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MyraB
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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Permanent restraining order question

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I have a permanent restraining order for stalking. At one point during my permanent protection order hearing my lawyer brought up the question of "credible threat;" and to which the judge responded that the matter of "threat" was irrelevant and that my lawyer was not to question the plaintiff in regards. Now, the entire reason the plaintiff had petitioned for the order in the first place was because of this very question of threat (be it known meanwhile that the plaintiff suffers from at least 2 psychiatric disorders, has triggers, and apparently also is a compulsive liar, and so her perception of a "threat" might be different from everyone else's). Anyway, I filed a motion to vacate this sentence with the district court, and the court denied the motion stating that "the defendant's motion conflates principles pertinent only to criminal protection orders issued pursuant to 18-1-1001 CRS, whereas this is a civil protection order issued pursuant to 13-14-102 CRS;" also it stated that the question of "credible threat" was relevant not to civil cases but to temporary restraining orders only. Originally my temporary restraining order had been issued in conjunction with my arrest for a stalking charge. The stalking charge was dropped b/c the evidence was inconclusive and what with all the lies from the alleged victim; however the temp. restraining order remained and then became a permanent restraining order. Anyway I have since read over the original motion for temporary restraining order issued concurrent with my arrest...and there, too, no mention of credible threat is made or even alluded to. The DA who filed the motion wrote only that the accused had sent one too many "disturbing" emails. Now a disturbing email is much different than a threatening email! My question is...can I file a motion with the district court to vacate my original temp. restraining order for illegal sentence upon an argument of "no credible threat", or is this temp. restraining no longer approachable as the permanent order has since taken its place? Also, could the DA who filed the original temp. restraining order be liable for filing a motion in violation of statute, as if maliciously?


 


More info...after receiving the perm. restraining order I was not made aware that I could appeal--and so I didn't. To appeal now I would have to wait yet a few years. This motion I had filed with the court was a motion to vacate an illegal sentence, essentially a post-sentence reversal request: it was not an appeal.

Hello there

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How long ago was the temp restraining order put into place?

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How long was the time period between the temp order and the permanent order?

Do you have any prior criminal or civil restraining orders against you in CO ?

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MARY

Customer: replied 3 years ago.


Hi. The motion for the temp restraining order was granted in July, 2010 (concurrent w/ my arrest). The order was made permanent in October, 2010 which was while the felony case was still on and w/ no additional info or complaints made besides those from the arrest situation. The evidence used at my permanent order hearing was the same as from the criminal case and referenced as such. I have no prior criminal or civil restraining orders in CO.

Hello again Marc --

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I have to go offline for a while so I will opt out to see if others want to answer. If it has not been completed by the time I return about 8 EST tonight then I will pop in and answer it at that point.

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MARY

Customer: replied 3 years ago.


Okay. Thank you.

Hello. I see that Mary opted out of this question and it will be my pleasure to assist you further.

The civil protective order proceeding under 13-14-102 CRS is separate from any protective order issued under 18-1-1001 CRS. If the civil protective order is valid it is enforceable. Even if the protective order issued in the criminal case was somehow deficient, invalid or expired, it would have no effect on the permanent civil protective order because it is a separate order. Also, because a permanent civil restraining order is decided based on a review of all the circumstances, it does not matter if the TRO, whether criminal or civil, was somehow deficient. In issuing the permanent restraining order the court must be satisfied, following a hearing, that the conditions for such an order are met. To challenge a permanent order based on deficiencies in the TRO would be similar to someone challenging probable cause following a conviction. Although a person could challenge whether there is sufficient evidence to establish probable cause for the indictment or complaint on a motion to dismiss prior to trial, after trial it doesn't matter because the charges have been proved beyond a reasonable doubt. The issue is moot. So, yes, the permanent order supercedes any TRO.

 

It is unlikely you would have any recourse against the DA with regard to the issuance of the TRO as the prosecutor would have presented the available evidence and it would be up to the judge to issue the order based on the evidence. Also, an order of protection under 18-1-1001 CRS is mandatory in criminal proceedings.

Please feel free to ask any follow-up questions.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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