Colo. R. Crim. P. 12

As amended through Rule Change 2024(7), effective April 4, 2024

Rule 12 - Pleadings, Motions Before Trial, Defenses, and Objections

(a) Pleadings and Motions. Pleadings shall consist of the indictment or information or complaint, or summons and complaint, and the pleas of guilty, not guilty, not guilty by reason of insanity, and nolo contendere. All other pleas, demurrers, and motions to quash are abolished and defenses and objections raised before trial which heretofore could have been raised by one or more of them shall be raised only by motion to dismiss or to grant appropriate relief, as provided in these Rules.

(b) The Motion Raising Defenses and Objections.

(1) Defenses and Objections Which May Be Raised. Any defense or objection which is capable of determination without the trial of the general issue may be raised by motion.

(2) Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indictment or information or complaint, or summons and complaint, other than that it fails to show jurisdiction in the court or to charge an offense, may be raised only by motion. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection constitutes a waiver of it, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the proceeding. When a motion challenging the constitutionality of the statute upon which the charge is based or asserting lack of jurisdiction is made after the commencement of the trial, the court shall reserve its ruling on that motion until the conclusion of the trial.

(3) Time of Making Motion. The motion shall be made within 21 days following arraignment.

(4) Hearing on Motion. A motion before trial raising defenses or objections shall be determined before the trial unless the court orders that it be deferred for determination at the trial of the general issue except as provided in Rule 41. An issue of fact shall be tried by a jury if a jury trial is required by the Constitution or by statute. All other issues of fact shall be determined by the court with or without a jury or on affidavits or in such other manner as the court may direct.

(5) Effect of Determination. If a motion is determined adversely to the defendant, he shall be permitted to plead if he has not previously pleaded. A plea previously entered shall stand.

Colo. R. Crim. P. 12

Source: (b)(3) amended and adopted December 14, 2011, effective 7/1/2012.

Annotation I. General Consideration. Technical noncompliance with Crim. P. 16 that does not cause prejudice to defendant will not constitute reversible error. People v. Hernandez, 695 P.2d 308 (Colo. App. 1984). Applied in Stapleton v. District Court, 179 Colo. 187, 499 P.2d 310 (1972); People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975); People v. Davis, 194 Colo. 466, 573 P.2d 543 (1978); People v. Dickinson, 197 Colo. 338, 592 P.2d 807 (1979); People v. Velasquez, 641 P.2d 943 (Colo. 1982); People v. Peterson, 656 P.2d 1301 (Colo. 1983). II. Pleading and Motions. Legal effect of present nomenclature for old procedures is the same. Although the granting of motions to quash, demurrers, pleas in bar, pleas in abatement, motions in arrest of judgment, and the declarations of a statute unconstitutional have been abolished by Crim. P. 12(a) and Crim. P. 29(a) the legal effect of the present nomenclature for those procedures is the same, that is, a ruling adverse to the state effectively terminates its prosecution of the defendant and results in a "final judgment". People v. Cochran, 176 Colo. 364, 490 P.2d 684 (1971). III. Motion Raising Defenses and Objections. A. Defenses and Objections Which May be Raised. Motion to suppress a lineup identification is within the scope of this subsection (b)(1). People v. Renfrow, 172 Colo. 399, 473 P.2d 957 (1970). B. Defenses and Objections Which Must be Raised. Waiver of defenses and objections by failure to raise. Failure to raise defenses and objections referred to in subsection (b)(2) by motion constitutes waiver of the defenses and objections. Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970). Motions not within scope of subsection (b)(2). A motion for the return of property and to suppress evidence is not a defense or objection based on defects in the institution of the prosecution or in the indictment, information, or complaint, and, thus, does not fall within the scope of subsection (b)(2). Adargo v. People, 173 Colo. 323, 478 P.2d 308 (1970). A motion to suppress is not a "defense or objection" based on defects listed in this section. People v. Robertson, 40 Colo. App. 386, 577 P.2d 314 (1978). Trial court should entertain motion to dismiss for lack of jurisdiction at whatever stage of the proceedings the question is raised. Maddox v. People, 178 Colo. 366, 497 P.2d 1263 (1972). Absence of verification on information is not jurisdictional. Quintana v. People, 168 Colo. 308, 451 P.2d 286 (1969). Rather, it is for benefit of defendant and is waived unless timely objection is made thereto. Quintana v. People, 168 Colo. 308, 451 P.2d 286 (1969); Bergdahl v. People, 27 Colo. 302, 61 P. 228 (1900); Curl v. People, 53 Colo. 578, 127 P. 951 (1912); Harris v. Municipal Court, 123 Colo. 539, 234 P.2d 1055 (1951); Bustamante v. People, 136 Colo. 362, 317 P.2d 885 (1957); Mora v. People, 172 Colo. 261, 472 P.2d 142 (1970); Workman v. People, 174 Colo. 194, 483 P.2d 213 (1971); Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971); Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971). C. Time of Making Motion. Defects raisable in motion in arrest of judgment or for new trial. When objections to the want of a verifying affidavit and to the competency and credibility of the affiant are raised by the defendant for the first time in a motion in arrest of judgment or in the alternative for a new trial, and the record does not reveal that any objections were raised prior to that time, although the opportunity existed, then the objections come too late. Maraggos v. People, 175 Colo. 130, 486 P.2d 1 (1971). Insufficiency of indictment assertable on appeal. Although defendant did not raise the insufficiency of the indictment at trial or in his motion for new trial, he is not thereby precluded from asserting that defect on appeal. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975). Selective prosecution claim must be raised prior to trial. A selective prosecution claim is an objection based upon a defect in the institution of the prosecution, and, therefore, a defendant's failure to raise the objection in a timely motion constitutes a waiver of the objection. People v. Gallegos, 226 P.3d 1112 (Colo. App. 2009). Motion made after trial but before sentencing. A motion challenging the constitutionality of a statute preserves the issue on appeal where the motion is made after oral argument on motion for judgment of acquittal or for new trial, but before sentencing. People v. Cagle, 751 P.2d 614 (Colo. 1988). A substantive defect in an information may be raised at any time during the proceedings. People v. Williams, 961 P.2d 533 (Colo. App. 1997), aff'd in part and rev'd in part on other grounds, 984 P.2d 56 (Colo. 1999). Exceptions to duplicitous count must be made before trial. A duplicitous count in a criminal information is only a matter of form, and exceptions which go merely to form must be made before trial. Russell v. People, 155 Colo. 422, 395 P.2d 16 (1964); Specht v. People, 156 Colo. 12, 396 P.2d 838 (1964). Compulsory joinder defense not waived. Where compulsory joinder defense was not available when prosecution of felony charge was instituted because second charge had not been filed, defendant did not waive compulsory joinder claim when he failed to raise issue within twenty days after his arraignment on felony charge and, therefore, claim was not based on a defect in institution of prosecution and, thus, this rule did not prevent defendant from moving to dismiss. People v. Rogers, 742 P.2d 912 (Colo. 1987). Waiver of objection to legality of arrest. A defendant who fails to object to his arrest before trial waives his right to challenge the legality of his arrest. Massey v. People, 179 Colo. 167, 498 P.2d 953 (1972); People v. Hernandez, 695 P.2d 308 (Colo. App. 1984). Admissibility of alibi evidence. While a showing by a defendant of good cause for noncompliance with this rule is a proper factor to be considered by a trial court in deciding whether alibi evidence should be admitted, justification for noncompliance is not the sole determinant of admissibility. People v. Moore, 36 Colo. App. 328, 539 P.2d 489 (1975). The critical consideration for admissibility of alibi evidence is whether the proffered alibi evidence should be admitted in order to assure the defendant a fair trial. People v. Moore, 36 Colo. App. 328, 539 P.2d 489 (1975). D. Hearing. Defendant's burden on motion to dismiss for want of due prosecution. A motion for discharge or for dismissal for want of due prosecution of a charge of crime must be sustained by the accused; he has the burden of showing that he was not afforded a speedy trial. Jordan v. People, 155 Colo. 224, 393 P.2d 745 (1964).