Colorado Criminal Direct Appeals
A direct appeal is the first and, for most people, the only chance to ask a higher court to review what happened in the district court. This page explains the basics of how a Colorado criminal direct appeal actually works: the deadlines, what the record is and why preservation matters, the standards of review that decide most cases, what happens after the briefs are filed, and how a direct appeal differs from a Rule 35 postconviction motion.
What a direct appeal is, and what it is not
A direct appeal is a challenge to legal error that appears in the record of the trial court proceedings. It is not a second trial. The Colorado Court of Appeals does not hear live witnesses, receive new exhibits, or re-weigh credibility. It reads the transcripts, the pleadings, the jury instructions and the exhibits that were already before the district court, and it decides whether the trial court committed an error serious enough to require reversal, a new trial, or resentencing.
That limitation is the most important thing to understand before you start. If the real problem in a case is something that never made it into the record — like an investigation that was never done, a conversation in the hallway, a witness nobody called — a direct appeal is usually the wrong vehicle. Those claims generally belong in a Crim. P. 35(c) postconviction proceeding, where a court can hold an evidentiary hearing and take new testimony.
What are the deadlines?
Notice of appeal. Under C.A.R. 4(b), a defendant's notice of appeal in a criminal case must generally be filed within 49 days after entry of the judgment (a sentencing hearing) or the order being appealed. This deadline is short and it is taken seriously. If it has passed, ask a lawyer immediately whether any avenue remains; do not assume the answer is no, and do not assume it is yes.
Post-trial motions in the district court. A motion for a new trial under Crim. P. 33 is generally due 14 days after the verdict, and a motion to reduce a legal sentence under Crim. P. 35(b) has its own separate deadline measured from sentencing or from the conclusion of the appeal. A motion to correct an illegal sentence under Crim. P. 35(a) may be filed at any time.
What is "the record," and why does preservation matter?
The record on appeal is the minute orders from each day of the case, the pleadings, the exhibits, and the transcripts of the proceedings. An appellate court will generally not consider facts outside it. Ordering the right transcripts is a substantive decision, not clerical work: an issue that is not transcribed is, practically speaking, an issue that cannot be argued.
Preservation is how an issue got into the record. If trial counsel objected, stated a ground, and obtained a ruling, the issue is preserved and reviewed under a more forgiving standard. If no objection was made, the issue is unpreserved and reviewed for plain error, which is a much harder test. Part of a careful record review is identifying which issues were preserved, which were not, and whether a failure to preserve is itself a problem worth raising later as ineffective assistance of counsel.
Standards of review
The standard of review often matters more than the underlying issue. In Colorado criminal appeals the recurring ones are:
- De novo — for questions of law, constitutional questions, and the interpretation of statutes and rules. The appellate court decides the question fresh, without deference.
- Abuse of discretion — for most evidentiary rulings, continuances, and sentencing within the statutory range. The question is whether the ruling was manifestly arbitrary, unreasonable, or unfair.
- Clear error — for a trial court's findings of historical fact, which are upheld if supported by the record.
- Harmless error — for preserved, non-constitutional error: reversal is required only if the error substantially influenced the verdict or impaired the fairness of the trial.
- Constitutional harmless error — for preserved constitutional error: the State must show the error was harmless beyond a reasonable doubt.
- Plain error — for unpreserved error: the error must be obvious and substantial and must so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment.
- Structural error — a small category of defects that require automatic reversal without a harmlessness inquiry.
Colorado's framework for these standards is set out in Hagos v. People, 2012 CO 63. Identifying the correct standard for each issue, and arguing for the most favorable one that the record supports, is a substantial part of the work of writing a good brief.
What happens after the briefs are filed?
The sequence is an opening brief, an answer brief from the Attorney General, and a reply brief. Extensions are common in complex cases with long records. After briefing closes, the case is at issue and is assigned to a division of the Court of Appeals.
Most criminal appeals in Colorado are decided on the briefs, without oral argument. When argument is granted, it is short and the questions come from the division. There is then a wait — often many months — before an opinion issues. The opinion may be published or unpublished; either way it decides the case.
What can the court actually do?
A division of the Court of Appeals may affirm, reverse outright, reverse and remand for a new trial, vacate a sentence and remand for resentencing, remand for further findings or a limited hearing, or correct a specific part of the judgment such as a fee, a restitution order, or a mittimus entry. Partial relief is common and can be meaningful even when the conviction itself stands.
What comes after the Court of Appeals?
A party who loses may seek rehearing before the same division, and may then file a petition for certiorari asking the Colorado Supreme Court to review the decision. Certiorari is discretionary; the supreme court takes a small fraction of the petitions filed and grants review because an issue matters beyond the individual case, not simply because the result below was wrong. These deadlines are short and run from the date of the opinion or the denial of rehearing.
Direct appeal or Rule 35 proceeding?
| Direct appeal | Rule 35(c) proceeding | |
|---|---|---|
| Where it starts | Colorado Court of Appeals | District court where the case was tried |
| What may be considered | Only the existing record | Evidence outside the record, including testimony |
| Typical claims | Trial court legal error, evidentiary rulings, instructions, sentencing legality | Ineffective assistance, undisclosed evidence, newly discovered evidence, constitutional claims that depend on facts outside the record |
| Hearing | Rare; argument only | An evidentiary hearing may be required |
| Timing | Filed shortly after judgment | Usually after the direct appeal concludes, subject to statutory limits |
The two are not alternatives so much as different tools, and the choice of which claim goes where is one of the most consequential decisions in a postconviction case.
Who actually writes the brief?
At many firms the record is summarized by a paralegal or contract attorney and the brief is drafted by someone the client never meets. At Tillman Clark Law there is no one else: I read every page of the record myself and I write every brief myself. That is also why the caseload here is deliberately small.
If you want to understand what to look for in any appellate lawyer — not just this one — see How to Choose a Colorado Criminal Appeals Attorney.
Talk with Tillman
Consultations are free, and you will speak with me rather than with staff. Contact me here or call 720-507-5814.
Written by Tillman Patrick Clark, Tillman Patrick Clark, LLC, Denver, Colorado. Last reviewed: July 31, 2026. This page is general information about Colorado appellate procedure and is not legal advice. Rules, statutes and deadlines change; confirm current requirements with a lawyer about your specific case.