Opinion
No. 76-312 No. 76-260
Decided April 7, 1977.
In each of two criminal appeals, People moved for dismissal of the appeal because a timely motion for new trial had not been filed by defendant.
Motion to Dismiss Denied
1. CRIMINAL LAW — Motion for New Trial — Not Jurisdictional Prerequisite — Appeal. In a criminal case, the timely filing of a motion for new trial is not a jurisdictional prerequisite to the appeal of a judgment of conviction.
2. Procedure — Mandatory Requirements — Not Jurisdictional — May Be Waived — Failure — Timely Objection — Estopped. Where mandatory procedural requirements do not affect the jurisdiction of the court to act, a party, by failing to object thereto at the proper time, may waive those requirements or be estopped to assert that such requirements have not been complied with.
3. Motion for New Trial — Late Filing — No Objection — Deemed Waived — People — Estopped on Appeal. Where, in criminal case, there was no affirmative showing in the record on appeal that the People, in fact, objected to the late filing of defendant's motion for new trial prior to the time it was ruled upon by the trial court, that objection will be deemed waived, and the People will be deemed estopped to raise it for the first time on appeal.
No. 76-312, Appeal from the District Court of El Paso County, Honorable Hunter D. Hardeman, Judge. No. 76-260, Appeal from the District Court of the City and County of Denver, Honorable Neil Horan, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, James S. Russell, Assistant Attorney General, J. Stephen Phillips, Assistant Attorney General, for plaintiff-appellee.
Jeffrey I. Tompkins, Gary S. Link, for defendant-appellant, Siyani Funsani Masamba.
Rollie R. Rogers, State Public Defender, Dorian E. Welch, Deputy State Public Defender, for defendant-appellant Auguster Sims.
In each of the following cases the People have moved to dismiss the appeal because a motion for new trial was not timely filed. We have consolidated the cases for the purposes of ruling upon the motions. We deny the motion in each case.
In no. 76-312, defendant Masamba was convicted by a jury of first degree murder. The defendant's motion for new trial was not filed until one day after the 30-day extension granted by the trial court had expired. See Crim. P. 33(b). However, the record reflects that the motion was subsequently heard by the court without objection by the People, and was denied on its merits.
In no. 76-260, defendants Sims was convicted by a jury for possession of narcotic drugs. Defendant's motion for new trial was not filed within 10 days after the jury's verdict was returned or within the 20-day extended period granted by the trial court. See Crim. P. 33(b). Rather, defendant's motion for a new trial was filed 17 days after the extension granted by the trial court had expired, but was subsequently heard by the court without objection by the People, and was denied on its merits.
[1] In contrast to the provisions of the Rules of Civil Procedure governing motions for new trial, upon a showing of excusable neglect the trial court is authorized under the Criminal Rules of Procedure to grant an extension of time for filing the motion for new trial after the original 10 days had expired, or, after the expiration of any extended date granted by the trial court. See Crim. P. 45(b)(2); cf. C.R.C.P. 6(b). See also Austin v. College/University Insurance Co., 30 Colo. App. 502, 495 P.2d 1162 (1972). Hence, unlike cases governed by the Rules of Civil Procedure, see Rueckhaus v. Snow, 167 Colo. 51, 445 P.2d 577 (1968), we conclude that in a criminal case the timely filing of a motion for new trial is not a jurisdictional prerequisite to the appeal of a judgment of conviction.
Where the People object to the late filing of a motion for new trial prior to the time of hearing on the motion, the defendant is afforded the opportunity to show, pursuant to Crim. P. 45(b)(2), that the late filing was due to excusable neglect. However, where, as here, the objection is made for the first time on appeal, the defendant has lost that opportunity absent a remand from this court to the trial court with the resultant delay and burden imposed thereby.
[2,3] Where mandatory procedural requirements do not affect the jurisdiction of the court to act, a party may waive those requirements or be estopped to assert that such requirements have not been complied with by failing to object thereto at the proper time. See, e.g., Priestley v. Inwood Industries, Inc., 191 Colo. 543, 560 P.2d 822 (1976); Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971); Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951); In re Marriage of Armbeck, 33 Colo. App. 260, 518 P.2d 300 (1974). We view that concept as applicable here. Hence, we hold that since there was no affirmative showing in the record on appeal that the People, in fact, objected to the late filing of defendant's motion for new trial prior to the time it was ruled upon by the trial court, that objection is deemed waived, and the People are estopped to raise it for the first time on appeal.
The motions to dismiss are denied.
JUDGE ENOCH and JUDGE KELLY concur.