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BRILLIANT.   BOLD.   EFFECTIVE.

Title 16. Criminal Proceedings; Article 5. Commencement of Criminal Action ( C.R.S. §§ 16-5-101 – 16-5-501) (current as of April 30, 2016)

§ 16-5-101. Commencement of prosecution

(1) Unless otherwise provided by law, a criminal action for violation of any statute may be commenced in one of the following ways:

(a) By the return of an indictment by a grand jury;
(b) By the filing of an information in the district court;
(c) By the filing of a felony complaint in the county court;
(d) Prosecution of a misdemeanor or petty offense may be commenced in the county court by:

(I) The issuance of a summons and complaint;
(II) The issuance of a summons following the filing of a complaint;
(III) The filing of a complaint following an arrest; or
(IV) The filing of a summons and complaint following arrest; or, in the event that the offense is a class 2 petty offense, by the issuance of a notice of penalty assessment pursuant to section 16-2-201.

(2) The procedures governing felony complaints filed in the county court and warrants or summons issued in connection therewith shall be in accordance with and as required by the applicable provisions of the rules of criminal procedure promulgated by the supreme court of Colorado.

(3) Where the offense charged is a misdemeanor or petty offense, the action may be commenced in the county court as provided in subsection (1) (d) of this section, and the issues shall then be tried in the county court. As to misdemeanors or petty offenses thus filed and tried in the county court, the simplified procedures enumerated in part 1 of article 2 of this title shall be applicable.

§ 16-5-102. Summons to corporate defendant

(1) When a corporation is charged with the commission of an offense, the court shall issue a summons setting forth the nature of the offense and commanding the corporation to appear before the court at a certain time and place.

(2) The summons for the appearance of a corporation may be served by a peace officer in the manner provided for service of summons upon a corporation in a civil action.

§ 16-5-103. Identity theft victims – definitions

(1) A person whose identifying information has been mistakenly associated with an arrest, summons, summons and complaint, felony complaint, information, indictment, or conviction is a victim of identity theft for the purposes of this section. A victim of identify theft may proceed either through the judicial process in subsection (2) of this section or the Colorado bureau of investigation process in subsection (3) of this section.

(2)

(a) If a criminal charge is not pending, a victim of identity theft may, with notice to the prosecutor, petition the court with jurisdiction over the arrest, summons, summons and complaint, felony complaint, information, indictment, or conviction to judicially determine the person’s factual innocence. Alternatively, the court, on its own motion, may make such a determination in the case. If a criminal charge is pending, the prosecuting attorney may request the court to make such a determination. A judicial determination of factual innocence made pursuant to this section may be determined, with or without a hearing, upon declarations, affidavits, or police reports or upon any other relevant, material, reliable information submitted by the parties and records of the court.
(b) If the court determines that there is no reasonable cause to believe that a victim of identity theft committed the offense for which the victim’s identity has been mistakenly associated with an arrest, summons, summons and complaint, felony complaint, information, indictment, or conviction, the court shall find the victim factually innocent of that offense. If the victim is found factually innocent, the court shall issue an order certifying this determination.
(c) After the court has determined that a person is factually innocent, the court shall provide the Colorado bureau of investigation with the order of factual innocence. Upon receipt of the order of factual innocence, the Colorado bureau of investigation shall modify the victim of identity theft’s law enforcement-only and public criminal history record accordingly.
(d)
A court that issues a determination of factual innocence pursuant to this section may at any time vacate that determination if the petition, or information submitted in support of the petition, contains material misrepresentation or fraud. If the court vacates a determination of factual innocence, the court shall issue an order rescinding any orders made pursuant to this subsection (2).

(2.5)

(a) A person who has had his or her identity stolen or used that is not associated with an arrest, summons, summons and complaint, felony complaint, information, indictment, or conviction may petition the district court in the county where the person lives for an order of factual innocence. A judicial determination of factual innocence made pursuant to this section may be determined, with or without a hearing, upon declarations, affidavits, or any other relevant, material, reliable information submitted by the parties and records of the court.
(b) If the court finds that the person’s identity was stolen or used by another, the court shall issue an order certifying this determination.
(c) A court that issues a determination of factual innocence pursuant to this subsection (2.5) may at any time vacate that determination if the petition, or information submitted in support of the petition, contains material misrepresentation or fraud. If the court vacates a determination of factual innocence, the court shall issue an order rescinding any orders made pursuant to this subsection (2.5).

(3)

(a) A victim of identity theft may contact the Colorado bureau of investigation and submit a records challenge to one or more criminal charges the victim of identity theft is alleged to have committed. The victim of identity theft shall include a copy of his or her fingerprints with the records challenge.
(b)

(I) A Colorado bureau of investigation fingerprint examiner shall compare the submitted fingerprints in the records challenge to the fingerprints obtained in each criminal case that the victim of identity theft is making a records challenge.
(II) The fingerprint examiner shall determine either that the fingerprints submitted in the records challenge are not the same as the individual arrested or that they are the same as the individual arrested.
(III) If the fingerprint examiner determines the fingerprints submitted in the fingerprint challenge are not the same as the individual arrested, the Colorado bureau of investigation shall issue a letter of misidentification and shall modify the victim of identity theft’s law enforcement-only and public criminal history record accordingly. The letter of misidentification shall state the holder of the letter is a victim of identity theft in each criminal case identified by the letter.

(4) A person who knows or reasonably suspects that his or her identifying information has been unlawfully used by another person may initiate a law enforcement investigation by contacting the local law enforcement agency that has jurisdiction over the victim’s residence or over the place where a crime was committed. Such agency shall take a police report of the matter, provide the complainant with a copy of that report, and begin an investigation of the facts. If the suspected crime was committed in a different jurisdiction, the local law enforcement agency may refer the matter to the local law enforcement agency where the suspected crime was committed for investigation of the facts.

(5) For the purposes of this section:

(a) “Biometric data” means data, such as fingerprints, voice prints, or retina and iris prints that capture, represent, or enable the reproduction of the unique physical attributes of an individual.
(b) “Identifying information” means information that, alone or in conjunction with other information, identifies an individual, including but not limited to such individual’s:

(I) Name;
(II) Address;
(III) Birth date;
(IV) Telephone, social security, taxpayer identification, driver’s license, identification card, alien registration, government passport, or checking, savings, or deposit account number;
(V) Biometric data;
(VI) Unique electronic identification device; and
(VII) Telecommunication identifying device.

(c) “Telecommunication identifying device” means a number, code, or magnetic or electronic device that enables the holder to use telecommunications technology to access an account; obtain money, goods, or services; or transfer funds.

§ 16-5-201. Indictments – allegations – form

Every indictment or accusation of the grand jury shall be deemed sufficient technically and correct which states the offense in the terms and language of the statute defining it, including either conjunctive or disjunctive clauses, or so plainly that the nature of the offense may be easily understood by the jury. Pleading in either the conjunctive or the disjunctive shall place a defendant on notice that the prosecution may rely on any or all of the alternatives alleged. The commencement of the indictment shall be in substance as follows:

Of the…….. term of the…….. court, in the year……… The grand jurors chosen, selected, and sworn, in and for the county of………., in the name and by the authority of the people of the state of Colorado, upon their oaths, present. (Here insert the offense, the name of the person charged, and the time and place of committing the same, with reasonable certainty.) Every indictment shall be signed by the foreman of the grand jury returning it and by the prosecuting attorney, his or her assistant, or his or her deputy.

§ 16-5-202. Requisites of information – form

(1) The information is sufficient if it can be understood therefrom:

(a) That it is presented by the person authorized by law to prosecute the offense;
(b) That the defendant is identified therein, either by name or by the defendant’s patterned chemical structure of genetic information, or described as a person whose name is unknown to the informant;
(c) That the offense was committed within the jurisdiction of the court or is triable therein;
(d) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction.

(2) The information may be in the following form:

STATE OF COLORADO)

)ss.

County of………………………………………….)

In the…….. Court…….. The People of the State of Colorado, against…….. A…….. B…….. C…….. D…….., district attorney within and for the………. judicial district of the state of Colorado, in the county of………. in the state aforesaid, in the name and by the authority of the people of the state of Colorado, informs the court that A…….. B…….. on the…….. day of……… A.D. 20…., at the said county of………., did (here state the offense) against the peace and dignity of the people of the state of Colorado.

C………………………………………D……………………………………..

District Attorney.

or C…………………..D………………….,District Attorney,

by H………………….M………………….,Deputy.

(3) An information may be filed using the language of the statute defining the offense, including either conjunctive or disjunctive clauses. Pleading in either the conjunctive or the disjunctive shall place a defendant on notice that the prosecution may rely on any or all of the alternatives alleged.

(4) A court shall not refuse to accept a complaint or information that contains the requirements of this section.

§ 16-5-203. Furnishing witnesses’ names

Whether a prosecution is commenced by indictment, information, or felony complaint, the district attorney shall make available to the defendant not later than twenty-one days after the defendant’s first appearance at the time of or following the filing of charges a written list of the names and addresses of the witnesses then known to the district attorney whom he or she intends to call upon at trial. The district attorney shall also furnish the defendant in writing prior to trial the names and addresses of any additional witnesses who have become known to him or her prior to trial and whom he or she intends to call upon at trial, but this shall not preclude the calling of witnesses whose names or the materiality of whose testimony are first learned by the district attorney upon the trial. However, the court may, in its discretion, enter an order that denies the disclosure to the defendant of the names and addresses of witnesses, or that requires the defense counsel not to disclose such information to the defendant, subject to rule 16 part I (d) (2) and part III (d) of the Colorado rules of criminal procedure. The names and addresses of witnesses who are the subject of the order may be withheld pending a ruling of the court, but the prosecution shall notify the defense counsel in writing that a motion to withhold witness information has been filed and that such information will be withheld pending the court’s order. Where the defendant has not had or waived a preliminary hearing, there shall be filed with the information the affidavit of some credible person verifying the information upon the personal knowledge of the affiant that the offense was committed.

§ 16-5-204. Witnesses before a grand jury – procedure

(1)

(a) Whenever a witness in any proceeding before any grand jury refuses, without just cause shown, to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording, or other material, the prosecuting attorney may submit an application to the court for an order directing the witness to show why the witness should not be held in contempt. After submission of such application and a hearing at which the witness may be represented by counsel, the court may, if the court finds that such refusal was without just cause, hold the witness in contempt and order the witness to be confined. Such confinement shall continue until such time as the witness is willing to give such testimony or provide such information; however, the court may release the witness from confinement if the court determines that further confinement will not cause the witness to give such testimony or provide such information. No period of such confinement shall exceed the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, and in no event shall such confinement exceed six months.
(b) If a witness has been confined in accordance with paragraph (a) of this subsection (1), he or she may, upon petition filed with the court, request a hearing to be held within fourteen days to review the contempt order at which hearing he or she shall have the right to be represented by counsel. The court, at the hearing, may rescind, modify, or affirm the order.
(c) In any proceeding conducted under this section, counsel may be appointed for a person financially unable to obtain adequate assistance.

(1.5)

(a) Upon verified application of the prosecuting attorney stating that a witness was lawfully served with a subpoena to appear and testify before the grand jury and that the witness failed to appear in accordance with such subpoena, the court shall issue a warrant commanding any peace officer to bring the witness without unnecessary delay before the court for a hearing on the matters set forth in the application and to determine whether the witness should be held in contempt pursuant to subsection (1) of this section.
(b) Upon issuance of the warrant, the court may fix an appropriate bond and direct, as a condition of the bond, that the witness appear on a date and at a time certain for the hearing.

(2) No person who has been imprisoned or fined by a court for refusal to testify or provide other information concerning any criminal incident or incidents in any proceeding before a grand jury impaneled before any district court shall again be imprisoned or fined for a subsequent refusal to testify or provide other information concerning the same criminal incident or incidents before any grand jury.

(3) Upon impanelment of each grand jury, the court shall give to such grand jury adequate and reasonable written notice of and shall assure that the grand jury reasonably understands the nature of:

(a) Its duty to inquire into offenses against the criminal laws of the state of Colorado alleged to have been committed;
(b) Its right to call and interrogate witnesses;
(c) Its right to request the production of documents or other evidence;
(d) The subject matter of the investigation and the criminal statutes or other statutes involved, if these are known at the time the grand jury is impaneled;
(e) The duty of the grand jury by an affirmative vote of nine or more members of the grand jury to determine, based on the evidence presented before it, whether or not there is probable cause for finding indictments and to determine the violations to be included in any such indictments; and
(f) The requirement that the grand jury may not find an indictment in cases of perjury unless at least two witnesses to the same fact present evidence establishing probable cause to find such an indictment.

(4)

(a) At the option of the prosecuting attorney, a grand jury subpoena may contain an advisement of rights. If the prosecuting attorney determines that an advisement is necessary, the grand jury subpoena shall contain the following advisement prominently displayed on the front of the subpoena:NOTICE

(I) You have the right to retain an attorney to represent you and to advise you regarding your grand jury appearance.
(II) Anything you say to the grand jury may be used against you in a court of law.
(III) You have the right to refuse to answer questions if you feel the answers would tend to incriminate you or to implicate you in any illegal activity.
(IV) If you cannot afford or obtain an attorney, you may request the court to appoint an attorney to consult with or represent you.

(b) Any witness who is not advised of his rights pursuant to paragraph (a) of this subsection (4) shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he testifies or any evidence he produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him in any court.

(c) Repealed.

(d) Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of such grand jury, and counsel may be present in the grand jury room with his client during such questioning. However, counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury.

(e) Once a grand jury has returned a no true bill based upon a transaction, set of transactions, event, or events, a grand jury inquiry into the same transaction or events shall not be initiated unless the court finds, upon a proper showing by the prosecuting attorney, that the prosecuting attorney has discovered additional evidence relevant to such inquiry.

(f) An authorized reporter shall be present at all grand jury sessions. All grand jury proceedings and testimony from commencement to adjournment shall be reported. The reporter’s notes and any transcripts which may be prepared shall be preserved, sealed, and filed with the court. No release or destruction of the notes or transcripts shall occur without prior court approval.

(g) Upon application by the prosecutor, or by any witness after notice to the prosecutor, the court, for good cause, may enter an order to furnish to that witness a transcript of his own grand jury testimony, or minutes, reports, or exhibits relating to them.

(h) Any witness summoned to testify before a grand jury, or an attorney for such witness with the witness’s written approval, shall be entitled, prior to testifying, to examine and copy at the witness’s expense any statement in the possession of the prosecuting attorney or the grand jury which such witness has made to any law enforcement or prosecution official or under an oath required by law that relates to the subject matter under inquiry by the grand jury. If a witness is proceeding in forma pauperis, he shall be furnished, upon request, a copy of such transcript and shall not pay a fee.

(i) No person subpoenaed to testify or to produce books, papers, documents, or other objects in any proceeding before any grand jury shall be required to testify or to produce such objects, or be confined as provided in this section, for his failure to so testify or produce such objects if, upon filing a motion and upon an evidentiary hearing before the court which issued such subpoena or a court having jurisdiction under this section, the court finds that:

(I) A primary purpose or effect of requiring such person to so testify or to produce such objects before the grand jury is or will be to secure testimony for trial for which the defendant has already been charged by information, indictment, or criminal complaint;
(II) Compliance with a subpoena would be unreasonable or oppressive;
(III) A primary purpose of the issuance of the subpoena is to harass the witness;
(IV) The witness has already been confined, imprisoned, or fined under this section for his refusal to testify before any grand jury investigating the same transaction, set of transactions, event, or events; or
(V) The witness has not been advised of his rights as specified in paragraph (a) of this subsection (4).

(j) Any grand jury may indict a person for an offense when the evidence before such grand jury provides probable cause to believe that such person committed such offense.

(k)The district court before which the indicted defendant is to be tried shall dismiss any indictment of the grand jury if such district court finds, upon the filing of a motion by the indicted defendant based upon the grand jury record without argument or further evidence, that the grand jury finding of probable cause is not supported by the record.

(l) Any person may approach the prosecuting attorney or the grand jury and request to testify or retestify in an inquiry before a grand jury or to appear before a grand jury. The prosecuting attorney or the grand jury shall keep a record of all denials of such requests to that prosecuting attorney or grand jury, including the reasons for not allowing such person to testify or appear. If the person making such request is dissatisfied with the decision of the prosecuting attorney or the grand jury, such person may petition the court for hearing on the denial by the prosecuting attorney or the grand jury. If the court grants the hearing, then the court may permit the person to testify or appear before the grand jury, if the court finds that such testimony or appearance would serve the interests of justice.

(m) The foreman, or acting foreman when designated by the court, of the grand jury may swear or affirm all witnesses who come before the grand jury.

(n) Any other motions testing the validity of the indictment may be heard by the court based only on the record and argument of counsel, unless there is cause shown for the need for additional evidence.

§ 16-5-205. Informations – authority to file – indictments – warrants and summons

(1) The prosecuting attorney may file an information in the court having jurisdiction over the offense charged, alleging that a person committed the criminal offense described therein. The court shall enter an order fixing the amount of bail, if the offense is bailable, and the amount of bail shall be endorsed upon any warrant issued for the arrest of the alleged offender. When a summons is issued instead of a warrant, no bail shall be fixed; except that, when a person is charged with an offense pursuant to section 42-2-138(1) (d) or 42-4-1301(1) or (2) (a), C.R.S., the court may enter an order fixing the amount of bail even if a summons is issued.

(2) Upon the return of an indictment by a grand jury, or the filing of an information, or the filing of a felony complaint in the county court, the prosecuting attorney shall request the court to order that a warrant shall issue for the arrest of the defendant, or that a summons shall issue and be served upon the defendant. If a warrant is requested upon an information or a felony complaint, the information or felony complaint must contain, or be accompanied by, a sworn written statement of facts establishing probable cause to believe that the criminal offense was committed as alleged by the person for whom the warrant is sought. In lieu of such sworn statement, the information or felony complaint may be supplemented by sworn testimony of such facts. Such testimony must be transcribed and then signed under oath by the witness giving the testimony.

(3) Except as otherwise provided in this article, any information, indictment, felony complaint, warrant, or summons shall comply with the requirements of applicable rules of criminal procedure adopted by the supreme court of Colorado. Any procedures connected with service of summons, the arrest and detention of an alleged offender upon a warrant, and the duties of the arresting officer relating to the summons or arrest, not specifically set forth in this code, shall be as provided by the applicable rules of criminal procedure adopted by the supreme court of Colorado.

(4) Repealed.

§ 16-5-206. Summons in lieu of warrant (Effective Until 8/10/2016)

(1) Except in class 1, class 2, and class 3 felonies, level 1 and level 2 drug felonies, and in unclassified felonies punishable by a maximum penalty of more than ten years, if an indictment is returned or an information, felony complaint, or complaint has been filed prior to the arrest of the person named as defendant therein, the court has power to issue a summons commanding the appearance of the defendant in lieu of a warrant for his or her arrest unless a law enforcement officer presents in writing a basis to believe there is a significant risk of flight or that the victim or public safety may be compromised.
(2) If a summons is issued in lieu of a warrant under subsection (1) of this section:

(a) It shall be in writing.
(b) It shall state the name of the person summoned and his address.
(c) It shall identify the nature of the offense.
(d) It shall state the date when issued and the county where issued.
(e) It shall be signed by the judge or clerk of the court with the title of his office.
(f) It shall command the person to appear before the court at a certain time and place.

(3) A summons issued under this section may be served in the same manner as the summons in a civil action or by mailing it to the defendant’s last-known address by certified mail with return receipt requested not less than fourteen days prior to the time the defendant is requested to appear. Service by mail is complete upon the return of the receipt signed by the defendant.

(4) If any person summoned under this section fails to appear as commanded by the summons, the court shall forthwith issue a warrant for his arrest.

§ 16-5-207. Standards and criteria relating to issuance of summons in lieu of warrant

(1) A summons shall be issued instead of a warrant in all petty offenses, class 3 misdemeanors, and all unclassified offenses which are punishable by a maximum penalty of six months’ imprisonment or less, except in those cases where the court finds that:

(a) The defendant has previously failed to respond to a summons for an offense; or
(b) There is a substantial likelihood that the defendant will not respond to a summons; or
(c) The whereabouts of the defendant is unknown and the issuance of an arrest warrant is necessary in order to subject him to the jurisdiction of the court.

(2) Except in class 1, class 2, and class 3 felonies or level 1 or level 2 drug felonies, the general policy shall favor issuance of a summons instead of a warrant for the arrest of the defendant except where there is reasonable ground to believe that, unless taken into custody, the defendant will flee to avoid prosecution or will fail to respond to a summons. The court shall issue a summons instead of an arrest warrant when the prosecuting attorney so requests. When an application is made to a court for issuance of an arrest warrant or summons, the court may require the applicant to provide such information as reasonably is available concerning the following:

(a) The defendant’s residence;
(b) The defendant’s employment;
(c) The defendant’s family relationships;
(d) The defendant’s past history of response to legal process; and
(e) The defendant’s past criminal record.

§ 16-5-208. Information not filed – reasons

In all cases where on preliminary hearing in the county court concerning the commission of a felony the accused is bound over and is committed to jail, or recognized and held to bail, it is the duty of the district attorney to file an information in the district court. If the district attorney determines in any such case that an information ought not to be filed, he or she shall file with the clerk of the district court having jurisdiction of the supposed offense a written statement containing his or her reasons, in fact and in law, for not filing an information in the case, and such statement shall be filed within sixty-three days following the date upon which the offender was held for appearance.

§ 16-5-209. Judge may require prosecution

The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If after that proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so. The judge shall appoint the special prosecutor from among the full-time district attorneys, assistant district attorneys, or deputy district attorneys who serve in judicial districts other than where the appointment is made; except that, upon the written approval of the chief justice of the supreme court, the judge may appoint any disinterested private attorney who is licensed to practice law in the state of Colorado to serve as the special prosecutor. Any special prosecutor appointed pursuant to this section shall be compensated as provided in section 20-1-308, C.R.S.

§ 16-5-301. Preliminary hearing or waiver – dispositional hearing

(1)

(a) Every person accused of a class 1, 2, or 3 felony or level 1 or level 2 drug felony by direct information or felony complaint has the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant. In addition, only those persons accused of a class 4, 5, or 6 felony by direct information or felony complaint which felony requires mandatory sentencing or is a crime of violence as defined in section 18-1.3-406, C.R.S., or is a sexual offense under part 4 of article 3 of title 18, C.R.S., shall have the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant. The procedure to be followed in asserting the right to a preliminary hearing and the time within which demand therefor must be made, as well as the time within which the hearing, if demanded, shall be had, shall be as provided by applicable rule of the supreme court of Colorado. A failure to observe and substantially comply with such rule shall be deemed a waiver of this right to a preliminary hearing.
(b)

(I) No person accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony by direct information or felony complaint, except those which require mandatory sentencing or which are crimes of violence as defined in section 18-1.3-406, C.R.S., or which are sexual offenses under part 4 of article 3 of title 18, C.R.S., shall have the right to demand or receive a preliminary hearing; except that such person shall participate in a dispositional hearing for the purposes of case evaluation and potential resolution.
(II) Any defendant accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony who is not otherwise entitled to a preliminary hearing pursuant to subparagraph (I) of this paragraph (b), may demand and shall receive a preliminary hearing within a reasonable time pursuant to paragraph (a) of this subsection (1), if the defendant is in custody for the offense for which the preliminary hearing is requested; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the defendant has been released from custody prior to the preliminary hearing.
(III) The chief justice of the Colorado supreme court is encouraged to promulgate rules defining the term “dispositional hearing” for purposes of this paragraph (b), section 18-1-404(2), C.R.S., and section 19-2-705 (1.5), C.R.S.

(2) If a person is accused of an unlawful sexual offense classified as a felony, upon the request of any party to the proceeding, the court may exclude from the preliminary hearing any member of the general public. In making a ruling for exclusion, the court shall:

(a) Set forth sufficient findings of fact and conclusions of law to support the order; and
(b) Make its order sufficiently narrow to protect the requesting party’s compelling interest considering any reasonable alternative to exclusion for the entire hearing of all members of the general public.

(3) The court may exempt a victim’s advocate from any order entered pursuant to subsection (2) of this section. For the purposes of this section, “victim’s advocate” means any person whose regular or volunteer duties include the support of an alleged victim of physical or sexual abuse or assault.

§ 16-5-401. Limitation for commencing criminal proceedings and juvenile delinquency proceedings

(1)

(a) Except as otherwise provided by statute applicable to specific offenses, delinquent acts, or circumstances, no adult person or juvenile shall be prosecuted, tried, or punished for any offense or delinquent act unless the indictment, information, complaint, or petition in delinquency is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant or juvenile within the period of time after the commission of the offense or delinquent act as specified below:

Murder, kidnapping, treason, any sex offense against a child, and any forgery regardless of the penalty provided: No limit

Attempt, conspiracy, or solicitation to commit murder; attempt, conspiracy, or solicitation to commit kidnapping; attempt, conspiracy, or solicitation to commit treason; attempt, conspiracy, or solicitation to commit any sex offense against a child; and attempt, conspiracy, or solicitation to commit any forgery regardless of the penalty provided: No limit

Vehicular homicide, except as described in paragraph (a.5) of this subsection (1); leaving the scene of an accident that resulted in the death of a person: Five years

Other felonies: Three years

Misdemeanors: Eighteen months

Class 1 and 2 misdemeanor traffic offenses: One year

Petty offenses: Six months

(a.5) The period of time during which an adult person or juvenile may be prosecuted for the offense of vehicular homicide, as described in section 18-3-106, C.R.S., and leaving the scene of an accident that resulted in the death of a person, as described in section 42-4-1601(2) (c), C.R.S., when both offenses are alleged to have occurred as part of the same criminal episode in the same indictment, information, complaint, or petition in delinquency filed in a court of competent jurisdiction is ten years.
(b) Repealed.
(c) For purposes of this section:

(I) “Delinquent act” has the same meaning as defined in section 19-1-103(36), C.R.S.
(II) “Juvenile” means a child as defined in section 19-1-103(18), C.R.S.
(III) “Petition in delinquency” means any petition filed by a district attorney pursuant to section 19-2-512, C.R.S.
(IV) “Sex offense against a child” means any “unlawful sexual offense”, as defined in section 18-3-411(1), C.R.S., that is a felony.

(1.5)

(a) Except as otherwise provided in paragraph (b) of this subsection (1.5), the provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children shall apply to offenses and delinquent acts committed on or after July 1, 1996.
(b) The provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children shall apply to an offense or delinquent act committed before July 1, 1996, if the applicable statute of limitations, as it existed prior to July 1, 2006, has not yet run on July 1, 2006.
(c) It is the intent of the general assembly in enacting the provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children to apply an unlimited statute of limitations to sex offenses against children committed on or after July 1, 1996, and to sex offenses against children committed before July 1, 1996, for which the applicable statute of limitations in effect prior to July 1, 2006, has not yet run on July 1, 2006.

(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)

(a) 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.
(b)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 filed in a court without jurisdiction, when based on a reasonable belief the court possesses jurisdiction.

(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 or by the “Colorado Securities Act”, article 51 of title 11, C.R.S., starts at the time when the last act in the series of acts is committed.

(4.5) The period within which a prosecution must be commenced begins to run upon discovery of the criminal act or the delinquent act for:

(a) Offenses relating to the “Uniform Commercial Code”, pursuant to part 5 of article 5 of title 18, C.R.S.;
(b) Computer crime, pursuant to article 5.5 of title 18, C.R.S.;
(c) Theft, pursuant to section 18-4-401, C.R.S.;
(d) Theft of trade secrets, pursuant to section 18-4-408, C.R.S.;
(e) Defacing or destruction of written instruments, pursuant to section 18-4-507, C.R.S.;
(f) Criminal simulation, pursuant to section 18-5-110, C.R.S.;
(g) Obtaining signature by deception, pursuant to section 18-5-112, C.R.S.;
(h) Criminal impersonation, pursuant to section 18-5-113, C.R.S.;
(i) Offering a false instrument for recording, pursuant to section 18-5-114, C.R.S.;
(j) Dual contracts to induce loan, pursuant to section 18-5-208, C.R.S.;
(k) Issuing a false financial statement or obtaining a financial transaction device by false statements, pursuant to section 18-5-209, C.R.S.;
(l) Unlawful activity concerning the selling of land, pursuant to section 18-5-302, C.R.S.;
(m) Offenses relating to equity skimming, pursuant to part 8 of article 5 of title 18, C.R.S.;
(m.5) Offenses relating to identity theft, pursuant to part 9 of article 5 of title 18, C.R.S.;
(n) Offenses relating to bribery and corrupt influences, pursuant to part 3 of article 8 of title 18, C.R.S.;
(o) Offenses relating to abuse of public office, pursuant to part 4 of article 8 of title 18, C.R.S.;
(p) Offenses relating to perjury, pursuant to part 5 of article 8 of title 18, C.R.S.;
(q) Offenses relating to the “Colorado Organized Crime Control Act”, pursuant to article 17 of title 18, C.R.S.;
(r) Unlawful concealment of transactions, pursuant to section 11-107-105, C.R.S.;
(s) Embezzlement or misapplication of funds, pursuant to section 11-107-107, C.R.S.;
(t) Unlawful acts or omissions relating to financial institutions, pursuant to section 11-107-108, C.R.S.;
(u) Repealed.
(v) Criminal offenses relating to savings and loan associations, pursuant to section 11-41-127, C.R.S.; and
(w) Criminal offenses relating to securities fraud, pursuant to part 5 of article 51 of title 11, C.R.S.

(5) The period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional three years as to any offense or delinquent act charged under sections 18-8-302, 18-8-303, 18-8-306, 18-8-307, 18-8-402, 18-8-406, 18-8-407, 39-21-118, and 39-22-621(3), C.R.S.

(6) Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children, the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional seven years as to any offense or delinquent act charged under section 18-3-402 or 18-6-403, C.R.S., or charged as criminal attempt, conspiracy, or solicitation to commit any of the acts specified in said sections.

(7)When the victim at the time of the commission of the offense or delinquent act is a child under fifteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional three years and six months as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor.

(8)

(a) Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children and except as otherwise provided in paragraphs (a.3) and (a.5) of this subsection (8), the period of time during which an adult person or juvenile may be prosecuted shall be ten years after the commission of the offense or delinquent act as to any offense or delinquent act:

(I) Charged under section 18-3-402, C.R.S., section 18-3-403, C.R.S., as said section existed prior to July 1, 2000, or section 18-6-403, C.R.S.;
(II) Charged as a felony under section 18-3-404, C.R.S.; or
(III) Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraphs (I) and (II) of this paragraph (a).

(a.3) Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children, if the victim at the time of the commission of an offense or delinquent act is a child under eighteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be ten years after such victim reaches the age of eighteen years as to any offense or delinquent act:

(I) Charged as a felony under section 18-3-402, C.R.S., section 18-3-403, C.R.S., as said section existed prior to July 1, 2000, or section 18-3-404, C.R.S.; or
(II) Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (I) of this paragraph (a.3).

(a.5) Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children, in any case in which the identity of the defendant or juvenile is determined, in whole or in part, by patterned chemical structure of genetic information, and in which the offense has been reported to a law enforcement agency, as defined in section 26-1-114(3) (a) (III) (B), C.R.S., within ten years after the commission of the offense, there shall be no limit on the period of time during which a person may be prosecuted after the commission of the offense as to any offense or delinquent act charged:

(I) Under section 18-3-402, C.R.S.;
(II) Under section 18-3-403, C.R.S., as said section existed prior to July 1, 2000;
(III) Under any other criminal statute if the offense is a felony or would be a felony if committed by an adult and is based on the same act or series of acts arising from the same criminal episode as the offense or delinquent act charged in subparagraph (I) of this paragraph (a.5); except that this subparagraph (III) does not apply if the court finds that there is no probable cause for the offense or delinquent act charged in subparagraph (I) of this paragraph (a.5); or
(IV) As criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (I), (II), or (III) of this paragraph (a.5).

(b) This subsection (8) shall apply to offenses and delinquent acts committed on or after July 1, 1984; except that subparagraph (III) of paragraph (a.5) of this subsection (8) applies to offenses and delinquent acts committed on or after July 1, 2011.

(9) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be five years after the commission of the offense or delinquent act as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor. This subsection (9) shall apply to offenses and delinquent acts committed on or after January 1, 1986.

(10) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be three years after the date of the affected election as to a charge of any violation of any provision of the “Fair Campaign Practices Act”, article 45 of title 1, C.R.S., or any criminal attempt, conspiracy, or solicitation to violate any provision of the “Fair Campaign Practices Act”. This subsection (10) shall apply to offenses and delinquent acts committed on or after July 1, 1991.

(11) Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be three years after the discovery of the offense or delinquent act as to any offense or delinquent act charged under section 18-4-408, C.R.S. This subsection (11) shall apply to offenses and delinquent acts committed on or after July 1, 1998.

(12) The applicable period of limitations specified in subsection (1) of this section shall not apply to charges of offenses or delinquent acts brought to facilitate the disposition of a case, or to lesser included or non-included charges of offenses or delinquent acts given to the court or a jury at a trial on the merits, by the accused.

§ 16-5-401.1. Legislative intent in enacting section 16-5-401 (6) and (7)

(1) The intent of the general assembly in enacting section 16-5-401(6) and (7) in 1982 was to create a ten-year statute of limitations as to offenses and delinquent acts specified in said subsections committed on or after July 1, 1979.

(2) (Deleted by amendment, L. 94, p. 1050, §4, effective July 1, 1994.)

§ 16-5-402. Limitation for collateral attack upon trial judgment

(1) Except as otherwise provided in subsection (2) of this section, no person who has been convicted as an adult or who has been adjudicated as a juvenile under a criminal statute of this or any other state of the United States shall collaterally attack the validity of that conviction or adjudication unless such attack is commenced within the applicable time period, as provided in this subsection (1), following the date of said conviction, or for purposes of juvenile adjudication the applicable time period will begin at the time of the juvenile’s eighteenth birthday:All class 1 felonies:No limit

All other felonies:Three years

Misdemeanors:Eighteen months

Petty offenses:Six months

(1.5) If an appellate court can determine on the face of the motion, files, and record in a case that a collateral attack is outside the time limits specified in subsection (1) of this section, the appellate court may deny relief on that basis, regardless of whether the issue of timeliness was raised in the trial court.

(2) In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (1) of this section shall be:

(a) A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the subject matter of the alleged offense;
(b) A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the person of the defendant or juvenile;
(c) Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the defendant or juvenile to an institution for treatment as a person with a mental illness; or
(d) Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.

(3) Repealed.
(4) For purposes of this section:

(a) “Adjudication”, except as used in paragraph (c) of subsection (2) of this section, includes “adjudicated” and has the same meaning as defined in section 19-1-103(2), C.R.S.
(b) “Juvenile” means a child as defined in section 19-1-103(18), C.R.S.

§ 16-5-501. Prosecuting attorney – incarceration – legal representation and supporting services at state expense [Repealed]

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