faq

The following is a step-by-step description of the most common parts of a felony case. The corresponding information advises you on how to protect your constitutional rights. Part of our job as criminal trial attorneys is helping the accused understand how the law works.

STOPS AND SEARCHES – The police can stop you and search you under the right circumstances. This may occur during a traffic stop or while you are walking down the street. The police can also search your home. However, the United States and Colorado constitutions protect us from “unreasonable” searches. Figuring out whether a stop or a search is illegal depends on the facts of your case. 

Keep in mind that stops and searches mean the police are looking for evidence to use against you. If the police ask your permission to search your car or your person or your house, say “no”. Sometimes police will present you with a search warrant – a document signed by a judge allowing the police to search a specific place, like your car or home. If this is the case, you must consent to a search. If the police do not show you a warrant, then do not consent to a search. 

You never have to answer any questions the police ask. Be polite, and ask the officer if you are under arrest. If the officer says you are not, ask to be on our way. If the police will not let you leave, then politely say, “I want an attorney.”

ARREST – The difference between a “stop” and an “arrest” is sometimes very small, but often has important implications for your case. Sometimes an arrest is found to have occurred even though the person was never taken to the police station and booked. 

If it is an arrest, certain constitutional protections are activated at the moment of arrest. The police are supposed to tell you about your rights – often called Mirandizing the arrested person – the moment they arrest you. The officer should say something like, “You have the right to remain silent, anything you say can be used against you in a court of law, you have the right to an attorney, and if you are indigent the court will appoint an attorney to represent you.” 

Immediately telling the police you want an attorney and then not speaking is the best way to protect yourself. The only thing you should say to the police is, “I want an attorney.”

BOOKING – Booking occurs following an arrest and almost always before felony charges are filed. The police take you to a station. You will be asked a series of questions, fingerprinted, photographed, searched, and all your personal possessions will be catalogued and stored until your release. 

Although this administrative procedure seems innocent enough, it is actually a dangerous time for someone who has been arrested, but not charged. At this point you are only a suspect, but answers to even some of the most innocent questions may make you appear guilty. 

Further, standard booking questions are exempt from the Miranda requirements. For instance, age is an important element of some crimes and you will be asked your age during booking. 

If at all possible you should have an attorney present during booking. Ask a friend to call an attorney or ask the police for a phone call before you are booked.

INVESTIGATION VS PROSECUTION – In every felony case, the district attorney decides if there is enough evidence to support a prosecution. A police investigation usually leads up to this point. The investigation can be a stop, search, or arrest as discussed above. 

However, the police sometimes investigate a person in secret until they have enough evidence to support an arrest warrant or search warrant. If you think you are being investigated, you should contact an attorney immediately. The investigation is a pivotal time. If the police cannot find enough evidence, the district attorney will not file charges against you. 

FILING OF CHARGES – Once the district attorney decides to file charges, they can file a document titled “Information and Complaint” alleging facts that amount to the commission of a crime. The district attorney can also file charges based on a grand jury indictment – where a jury determines if there is enough evidence to support the charges – but this is rare. Felony charges are usually filed by information and complaint.

ARRAIGNMENT AND ENTRY OF PLEA – Following arrest and booking, the court must conduct an arraignment in open court. The purpose of the arraignment is to formally inform you of your charges and for you to enter a plea. You should never enter a plea without first talking to an attorney about your case. Inform the judge that you need to retain counsel and the judge will usually postpone your plea entry.

There are different pleas you can enter. “Guilty” which means you admit to the facts of the crime and that you are the one who committed the crime, “Not Guilty” which means you deny that you committed the crime, and “No Contest” which means that you do not admit guilt, but you will not dispute the charge. If you are forced to enter a plea before you have consulted an attorney, enter a plea of “Not Guilty” and then consult an attorney as soon as possible.

If you are in jail at the time of your arraignment, the judge should set bail, deny bail, or release you on your own recognizance – meaning the court takes your word that you will return for your next court date. If the judge does not say anything about bail, just request that bail be set or that you be released on your own recognizance. Be careful though. Anything you say to the court regarding bail can be used against you.

BAIL AND BOND – Obviously, you do not want to spend any more time in jail than necessary. Aside from the personal inconvenience, statistics show that a person’s chances of lenient treatment at sentencing are reduced significantly when they have prolonged jail stays. 

While awaiting trial, everyone can get out of jail on bail with limited exceptions. Bail is the amount of money paid to the court for your release while you await trial. The money will be returned once your case ends – assuming you have not violated the terms of your bail. This generally means you have been present at all required court dates.

Bail can be paid with cash or by pledging real property (land or house titles) to the court. If you cannot afford bail, your attorney can file a motion to reduce your bail or release you on your own recognizance. As a last resort you may have to use a bail bondsman – someone who is licensed by the state and who will pledge their property to cover your bail.

PRE-TRIAL AND THE RIGHT TO A SPEEDY TRIAL – Pretrial is the time after you are charged, but before your criminal court case begins. Everyone has the right to a speedy trial. Colorado law requires that a trial begin no more than six months after entry of a not guilty plea. 

If the speedy trial deadline is violated the case must be dismissed. However, there are exceptions to the six month requirement that could allow your trial to be delayed even more. You can also agree to waive your right to a speedy trial. Sometimes – depending on your case – your attorney will advise that waiving speedy trial is in your best interest. 

During the six months before your trial, you will work with your attorney to review the evidence, pursue opportunities to have the criminal court case dismissed, possibly file motions to exclude certain evidence, litigate the motions hearings, and negotiate the possibility of a plea agreement.

PRELIMINARY HEARING – A preliminary hearing is available to all persons charged with a class one, two or three felony and, under special circumstances, for lower felonies. A preliminary hearing determines if the government has enough evidence to show probable cause to believe that a crime has been committed and to believe that the person charged is the person who committed the crime. This is different from trial, where the district attorney has to prove beyond a reasonable doubt that you are guilty. 

Your attorney must request a preliminary hearing within 10 days of your plea entry or you will have waived your right to the hearing. As a general rule, a preliminary hearing is a good way to protect your rights. You learn about the government’s case against you. If the government does not have enough evidence, having the case dismissed is a possibility.

PLEA AGREEMENT VS TRIAL – One of the most important decisions your criminal trial attorney will help you make is whether to take your case to trial or accept a plea agreement. Taking your case to trial can be a risky proposition, but sometimes it is the right decision. Every case is different. 

Although a plea agreement is offered in almost every case, the district attorney is not obligated to do so. The plea agreement is like a contract, stating that if you agree to accept the listed punishment, your case will be over and your sentence will begin. Generally, to encourage acceptance and avoid the risk of losing at trial, a plea agreement provides a benefit – like letting you plead to a lesser crime with lower penalties. 

Many factors can impact a plea agreement decision. Your attorney will help you consider all of them. Sometimes it is worth accepting and sometimes it is not a fair offer. Your attorney can always press the district attorney for a better offer, but if a fair plea agreement cannot be reached, trial may be your best option.

TRIAL – Every phase of the felony legal process is vitally important, but trial is where the rubber meets the road. This is where all the pre-trial preparations and strategy come together. 

In a felony case you have the right to a jury trial. You can waive your right to a jury trial, but your attorney must file a written waiver. To be found guilty by a jury there must be a unanimous verdict – not even one juror can disagree. Colorado law provides for a jury of 12 people in felony cases, so it will always be to your advantage to utilize a jury trial. 

You will be present for every part of your trial except when the jury deliberates. Your criminal court case starts with jury selection. Both your attorney and the district attorney are allowed to ask a group of potential jurors questions in order to determine if the people can be fair jurors. Once the jury is selected and sworn, the judge reads your charges to the jury. 

Then both sides will make opening statements, first the prosecution and then your attorney. The district attorney then presents the case against you by calling witnesses to testify and introducing evidence to the jury. Your attorney will cross-examine the witnesses after the district attorney has questioned them. This is called the “prosecution’s case-in-chief.”

Once the prosecution is done presenting their case, your attorney may make some special motions to the court. Next, your attorney will present your evidence to the jury in an attempt to give the jury a fuller picture of the case or to discredit evidence presented by the district attorney. This phase of trial occurs in the same way the prosecution’s case was presented, except your attorney calls witnesses and the district attorney cross-examines them.

You have the right to testify at trial and you have the right not to testify. Often your attorney will advise you not to testify because there will be no advantage to gain from your testimony. The judge will make sure you understand your rights regarding testimony. He will also advise the jury that if you choose not to testify, they cannot use your decision as evidence of guilt.

Following the presentation of all your evidence, your attorney may make more special motions. The judge will instruct the jury on the laws involved in your case. Each side will make a closing argument, first the district attorney and then your attorney. The district attorney has the last word in what is called a “rebuttal argument” where they respond to your closing argument. The jury leaves the courtroom and begins deliberations. When the jury reaches a verdict they return to the courtroom and the judge announces the verdict. Felony trials usually take at least a day, but often last much longer.

FELONY SENTENCING – Sentencing is often the bottom line when it comes to making some of the important decisions throughout your case. If you are being sentenced, then you have either accepted a plea agreement or been convicted following a trial. 

If you accepted a plea agreement, some of the more important components of your sentence – years in prison – may have been predetermined and the judge will only decide issues like your fine and restitution. If you were convicted following a trial, the judge has control over all components of your sentence, but within certain guidelines established under Colorado law.

Possible prison sentences include the following: 

• Class one felony –  life imprisonment 
• Class two felony – 8-24 years 
• Class three felony – 4-12 years 
• Class four felony – 2-6 years 
• Class five felony – 1-3 years 
• Class six felony – 1-1.5 years. 

Depending on your charges or the special circumstances of your case, higher or lower sentencing ranges may apply. Determining your possible sentence can be a complex calculation and demands the attention of an attorney.

Prior to a felony sentencing hearing, the probation department will file a presentence investigation report with the court. It recommends how the court should sentence you. The probation department will want to interview you. Depending on your situation, this might not be in your best interest. You must consult with your attorney before making any statements to the probation department. 

The sentencing hearing itself has relaxed rules of evidence. The judge will listen to anything he or she decides is helpful in forming a decision. The district attorney and your attorney will make arguments to the court about what a fair sentence would be in your case. At the end of the hearing, the judge will issue a ruling stating the reasons for his or her decision and exactly what your sentence will be.

APPEALS – An appeal is not a second trial. It is a chance to explain to the court of appeals that the trial court did something unconstitutional during your trial or sentencing. It also explains how the court of appeals can fix the problem. 

Anyone convicted of a felony in a Colorado state court has the right to appeal the conviction. 

To initiate an appeal you must file a notice of appeal within 49 days of the final order. This will usually be 49 days from your sentencing hearing. All felony appeals are heard by the Colorado Court of Appeals.

You make your case by filing a brief – a legal document that explains important facts about your case. Essentially it presents a legal argument. Sometimes you will need to participate in oral arguments before Court of Appeals judges in support of the brief. It is better to have an attorney write and file your brief and make the oral arguments on your behalf. The government usually files a brief in opposition to your brief. If oral arguments occur, the government will argue against your appeal.

If the court of appeals denies your appeal, you can then file your appeal with the Colorado Supreme Court requesting that a similar process occur, but the Colorado Supreme Court only accepts a small percentage of the cases that are filed. 

Appeals involve technical and complex legal arguments and have a very low chance of success. Nonetheless, your best chance of success is with an experienced criminal appellate attorney.

POST-CONVICTION MOTIONS – A post-conviction motion is a motion to the trial court filed after you have been convicted. It requests that the trial court do one or more of the following: 

1. Correct your sentence because it is illegal – meaning that the laws at the time you were sentenced do not allow your sentence in its current form – often called a 35(A) motion. 
2. Reduce your sentence because you have shown through rehabilitation and good behavior that a lesser sentence is more appropriate, often called a 35(B) motion.  
3. Vacate your conviction because your constitutional rights were violated due to the way your trial or sentencing was handled, often called a 35(C) motion.

Everything about post-conviction motions is highly technical and can cause problems for those without legal training. Your right to file a post-conviction motion and the strategy on how best to do so is governed by complex statutes. If you want to pursue post-conviction remedies, you should consult an attorney as soon as you can after your sentencing hearing.

Many steps of a misdemeanor case are the same. Seek out an attorney as early in the process as possible for the best outcome. Steps of the process that are different for misdemeanor cases include: 

MISDEMEANOR TRIAL – In a misdemeanor or petty case, you have the right to a jury trial. A jury trial is not automatic when the maximum possible penalty in your case is less than six months in jail. You have to request a jury trial. Otherwise your trial will be heard and guilt or innocence determined only by the judge. 

In a misdemeanor case, you have the right to a six person jury. In a petty offense case you have the right to a three person jury, but can request a six person jury. To be found guilty by a jury, the verdict must be unanimous. It will always be to your advantage to request a jury trial.

You will be present for every part of your trial except when the jury deliberates. Your misdemeanor trial begins with jury selection. Both your attorney and the district attorney are allowed to ask questions of potential jurors to determine if they can be objective. Once the jury is selected and sworn in, the judge reads them the charges against you.

First the prosecution makes an opening statement and then your attorney does. The district attorney then calls witnesses to testify and introduces evidence in his or her case against you. He or she will question the witnesses and then your attorney can cross-examine. This is called the “prosecution’s case-in-chief.” Your attorney may make some special motions to the court, once the prosecution is done presenting his or her case.

Next, your lawyer will present favorable evidence to the jury about your case. In so doing, he or she may also discredit evidence previously presented by the district attorney. This phase of trial occurs in the same way the prosecution’s case was presented, except your attorney calls witnesses and the district attorney cross-examines them.

You have the right to testify at trial and you also have the right to remain off the stand. Often your attorney will advise you not to testify because seeing that there is no advantage for the jury to hear from you directly. The presiding judge will make sure you understand your rights in this regard. The judge will also emphasize to the jury that your not testifying must not be perceived as an indication of guilt.

Following the presentation of all your evidence, your defense lawyer may make some more special motions. The judge will then instruct the jury on the specific laws applicable in your case. The prosecution and then the defense will each make closing arguments. Finally, in what is called a “rebuttal argument” the district attorney gets to have the very last word. This argument is in response to your attorney’s closing argument. 

The jury then leaves the courtroom and starts deliberations. When the jury reaches a decision, they return to the courtroom and the judge announces their verdict. Misdemeanor and petty offense trials usually take less than a day.

MISDEMEANOR SENTENCING 

If you accepted a plea agreement, some of the more important components of your sentence – like jail time – may have been predetermined and the judge will only decide issues like your fine and restitution. If you were convicted following a trial, the judge has control over all components of your sentence, but within certain guidelines established under Colorado law.

Possible jail sentences include the following: 

1. Class one misdemeanor – 6-18 months
2. Class two misdemeanor – 3-12 months
3. Class three misdemeanor or class one petty offense – 0-6 months. 

Depending on your charges or the special circumstances of your case, shorter or longer sentencing ranges may apply. Determining your possible sentence can be a complex calculation and requires the attention of an experienced Colorado attorney.

Prior to a sentencing hearing, the probation department will file a pre-sentence investigation report with the court. It recommends how the court should sentence you. The probation department will want to interview you. Depending on your situation, this might not be in your best interest. You must consult with your attorney before making any statements to the probation department.

The sentencing hearing itself has relaxed rules of evidence. The judge will listen to anything he or she deems might be helpful in forming a decision.You can also make a statement to the court. Your attorney will help you make that decision. 

The district attorney and your attorney will make arguments to the court about what a fair sentence would be. At the end of the hearing, the judge will issue a ruling stating exactly what your sentence will be and the specific reasons for his or her decision.

APPEALS – An appeal is not a second trial. It is a chance to explain to the court of appeals that the trial court did something unconstitutional during your trial or sentencing. It also explains how the court of appeals can fix the problem. 

Anyone convicted of a misdemeanor in a Colorado state court has the right to appeal the conviction. 

To initiate an appeal on a misdemeanor conviction you must file a notice of appeal within 35 days of the final order. This will usually be 35 days from your sentencing hearing. All misdemeanor appeals are heard by the Colorado District Court.

You make your case by filing a brief – a legal document that explains important facts about your case. Essentially it presents a legal argument. Sometimes you will need to participate in oral arguments before the District Court in support of the brief. It is better to have an attorney write and file your brief and make the oral arguments on your behalf. The government usually files a brief in opposition to your brief. If oral arguments occur, the government will argue against your appeal.

If the District Court denies your appeal, you can then file your appeal with the Colorado Supreme Court requesting that a similar process occur, but the Colorado Supreme Court only accepts a small percentage of the cases that are filed. 

Appeals involve technical and complex legal arguments and have a very low chance of success. Nonetheless, your best chance of success is with an experienced criminal appellate attorney.

POST-CONVICTION MOTIONS – A post-conviction motion is a motion to the trial court filed after you have been convicted. It requests that the trial court do one or more of the following: 

1. Correct your sentence because it is illegal – meaning that the laws at the time you were sentenced do not allow your sentence in its current form – often called a 35(A) motion. 
2. Reduce your sentence because you have shown through rehabilitation and good behavior that a lesser sentence is more appropriate, often called a 35(B) motion.  
3. Vacate your conviction because your constitutional rights were violated due to the way your trial or sentencing was handled, often called a 35(C) motion.

Everything about post-conviction motions is highly technical and can cause problems for those without legal training. Your right to file a post-conviction motion and the strategy on how best to do so is governed by complex statutes. If you want to pursue post-conviction remedies, you should consult an attorney as soon as you can after your sentencing hearing.