Colorado § 16-12-101 - Review of proceedings resulting in conviction.

§ 16-12-101. Review of proceedings resulting in conviction.

Every person convicted of an offense under the statutes of this state has the right of appeal to review the proceedings resulting in conviction. The procedures to be followed in any such appeal shall be as provided by applicable rule of the supreme court of Colorado.

Source: L. 72: R&RE, p. 253, § 1. C.R.S. 1963: § 39-12-101.

ANNOTATION

Law reviews. For note, "Former Jeopardy — Effect of State's Appeal in Colorado", see 24 Rocky Mt. L. Rev. 94 (1951). For article, "Colorado Criminal Procedure — Does It Meet Minimum Standards?", see 28 Dicta 14 (1951). For article, "Criminal Law", see 32 Dicta 409 (1955). For article, "Post-Conviction Remedies in Colorado Criminal Cases", see 31 Rocky Mt. L. Rev. 249 (1961). For note, "One Year Review of Constitutional Law", see 41 Den. L. Ctr. J. 77 (1964). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to the right of appeal, see 15 Colo. Law. 1613 (1986).

Annotator's note. Since § 16-12-101 is similar to repealed § 39-7-27, CRS 53, and laws antecedent to CSA, C. 48, § 500, relevant cases construing those provisions have been included in the annotations to this section.

Common-law right to review recognized by statute. In Colorado the common-law right of the defendant to obtain appellate review of criminal proceedings was given statutory recognition and standing as far back as 1861 by the territorial legislature. Krutka v. Spinuzzi, 153 Colo. 115, 384 P.2d 928 (1963).

A trial de novo conducted by the district court is not a review of the county court judgment; it is an entirely new proceeding. Bovard v. People, 99 P.3d 585 (Colo. 2004).

Only in cases tried de novo by the district court will the district court judgment be subject to direct appeal. Justifiably, then, the defendant may seek direct appeal when the district court enters its judgment from a de novo trial. Bovard v. People, 99 P.3d 585 (Colo. 2004).

Certiorari review does not suffice as an appellate review from a final judgment of the district court. Bovard v. People, 99 P.3d 585 (Colo. 2004).

Section gives one appeal as a matter of right. Under this section, one convicted of crime is entitled as a matter of right to one appeal, but where such appeal is dismissed for want of prosecution, he is not entitled as a matter of right to a second. Caviness v. People, 27 Colo. 283, 60 P. 565 (1900).

Nothing in this section prohibits a direct appeal of a probation revocation order under C.A.R. 1. People v. Carr, 185 Colo. 293, 524 P.2d 301 (1974).

Appellate review may not discriminate on account of poverty. A state is not required by the federal constitution to provide appellate courts or a right to appellate review at all. But a state that does grant appellate review cannot do so in a way that discriminates against some convicted defendants on account of their poverty. In re Patterson, 136 Colo. 401, 317 P.2d 1041 (1957).

Appeals in criminal cases are a matter of right. In re Patterson, 136 Colo. 410, 317 P.2d 1041 (1957); In re Griffin, 152 Colo. 347, 382 P.2d 202 (1963).

Because this section creates a statutory right of appeal of a conviction, the common law doctrine of abatement ab initio applies if defendant dies after filing the appeal but before the appeal can be decided. However, the order of restitution entered against defendant at the time of conviction created a civil judgment and was not subject to abatement but could be appealed by defendant's estate. People v. Daly, 313 P.3d 571 (Colo. App. 2011), overruled in People v. Johnson, 2021 CO 79, 499 P.3d 1045.

When a defendant dies while his criminal conviction is pending on direct appeal, the doctrine of abatement ab initio extinguishes a restitution order entered as part of his sentence. People v. Johnson, 2020 COA 124, 487 P.3d 1262, aff'd, 2021 CO 79, 499 P.3d 1045 (overruling People v. Daly, 313 P.3d 571 (Colo. App. 2011)).

An indigent defendant is entitled to obtain a free transcript when necessary to exercise the right of appeal. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973).

Appeal without benefit of counsel is unconstitutional. Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, an unconstitutional line has been drawn between rich and poor. In re Griffin, 152 Colo. 347, 382 P.2d 202 (1963).

The supreme court is authorized as a matter of procedure to fix the time within which an appeal could issue. Johnson v. People, 140 Colo. 256, 344 P.2d 181 (1959).

Statute as basis for jurisdiction. See People v. Young, 139 Colo. 357, 339 P.2d 672 (1959).

Waiver of right to appeal. A defendant cannot waive the right to challenge an illegal sentence because there cannot be a valid agreement to an illegal sentence. Such a sentence cannot validly be imposed and renders the plea agreement with its resulting guilty plea invalid. People v. Bottenfield, 159 P.3d 643 (Colo. App. 2006).