d 1 (Colo. 1982); People v. Ray, 678 P.2d 1019 (Colo. 1984); People v. Washington, 865 P.2d 145 (Colo. 1994); People v. Holmes, 981 P.2d 168 (Colo. 1999); People v. Smith, 40 P.3d 1287 (Colo. 2002); People v. Reed, 56 P.3d 96 (Colo. 2002); People v. Crippen, 223 P.3d 114 (Colo. 2010).