I lost a criminal case at trial. During the course of my case my lawyer didn't file any motions to dismiss even though he said there was no probable cause for my charges and that there was insufficient evidence. My charge was as follows: I had filed a rule 60 motion to dismiss my permanent protection order on the grounds of due process violations at my PPO hearing. I cited in the motion case law which, if citing due process violations, would allow me to file the motions "at any time". Here is some of that case law:
Here is some case law:
This rule is not a substitute for appeal, but instead is meant to provide relief in the interest of justice in extraordinary circumstances. De Avila v. Estate of DeHerrera, 75 P.3d 1144 (Colo. App. 2003).
Father's motion for relief not time-barred because judgment was void. Where notice through publication was inadequate...father was deprived of his constitutional right to due process, thus making the judgment terminating his parental rights void. The requirements of due process take precedence over statutory enactments. In re C.L.S., 252 P.3d 556 (Colo. App. 2011).
Void judgment may be vacated at any time regardless of time limits established by rules of civil procedure. Don J. Best Trust v. Cherry Creek Nat. Bank, 792 P.2d 302 (Colo. App. 1990).
Where service is not proper, judgment is void and may be challenged at any time. United Bank of Boulder, N.A. v. Buchanan, 836 P.2d 473 (Colo. App. 1992).
A void judgment is vulnerable to a direct or collateral attack regardless of the lapse of time. Davidson Chevrolet, Inc. v. City and County of Denver, supra [137 Colo. ___, 328 P.2d 379].
The leading Colorado case in regards ***** ***** is: In re C.L.S., 252 P.3d 556 (Colo. App. 2011).
After arrest I shared also this case law with BOTH my attorney and the DA, along with other case law. The prosecution arrested me because I had filed before the 4 year waiting period for reversal as directed by statute...stating, that because I had filed early then the ONLY reason I could have had for doing so would have been to contact the other party by way of serving her a copy of the motion (in which were no messages). There was no other evidence in support of guilt (other than that I had filed before the 4 years). Yet Rule 60(b)(3) allows for an exception to that rule. At trial my lawyer chose not to make any legal defense, only a factual defense. He said that he agreed that Rule 60 allowed me to file early yet didn't bring it up. Also at trial there were any number of errors in the jury instructions (as told me by my lawyer) but in our motion for retrial my lawyer only brought up one of those errors. Should our motion for retrial be denied, might I be able to file a Rule 35(c) appeal for ineffective counsel and/or prosecutorial misconduct?