Legal Question in Appeals and Writs in Colorado

Appellate issue for sentencing above the presumptive range

My friend was sentenced above the ''Presumptive Range'' under the 2000 ''N.J. vs. Apprendi'' statute, so he has an appeal pending in the ''10th Cirucit Court'' of appeals filed from Colorado. Recently his court appointed appeals lawyer told him because of the law changing in 2000 he should file immediately a ''35C'' motion. However he had him do that 4 years ago. He is very worried if he files it again it could cause the ''10th Circuit'' court of appeals to throw his case out. So should he file another ''35C motion'' because the sentencing law was changed in year 2000 or not? And if he does will they throw his appeal out. He has been given bad advice before and afraid to file the new ''35C'' motion. He went to jail in his twenties, he was not a ''career criminal'' had never been in trouble, worked and was on vacation in Co. with is family when he got involved in an unfortunate incident where the victim died. He received 45 years as he was told to accept a plea or get life, however he also found out later, his court appointed lawyer had represented the ''victim'' 2 years prior before she represented him. This young man needs help as to whether he should file another ''35C'' in lieu of the changed law and would his appeal be jeopardized??


Asked on 4/28/05, 7:21 pm

1 Answer from Attorneys
Daniel Fenaughty FENAUGHTY & ASSOCIATES, PC

Re: Appellate issue for sentencing above the presumptive range

If he already has a direct appeal and a 35c pending, he should move to modify the 35c, not file a new one. If the Apprendi issue is before the court on Appeal or 35c, however, why does he need to change it? Filing multiple 35c's may annoy the trial court, but it should not affect his appeal (which is before an entirely different court).

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Answered on 4/29/05, 10:44 am


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