Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 23CA1676
2
Attorneys for Petitioner: John Walsh, District Attorney,
Second Judicial District Robert M. Russel, Chief Deputy
District Attorney Jeff M. Van der Veer, Senior Deputy
District Attorney Alison Suthers, Senior Deputy District
Attorney Denver, Colorado
Attorneys for Respondent: Teodorovic Law, P.C. Adrienne R.
Teodorovic Windsor, Colorado
3
BOATRIGHT JUSTICE
4
¶1
While Quinn M. Jebe awaited trial, the People moved to
dismiss his case without prejudice because the victim was
unavailable to testify. After the People explained that this
would not foreseeably change, the district court dismissed
the case with prejudice. The People immediately
filed a motion to reconsider, which the district court denied
thirty-nine days later. The People then filed a notice of
appeal within a month from the district court's denial of
the motion to reconsider but more than forty-nine days from
the initial dismissal. A division of the court of appeals
concluded that the People's appeal was untimely because
it had been filed more than forty-nine days after the
dismissal, and the motion to reconsider did not extend that
appeal period. People v. Jebe, No. 23CA1676, ¶
1 (Dec. 5, 2024); see C.A.R. 4(b)(6)(A). We granted
the People's petition for certiorari.[1]
¶2
We hold that when the People timely file a motion to
reconsider in the district court, it tolls the appeal
timeline.[2] Hence, we conclude here that the
5
People's appeal was timely because they (1) filed a
motion to reconsider within the forty-nine-day appeal period
set forth in C.A.R. 4(b)(6)(A), which tolled the appeal
timeline, and then, factoring in the time period tolled, (2)
filed a notice of appeal within forty-nine days of the
district court's order denying the motion to reconsider.
Accordingly, we reverse the judgment of the court of appeals
and remand the case for the court of appeals to reinstate the
People's appeal as timely filed.
I.
Facts and Procedural History
¶3
The People charged Jebe with three counts of sexual assault
on a child and distribution of a controlled substance to a
minor. His speedy trial deadline was August 28, 2023, and
trial was set for August 1. At a pretrial conference on July
17, the People indicated to the district court that the
victim could not testify due to a mental health condition,
which would not change within the speedy trial deadline. The
district court continued the pretrial conference to July 24.
On that date, the parties agreed to appear on July 28 for a
plea hearing, and the court maintained the August 1 trial
date.
¶4
On July 27, the People filed a motion to dismiss without
prejudice because the victim was unavailable to testify, and
they reiterated this request at the plea hearing the next
day. Jebe objected and asked the court to reset trial for
August 28, the last date of his speedy trial deadline. But
when the court asked the People if
6
they would be ready for trial then, they responded that they
would "be in the same position." Based on these
circumstances, the court dismissed the case but instead,
with prejudice, on July 28.
¶5
That same day, the People filed a motion to reconsider the
court's decision to dismiss the case with prejudice. The
district court denied that motion on September 5, thirty-nine
days later. The People then filed a notice of appeal on
September 28, twenty-three days after the court denied their
motion to reconsider and sixty-two days after the order
dismissing the case with prejudice.
¶6
The court of appeals issued an order to show cause why the
appeal should not be dismissed as untimely under C.A.R.
4(b)(6)(A). The order to show cause stated that because the
district court appeared to have dismissed all the charges on
July 28, the appeal was due by September 15.[3]
¶7
The People responded, citing case law to suggest that the
time period for an appeal did not begin to run until the
district court ruled on their motion to reconsider. See
People v. Tuffo, 209 P.3d 1226, 1229 (Colo.App. 2009);
People v. Melton, 910 P.2d 672, 675 n.4 (Colo.
1996), superseded by rule on other grounds as stated
in, People v. Zhuk, 239 P.3d 437, 439 (Colo.
2010); People v. Blue, 253 P.3d 1273, 1275
(Colo.App. 2011).
7
In the alternative, the People argued that their reliance on
that case law constituted excusable neglect, warranting a
thirty-five-day extension and rendering the appeal timely.
See C.A.R. 4(b)(3).
¶8
A division of the court of appeals disagreed and dismissed
the People's appeal as untimely. Jebe, ¶ 1.
The division concluded that C.A.R. 4 does not toll the time
to appeal for postjudgment motions filed by the
prosecution. Id. at ¶ 9. The division
also distinguished the People's cited case law, noting
that those cases involved either interlocutory appeals or
"unusual procedural circumstances." Id. at
¶ 13. Furthermore, the division concluded that the
People made no showing of excusable neglect because their
misinterpretation of the cases was avoidable "legal
error" and because they still had ten days to file their
notice of appeal when the district court denied the motion to
reconsider on September 5. Id. at ¶ 19.
¶9
We granted the People's petition for certiorari.
II.
Analysis
¶10
We begin by establishing our standard of review. We then look
to our Colorado Appellate Rules governing prosecutorial
appeals in criminal cases, specifically, C.A.R. 4(b)(6)(A).
Next, we review case law regarding tolling when a party files
a postjudgment motion with the trial court, seeking
substantive review of an immediately appealable order.
Finally, we apply this law to the facts presented here.
8
¶11
We hold that when the People timely file a motion to
reconsider in the district court, it tolls the appeal
timeline. Hence, we conclude here that the People's
appeal was timely because they (1) filed a motion to
reconsider within the forty-nine-day appeal period set forth
in C.A.R. 4(b)(6)(A), which tolled the appeal timeline, and
then, factoring in the time period tolled, (2) filed a notice
of appeal within forty-nine days of the district court's
order denying the motion to reconsider. Accordingly, we
reverse the judgment of the court of appeals and remand the
case for the court of appeals to reinstate the People's
appeal as timely filed.
A.
Standard of Review
¶12
A party's "[f]ailure to file a timely appeal is a
jurisdictional defect." People v. Donahue, 750
P.2d 921, 922 (Colo. 1988). Jurisdiction is a question of law
that we review de novo. E.g., People v.
Maser, 2012 CO 41, ¶ 10, 278 P.3d 361, 364.
B.
Prosecutorial Appeals in Criminal Cases
¶13
A trial court's order dismissing a defendant's
charges is an immediately appealable final order. §
16-12-102(1), C.R.S. (2025). The People's appeal of a
district court's final order in a criminal case must
comport with the applicable procedures set forth in the
Colorado Appellate Rules. Id.; Crim. P. 38.
Specifically, C.A.R. 4(b)(6)(A) requires that the People file
their notice of appeal "within [forty-nine] days after
the entry of judgment or order appealed from."
9
¶14
The court of appeals has jurisdiction to hear an appeal only
when it is timely filed.[4] C.A.R. 3(a); People v. Baker,
104 P.3d 893, 895 (Colo. 2005). And C.A.R. 4(b)(6)(A) is
silent regarding the effect of motions to reconsider on the
timing for prosecutorial appeals in criminal cases. Whereas
C.A.R. 4(b)(2) provides for tolling in criminal cases
following a defendant's post-trial motion after
conviction, C.A.R. 4(b)(6)(A) does not address whether
postjudgment motions to reconsider affect the deadline for
prosecutorial appeals.
C.
Appeal Timeliness in the Context of Subsequent Motions to the
Trial Court After a Directly Appealable Order
¶15
We have previously held that a timely motion to reconsider a
trial court's suppression order—filed within the
applicable interlocutory appeal timeline—tolls the time
for that interlocutory appeal. People v. Powers, 47
P.3d 686, 687 (Colo. 2002), superseded by rule on other
grounds as stated in, Zhuk, 239 P.3d at
439.[5]
In Powers, we observed that "C.A.R. 4.1 does
not address motions for
10
reconsideration," and we had not already addressed this
issue in the interlocutory appeal context. Id. at
688. We then relied on the Supreme Court's conclusions in
United States v. Healy, 376 U.S. 75, 78-79
(1964); United States v. Dieter, 429 U.S. 6, 8-9
(1976); and United States v. Ibarra, 502 U.S. 1, 4
n.2 (1991), in addition to the Tenth Circuit's reasoning
in United States v. Martinez, 681 F.2d 1248, 1253
(10th Cir. 1982). Powers, 47 P.3d at 689.
¶16
We observed that in Healy, Dieter, and
Ibarra, the "Supreme Court has held that a
timely motion to reconsider tolls the running of the [appeal]
period," meaning that the appeal period "begin[s]
again once the trial court rules on the motion for
reconsideration." Id. (first citing
Ibarra, 502 U.S. at 4 n.2; then citing
Dieter, 429 U.S. at 8; and then citing
Healy, 376 U.S. at 78-79). We further noted that in
Martinez, the Tenth Circuit explained that
"[a]n untimely request for rehearing will not toll the
running of the appeal period." Id. (citing
Martinez, 681 F.2d at 1253). And we found "the
reasoning of these cases persuasive." Id. Thus,
we incorporated this rule into our case law, specifically in
the context of interlocutory appeals. Id.
¶17
Divisions of the court of appeals have followed suit. In
Tuffo, a division cited Powers for its rule
that "a proper and timely motion for reconsideration
suspends the order's finality such that the full time for
appealing begins to run only when reconsideration is
denied." Tuffo, 209 P.3d at 1229 (citing
Powers,
11
47 P.3d at 689). There, at sentencing, defense counsel was
unprepared to address the sexually violent predator
designation, and the court allowed counsel to file a motion
for reconsideration, which would be reviewed at a later
hearing. Id. After several subsequent hearings and
about seven months after sentencing, the court permitted
arguments regarding the designation and ultimately denied the
defendant's oral motion to reconsider. Id. When
the People later disputed the defendant's subsequent
appeal as untimely, the division instead held that the
challenge was timely because the trial court had allowed the
oral motion for reconsideration made at sentencing to be
heard at a later date and the prosecution did not object at
any point. Id. (relying on Powers, 47 P.3d
at 689).
¶18
Another division of the court of appeals relied on
Powers and Tuffo in Blue, where
the trial court reduced a charge, creating a partial
dismissal subject to interlocutory appeal. Blue, 253
P.3d at 1276. The People moved for reconsideration within the
interlocutory appeal timeline, and after the trial court
denied their motion, they filed their notice of appeal two
days later. Id. The division concluded that the
People's interlocutory appeal was timely. Id. It
first stated that under Powers, "if Colorado
criminal rules do not expressly provide for reconsideration,
then a reconsideration motion is timely as long as it is
filed within the specified time for taking an appeal."
Id. (citing Powers, 47 P.3d at 689). The
division then also pointed to Tuffo, observing that
a timely motion to reconsider
12
tolls the appeal time "such that the full time for
appealing begins to run only when reconsideration is
denied." Id. (quoting Tuffo, 209 P.3d
at 1229) (applying the rule established in Powers,
47 P.3d at 689).
D.
Whether Powers Is Applicable
¶19
Jebe argues that the federal common law rule we adopted in
Powers is inapposite here because Powers
dealt with an interlocutory appeal, and unlike C.A.R. 4.1,
C.A.R. 4 is not wholly silent on the effect of
postjudgment motions. He notes that in Dieter, the
Court did not distinguish between civil and criminal cases
and that in Healy, the Court found that the
procedural rules did not sufficiently resolve the issue. He
points out that C.A.R. 4 distinguishes between civil and
criminal cases and between defendant and prosecutorial
appellants. Compare C.A.R. 4(a) (governing appeals
in civil cases), with C.A.R. 4(b) (governing appeals
in criminal cases); compare C.A.R. 4(b)(2)
(governing a defendant's post-trial motion),
with C.A.R. 4(b)(6)(A) (governing prosecutorial
appeals).
¶20
In particular, Jebe cites C.A.R. 4(a)(3), which provides that
any party filing a C.R.C.P. 59 motion tolls the appeal
timeline in civil cases, and C.A.R. 4(b)(2), which
provides that certain post-trial motions filed by a
defendant toll the appeal timeline in
criminal cases. He argues that these distinctions
are intentional and restrict what the provisions do not
expressly allow, meaning courts should not infer tolling
mechanisms in C.A.R. 4(b)(6)(A). Moreover, he asserts that
because
13
C.A.R. 4 addresses the tolling effect of certain post-trial
motions, the rule differs from C.A.R. 4.1's silence,
rendering Powers distinguishable.
¶21
As an initial matter, in Healy and Dieter,
the applicable statute and appellate rule were both silent on
the effect of post-trial motions. Healy, 376 U.S. at
77 (first citing 18 U.S.C. § 3731; and then citing Sup.
Ct. R. 11(2) (1964)); Dieter, 429 U.S. at 7 n.2
(first citing 18 U.S.C. § 3731; and then citing Fed. R.
App. P. 4(b)). Similarly, in Powers, we observed
that no rule prescribed the applicable procedure and that we
had not already addressed the issue. 47 P.3d at 688.
Accordingly, we incorporated precedent from the Supreme
Court. Id. at 688-89. Jebe contends that we are not
in the same position here because C.A.R. 4 does
address motions to reconsider and, as he argues, restricts
their tolling effect to those provisions, which do
not include postjudgment motions filed by the
People.
¶22
Jebe points out that, in civil cases, C.A.R. 4(a)(3)
incorporates C.R.C.P. 59, which governs motions for
post-trial relief in civil cases. Specifically, C.A.R.
4(a)(3) adopts C.R.C.P. 59(a), which limits parties to filing
for post-trial relief within fourteen days of the entry of a
judgment, and C.R.C.P. 59(j), which then requires that a
trial court rule on the motion within sixty-three days.
C.A.R. 4(a)(3) provides:
The running of the time for filing a notice of appeal is
terminated as to all parties when any party timely files a
motion in the lower court pursuant to C.R.C.P. 59, and the
time for an appeal . . . runs for all parties from the timely
entry of any order disposing of the last such
14
timely filed motion under C.R.C.P. 59 or the expiration of
the time for ruling on such a motion pursuant to C.R.C.P.
59(j).
¶23
Next, C.A.R. 4(b)(2) provides that, in criminal cases,
"[i]f the defendant files a timely motion in arrest of
judgment, for judgment of acquittal, or for a new trial on
any ground other than newly discovered evidence, an appeal
from a judgment of conviction must be taken within
[forty-nine] days after entry of an order denying the
motion."
¶24
Turning to the subsection for prosecutorial appeals, C.A.R.
4(b)(6)(A) sets forth the forty-nine-day appeal timeline but
does not provide any similar language regarding post-trial
motions. In full, C.A.R. 4(b)(6)(A) states:
Unless otherwise provided by statute or these rules, when an
appeal by the state or the people is authorized by statute,
the notice of appeal must be filed in the court of appeals
within [forty-nine] days after the entry of judgment or order
appealed from. The court of appeals will issue a written
decision answering the issues in the case and will not
dismiss the appeal on the ground that a decision will have no
precedential value. The final decision of the court of
appeals is subject to petition for certiorari to the supreme
court.
¶25
Although it is true that C.A.R. 4 expressly provides for
tolling in civil cases and upon certain post-trial motions
raised by a defendant in criminal cases, the rule is silent
on prosecutorial postjudgment motions. See C.A.R.
4(b)(6)(A). Despite Jebe's contention that this
subsection's silence precludes tolling the time to appeal
when the People seek reconsideration, there is simply no
guidance relating to this scenario. Thus, C.A.R. 4 provides
no applicable procedure to follow
15
in these circumstances. See § 16-12-102(1)
("The procedure to be followed in filing and prosecuting
appeals under this section shall be as provided by
applicable rule of the supreme court of
Colorado." (emphasis added)). And this is similar to the
lack of procedure that we encountered in Powers.
See Powers, 47 P.3d at 688.
¶26
Jebe nonetheless argues that Powers is
distinguishable because final dismissals are "final
order[s] that shall be immediately appealable" under
section 16-12-102(1), yet Powers involved an
interlocutory appeal under section 16-12-102(2), which does
not contain similar language. He asserts that this language
limits appeals to that final order and does not authorize
appealing a trial court's order on a motion to
reconsider.
¶27
Jebe relies on two cases from divisions of the court of
appeals that interpreted similar finality language in Crim.
P. 35(c)(3)(IX) and held that a motion to reconsider a
court's postconviction order cannot suspend the
order's finality or toll the time for an appeal. See
People v. Adams, 905 P.2d 17, 19 (Colo.App. 1995);
People v. Thomas, 195 P.3d 1162, 1164 (Colo.App.
2008). However, the postconviction context is distinguishable
because Crim. P. 35(c)(3)(VI) bars postconviction relief
based on previously denied claims. Jebe contends that the
same logic applies here. But C.A.R. 4 contains no comparable
language.
¶28
Further, in addition to final dismissals, section
16-12-102(1) also applies to partial dismissals.
§ 16-12-102(1) ("Any order of a court that either
dismisses one
16
or more counts . . . shall constitute a final order that
shall be immediately appealable ...."). And partial
dismissals are subject to interlocutory appeal, just like the
appeal of a suppression order at issue in Powers.
See C.A.R. 4(b)(6)(B). Moreover, both interlocutory
appeals and appeals of final dismissals seek substantive
review of a trial court's ruling.
¶29
Finally, we note that in Powers, we applied Supreme
Court case law involving dismissals to interlocutory
appeals. See Healy, 376 U.S. at 76-77
(pertaining to a dismissed indictment); Dieter, 429
U.S. at 7 (same). Thus, the distinctions between the two are
immaterial for our present purpose. Accordingly, the rule in
Powers applies here.
E.
Application
¶30
The rule of Powers—that a timely motion to
reconsider a suppression order tolls the period for filing an
interlocutory appeal, provided the motion is filed within the
period to file the appeal itself—also applies to
prosecutorial appeals under C.A.R. 4(b)(6)(A). In effect, the
People must file their motion to reconsider within forty-nine
days after entry of a final dismissal.
¶31
Here, the People filed their motion to reconsider on July 28,
the same day the district court dismissed the case with
prejudice. They filed the motion within the forty-nine-day
appeal period, and thus, it was timely. C.A.R. 4(b)(6)(A).
17
Because the motion to reconsider was timely, the district
court retained jurisdiction to review its dismissal with
prejudice.
¶32
Our holding recognizes that if a timely motion to reconsider
only protected jurisdiction and did not toll the appeal
period, then upon a notice of appeal while a motion to
reconsider is still pending, the district court and court of
appeals would both be presented with the same legal question.
So, we note that if the People were to file a motion to
reconsider with the district court and also file a notice of
appeal before the district court ruled on the motion, then
the district court would be divested of jurisdiction. Even
though the district court would lose jurisdiction in this
scenario, it would not promote judicial economy. On the other
hand, if the trial court recognizes that it erred and could
correct that error before the People commence an appeal, then
this would improve efficiency.
¶33
Thus, we conclude that the People's July 28 motion to
reconsider was timely under C.A.R. 4(b)(6)(A) because it was
filed the same day the district court dismissed the case,
which was within the forty-nine-day appeal period. Because it
was timely, it necessarily tolled the appeal period. And the
appeal timeline restarted when the district court denied the
motion in a written order on September 5, giving the People
forty-nine-days from that date to file an appeal. The
People's September 28 notice of appeal was thus timely
because it fell within the forty-nine-day appeal period
relating back to the September 5 order.
18
III.
Conclusion
¶34
We hold that when the People timely file a motion to
reconsider in the district court, it tolls the appeal
timeline. Hence, we conclude here that the People's
appeal was timely because they (1) filed a motion to
reconsider within the forty-nine-day appeal period set forth
in C.A.R. 4(b)(6)(A), which tolled the appeal timeline, and
then, factoring in the time period tolled, (2) filed a notice
of appeal within forty-nine days of the district court's
order denying the motion to reconsider. Accordingly, we
reverse the judgment of the court of appeals and remand the
case for the court of appeals to reinstate the People's
appeal as timely filed.
19
JUSTICE GABRIEL, joined by JUSTICE HOOD, concurring in the
judgment.
¶35
The majority concludes that when the People timely file a
motion to reconsider in the district court, it tolls the
appeal timeline and, thus, the People's appeal was timely
in this case. Maj. op. ¶¶ 2, 34. Under settled
principles of rule construction, however, I cannot agree that
a motion for reconsideration by the People tolls their
timeline for appeal. As a result, I would conclude that the
People's appeal was untimely in this case. But I would
further conclude that given the state of case law from our
court and divisions of our court of appeals, the People's
untimely filing was the result of excusable neglect. For that
reason, like the majority, I would conclude that the
People's appeal was properly before the court of appeals
division below and that the division reversibly erred in
dismissing that appeal.
¶36
I therefore respectfully concur in the judgment only.
I.
Analysis
¶37
The majority correctly sets forth the applicable facts, and I
need not repeat those facts here. Accordingly, I begin by
noting our standard of review and pertinent principles of
rule construction. I then apply those principles and conclude
that, under the applicable appellate rules, a timely motion
for reconsideration does not toll the People's time to
file an appeal in a criminal case and, therefore, the
People's appeal was untimely here. I end by addressing
20
whether the People's untimely filing was the result of
excusable neglect and conclude that it was.
A.
Standard of Review and Principles of Rule
Construction
¶38
We review interpretations of our procedural rules de novo.
People v. Corson, 2016 CO 33, ¶ 44, 379 P.3d
288, 297. In construing our procedural rules, we employ the
same interpretive rules applicable to statutory construction.
Buell v. People, 2019 CO 27, ¶ 19, 439 P.3d
857, 861. Accordingly, we seek to discern and effectuate the
rule framers' intent. See People in Int. of
B.C.B., 2025 CO 28, ¶ 24, 569 P.3d 74, 79. In doing
this, we apply words and phrases in accordance with their
plain and ordinary meanings, and we consider the entire
scheme of the rules in order to give consistent, harmonious,
and sensible effect to all of its parts. See id.
Moreover, we must avoid interpretations that would render any
words or phrases of a rule superfluous or that would lead to
illogical or absurd results. See id. And because we
presume that rule framers, like our legislature, act
intentionally when selecting the words used in a rule, we may
not add words to a rule or subtract words from it. See
id. at ¶ 25, 569 P.3d at 79; Nesjan v. J &
A Distrib., Inc., 2025 COA 81, ¶ 9, 580 P.3d 596,
598-99.
21
B.
Timeliness of the People's Appeal
¶39
Applying the foregoing principles, for several reasons, I do
not believe that the applicable appellate rules tolled the
time for appeal upon the People's timely filing of their
motion for reconsideration.
¶40
First, C.A.R. 4(b), which addresses appeals in criminal
cases, does not provide for tolling in the circumstances now
before us. That rule states, in pertinent part:
(1) Time for Filing a Notice of Appeal. Except as provided in
C.A.R. 4(c) and (d), the defendant's notice of appeal
must be filed in the appellate court and an advisory copy
served on the lower court within 49 days after entry of the
judgment or order appealed from.
(2) Effect of a Post-Trial Motion on the Deadline for Filing
a Notice of Appeal. If the defendant files a timely
motion in arrest of judgment, for judgment of acquittal, or
for a new trial on any ground other than newly discovered
evidence, an appeal from a judgment of conviction must be
taken within 49 days after entry of an order denying the
motion. A motion for a new trial based on newly discovered
evidence will similarly extend the time for appeal from a
judgment of conviction if the motion is made within 14 days
after entry of the judgment.
(3) Extension of Time to File a Notice of Appeal. Upon a
showing of excusable neglect the appellate court may, before
or after the time has expired, with or without motion and
notice, extend the time for filing a notice of appeal for a
period not to exceed 35 days from the expiration of the time
otherwise prescribed by this section (b). ....
(6) Prosecutorial Appeals.
(A) In General. Unless otherwise provided by statute or these
rules, when an appeal by the state or the people is
authorized by statute, the
22
notice of appeal must be filed in the court of appeals within
49 days after the entry of judgment or order appealed from.
The court of appeals will issue a written decision answering
the issues in the case and will not dismiss the appeal on the
ground that a decision will have no precedential value. The
final decision of the court of appeals is subject to petition
for certiorari to the supreme court.
(Emphases
added.)
¶41
Nothing in C.A.R. 4(b)(6), which governs criminal appeals by
the People, provides for either a motion for reconsideration
or tolling of the time to appeal upon the filing of such a
motion. Accordingly, the text of the rule does not support
the majority's conclusion that a timely motion for
reconsideration by the People tolls their time to appeal.
¶42
Second, the framers of C.A.R. 4 knew how to provide for
motions for reconsideration and tolling when these were
intended. For example, C.A.R. 4(a)(3) expressly addresses
C.R.C.P. 59 motions in civil cases and tolls the time to file
a notice of appeal during the pendency of such a motion.
Likewise, C.A.R. 4(b)(2) expressly addresses post-trial
motions filed by criminal defendants and tolls the time to
appeal when such motions are pending. C.A.R. 4(b)(6), which
concerns prosecutorial appeals in criminal cases, in
contrast, is silent regarding post-trial motions and any
tolling of the prosecution's time to appeal. As noted
above, we must presume that the framers acted intentionally
in selecting the words of C.A.R. 4, and we may not add words
to the rule as the majority does. See B.C.B., ¶
25, 569 P.3d at 79; Nesjan, ¶ 9, 580 P.3d at
598-99. Moreover, inferring a tolling
23
provision from C.A.R. 4(b)(6)'s silence fails to read all
of C.A.R. 4's parts consistently, as we are required to
do. See B.C.B., ¶ 24, 569 P.3d at 79.
¶43
Finally, the majority's interpretation renders the
tolling provisions of C.A.R. 4(a)(3) and C.A.R. 4(b)(2)
superfluous, which we may not do. See B.C.B., ¶
24, 569 P.3d at 79. If a rule that is silent regarding
motions for reconsideration and tolling always allows for
reconsideration and tolling, as the majority suggests, then
there would have been no reason to include express tolling
provisions in C.A.R. 4(a)(3) and C.A.R. 4(b)(2).
¶44
For these reasons, I would conclude that a timely motion for
reconsideration by the People does not toll the People's
time for filing an appeal in a criminal case. If C.A.R.
4(b)(6) is to include such a provision, then the proper
procedure is to request that our Rules of Appellate Procedure
Committee amend that rule. I do not believe that we should
effectively amend our procedural rules by way of case law,
thereby bypassing our usual processes (including standing
committee vetting and, often, public comment and hearing) for
the adoption or amendment of such rules.
¶45
Accordingly, because the People's notice of appeal was
filed sixty-two days after the district court entered the
pertinent order dismissing the underlying case with
prejudice, that appeal was untimely.
24
¶46
This, however, does not end my analysis. Under C.A.R.
4(b)(3), upon a showing of excusable neglect in a criminal
case, an appellate court may, before or after the time to
file a notice of appeal has expired, extend the time for
filing such a notice for a period not to exceed thirty-five
days from the expiration of the time otherwise prescribed in
C.A.R. 4(b). "A party's conduct constitutes
excusable neglect when the surrounding circumstances would
cause a reasonably careful person similarly to neglect a
duty." In re Weisbard, 25 P.3d 24, 26 (Colo.
2001) (quoting Tyler v. Adams Cnty. Dep't of Soc.
Servs., 697 P.2d 29, 32 (Colo. 1985)).
¶47
Here, as the majority points out, a number of opinions from
our court and from divisions of our court of appeals have
suggested, albeit perhaps in different contexts, that a
timely motion for reconsideration tolls the time for filing
an appeal. Maj. op. ¶¶ 15-18 (citing, among other
cases, People v. Powers, 47 P.3d 686, 689 (Colo.
2002), superseded by rule on other grounds as stated in,
People v. Zhuk, 239 P.3d 437, 439 (Colo. 2010);
People v. Blue, 253 P.3d 1273, 1276 (Colo.App.
2011); and People v. Tuffo, 209 P.3d 1226, 1229
(Colo.App. 2009)).
¶48
Here, even if an argument could be made that the foregoing
cases were incorrect, inapposite, or distinguishable, I
believe that a reasonably careful attorney could well have
read them, as the People here did, to support the view that a
timely motion for reconsideration tolls the time for filing
an appeal, even if the applicable appellate rule is silent on
the subject.
25
¶49
Accordingly, I would conclude that the People's untimely
filing here was the result of excusable neglect and,
therefore, their appeal was properly before the division
below.
II.
Conclusion
¶50
For these reasons, although I cannot agree that a timely
motion for reconsideration filed by the People tolls their
time to appeal and that, therefore, the People's appeal
was timely in this case, I would conclude that the
People's untimely appeal was the result of excusable
neglect. Accordingly, like the majority, I believe that the
appeal was properly before the division below and that the
division reversibly erred in dismissing that appeal.
¶51
I therefore respectfully concur in the majority's
judgment in this case.
---------
Notes:
[1] We granted certiorari to review the
following issue:
Whether the court of appeals erred in dismissing the
petitioner's appeal as untimely, when that appeal was
filed within [forty-nine] days of the order denying a motion
for reconsideration.
[2] The division and the parties agree
that C.A.R. 4(b)(2) already provides for tolling of a
defendant's time to appeal a judgment of
conviction upon the defendant's timely filing of certain
post-trial motions in the trial court. See Jebe,
¶ 11. Thus, our holding today focuses on the tolling
effect of the People's timely filed motion to
reconsider.
[3] Here, we note that, in considering the
tolling effect of the People's motion to reconsider, the
forty-nine-day appeal period would instead begin to run
September 5, when the district court ruled on the motion,
making the People's appeal due October 24.
[4] However, "[u]pon a showing of
excusable neglect," the appellate court may extend the
time for filing a notice of appeal up to thirty-five days.
C.A.R. 4(b)(3). "Excusable neglect involves a situation
where the failure to act results from circumstances which
would cause a reasonably careful person to neglect a
duty." Farmers Ins. Grp. v. Dist. Ct., 507 P.2d
865, 867 (Colo. 1973). Because our holding today establishes
that the People's appeal was timely, we do not address
the issue of excusable neglect.
[5] However, because the People in
Powers filed their motion to reconsider after the
interlocutory appeal timeline, we ultimately held that their
appeal was untimely. 47 P.3d at 689-90.