A common problem in family law cases is a litigant's disregard for court orders. For example, one parent may fail to pay child support or maintenance, or a parent will refuse to allow the other parent to visit the child. The Court's orders, such as the orders in the Temporary and Final Orders, should be respected and followed, and one method of enforcing these orders is by holding the guilty party in contempt of court.
Civil contempt actions in Colorado are governed by Rule 107 of the Colorado Rules of Civil Procedure. There are two types of contempt actions: direct contempt and indirect contempt. Direct contempt occurs in the court's presence (either the court sees or hears the action), and is so extreme that no warning is necessary or the actions have been repeated despite the court's warning to stop. Indirect contempt, on the other hand, occurs outside the presence of the court.
If the Court finds that the person is guilty of contempt, the court can choose to impose remedial sanctions or punitive sanctions. The purpose of remedial sanctions is to force the litigant to comply with the Court's orders. For example, if a parent is guilty of contempt for failing to abide by the parenting plan, the court can remedy the action by granting the other parent the proper parenting time. The court may also order the guilty parent to pay the attorney's fees of the contempt action.
For punitive sanctions, the Court can impose a sentence similar to a sentence in a criminal case, such as imposing a fine or jail on the guilty party. Imposing punitive sanctions is more serious than imposing remedial sanctions, and the burden of proving the criminal sanctions is more difficult than for remedial sanctions.
Friday, May 20, 2011
Tuesday, March 8, 2011
Mechanic's Liens
In construction cases, contractors and subcontractors often use a mechanic's lien to make sure they are paid for the work they perform. Here are the key issues and necessary steps to file a mechanic's lien in Colorado.
First, the person filing the lien (claimant) must be a person who can legally utilize the mechanic's lien statutes. Generally speaking, claimants are contractors, subcontractors, laborers, and persons who supply the material for the project. If the claimant performed service or provided supplies to benefit the land, then there is a pretty good chance the claimant can use the lien laws to make sure payment is made.
Next, the claimant must file a Notice of Intent to File a Lien. This notice is sent to the contractor and the landowner. This must be sent prior to the filing of the lien or else the lien will fail. The Notice of Intent must also be sent via certified mail.
Following 10 days after mailing the Notice of Intent to File a Lien, the claimant may record the lien with the Clerk and Recorder's Office. Once recorded, all persons will have record notice that the claimant has filed a lien against the property.
In Colorado, the claimant must make sure the lien is filed within four months (and in some cases two months) following the last day in which the claimant performed work on the project. As with mailing the Notice of Intent, the timely filing of the lien is critical to the case, and a failure to abide by the time limits is fatal.
Of course, once the lien is recorded, this does not automatically mean that the claimant will be paid for the work performed on the project. It will, however, give the claimant a bargaining tool and leverage when negotiating a settlement and getting paid. Many times the claimant will negotiate with the land owner for payment of the work performed in exchange for releasing the lien. Land owners do not want their properties encumbranced by liens, especially if they wish to sell the properties to the general public. If negotiating a settlement does not work, the claimant can foreclose of the lien by judicial process. Additionally, the claimant could seek for monetary damages by filing a traditional civil suit against the contractor or landowner for unjust enrichment or breach of contract.
First, the person filing the lien (claimant) must be a person who can legally utilize the mechanic's lien statutes. Generally speaking, claimants are contractors, subcontractors, laborers, and persons who supply the material for the project. If the claimant performed service or provided supplies to benefit the land, then there is a pretty good chance the claimant can use the lien laws to make sure payment is made.
Next, the claimant must file a Notice of Intent to File a Lien. This notice is sent to the contractor and the landowner. This must be sent prior to the filing of the lien or else the lien will fail. The Notice of Intent must also be sent via certified mail.
Following 10 days after mailing the Notice of Intent to File a Lien, the claimant may record the lien with the Clerk and Recorder's Office. Once recorded, all persons will have record notice that the claimant has filed a lien against the property.
In Colorado, the claimant must make sure the lien is filed within four months (and in some cases two months) following the last day in which the claimant performed work on the project. As with mailing the Notice of Intent, the timely filing of the lien is critical to the case, and a failure to abide by the time limits is fatal.
Of course, once the lien is recorded, this does not automatically mean that the claimant will be paid for the work performed on the project. It will, however, give the claimant a bargaining tool and leverage when negotiating a settlement and getting paid. Many times the claimant will negotiate with the land owner for payment of the work performed in exchange for releasing the lien. Land owners do not want their properties encumbranced by liens, especially if they wish to sell the properties to the general public. If negotiating a settlement does not work, the claimant can foreclose of the lien by judicial process. Additionally, the claimant could seek for monetary damages by filing a traditional civil suit against the contractor or landowner for unjust enrichment or breach of contract.
Thursday, February 17, 2011
Protection Orders
A common legal concept that crops up in divorce and criminal cases is protection orders. A protection order is a Court order to prevent the restrained person from doing certain things, such as contacting, injuring, harassing, or threatening the protected person or entering the protected party's premises. See C.R.S. 13-14-101(2.4)(a). The protection order is issued by the court, and although some may perceive it as a piece of paper that is easily ignored, the weight and authority behind the protection order is real and has significant legal consequences if violated.
There are two types of protection orders: civil protection orders and criminal protection orders. A civil protection issue may be issued for the following reasons: (1) to prevent assaults and threatened bodily harm, (2) to prevent domestic abuse, (3) to prevent emotional abuse of the elderly or of an at-risk adult, and (4) to prevent stalking. C.R.S. 13-14-102. If a person feels threatened by the actions or behavior of another, a protection order is one method of protecting one's self and notifying the restrained person that this behavior must stop.
The civil protection order begins with the filing of a Motion for a Temporary Civil Protection Order, and if the Court finds that an imminent danger exists toward the person seeking protection, the Court will issue a Temporary Civil Protection Order. Along with this Temporary Civil Protection Order the Court will issue a citation for the respondent to appear before the Court to show cause as to why the protection order should not be made permanent.
In the criminal realm, a mandatory protection order is issued in every criminal case against any person accused of committing a crime. See C.R.S. 18-1-1001. The protection order is usually issued at the accused's first appearance before the Judge. The general criminal protection order prohibits the restrained party from harassing, molesting, intimidating, retaliating against, or tampering with any witness or alleged victim of the acts charged. In addition to these orders, the Court can prohibit the defendant from having contact with the alleged victim or others, or prohibit the defendant from entering the premises or home.
The existence of a protection order has real-life implications. For example, the protection order may prevent a father or mother from seeing their children, or a homeowner from going back to a residence. It may include prohibitions against consuming alcohol. If violated, the person faces criminal charges or being held in contempt, both of which involve the possibility of jail or a sentence to probation. Sometimes, when a person is charged with a protection order violation and a separate criminal offense, the district attorney may use the protection order as leverage for a plea bargain. The protection order can also be used as leverage in family law matters like divorce and child custody.
Whether you are using the protection order as a sword or trying to protect yourself from its grasp, numerous legal questions arise and steps should be taken to make sure the protection order is appropriate or not.
There are two types of protection orders: civil protection orders and criminal protection orders. A civil protection issue may be issued for the following reasons: (1) to prevent assaults and threatened bodily harm, (2) to prevent domestic abuse, (3) to prevent emotional abuse of the elderly or of an at-risk adult, and (4) to prevent stalking. C.R.S. 13-14-102. If a person feels threatened by the actions or behavior of another, a protection order is one method of protecting one's self and notifying the restrained person that this behavior must stop.
The civil protection order begins with the filing of a Motion for a Temporary Civil Protection Order, and if the Court finds that an imminent danger exists toward the person seeking protection, the Court will issue a Temporary Civil Protection Order. Along with this Temporary Civil Protection Order the Court will issue a citation for the respondent to appear before the Court to show cause as to why the protection order should not be made permanent.
In the criminal realm, a mandatory protection order is issued in every criminal case against any person accused of committing a crime. See C.R.S. 18-1-1001. The protection order is usually issued at the accused's first appearance before the Judge. The general criminal protection order prohibits the restrained party from harassing, molesting, intimidating, retaliating against, or tampering with any witness or alleged victim of the acts charged. In addition to these orders, the Court can prohibit the defendant from having contact with the alleged victim or others, or prohibit the defendant from entering the premises or home.
The existence of a protection order has real-life implications. For example, the protection order may prevent a father or mother from seeing their children, or a homeowner from going back to a residence. It may include prohibitions against consuming alcohol. If violated, the person faces criminal charges or being held in contempt, both of which involve the possibility of jail or a sentence to probation. Sometimes, when a person is charged with a protection order violation and a separate criminal offense, the district attorney may use the protection order as leverage for a plea bargain. The protection order can also be used as leverage in family law matters like divorce and child custody.
Whether you are using the protection order as a sword or trying to protect yourself from its grasp, numerous legal questions arise and steps should be taken to make sure the protection order is appropriate or not.
Monday, February 14, 2011
Court Appearance: What happens next?
Many of my clients ask me: what happens at the next Court date? Others ask me how long before the jury trial will occur, or when does sentencing take place. The best way to answer these questions is to explain the steps in the Criminal Justice system, beginning with the initial charges or police contact and ending with sentencing and postconviction relief.
In Colorado, there are three common ways in which a criminal case may begin in County and District Court: by summons and complaint, warrantless arrest and complaint, and arrest warrant followed by complaint. See C.R.S. 16-2-104, 16-5-101; C.R.C.P. 3, 4, 4.1, 4.2. In District Court, there is also the method of Grand Jury indictment, although in state Court this does not occur frequently.
The typical method of initiating a County Court criminal case is by summons and complaint. A peace officer may issue a summons and complaint for a misdemeanor or petty offense if the officer has probable cause to believe the person committed the offense. C.R.S. 16-2-104. For traffic violations, many times the police officer issues the summons and complaint to the offender, listing the charged offense and the date for court. For misdemeanors such as harassment, 3rd Degree Assault, and criminal mischief, the police officer may develop probable cause at the crime scene and issue the offender a summons and complaint. Again, the summons will state the applicable offense with a court date.
If the officer feels that an arrest is necessary, the officer may arrest the person based on probable cause that the offender committed the offense, and the offender shall be taken without unnecessary delay before the nearest available county judge. C.R.S. 16-2-112, 16-3-102. For felony offenses, the police officer typically arrests the person rather than issuing a summons to appear in Court.
If the officer has probable cause to arrest the person, but is unable to immediately arrest the individual, the officer can apply for an arrest warrant for the person. In this scenario the officer prepares an affidavit for warrant arrest, and if the Court finds there is probable cause for the arrest, an arrest warrant will issue. In this scenario the charge may be filed simultaneously with the request for arrest warrant, or the District Attorney may file charges after he has appeared before the Court. See C.R.S. 16-3-108.
At the first appearance in Court, the Judge will advise the defendant of his rights and possible penalties. In Colorado, for misdemeanor, traffic offenses, and petty offenses the defendant will have an opportunity to speak with a Deputy District Attorney to determine if the defendant wishes to accept a plea offer in exchange for a guilty plea. Keep in mind that the legal system in America is an adversarial system, which means that there are two different sides to the process: the prosecutor and the defendant. The prosecutor's responsibility is to protect the community and serve the victims in the case. The prosecutor does not have an obligation to assist and serve the best interests of the defendant. The defendant can and should speak with an attorney before choosing to accept a plea agreement. The defendant can speak with and retain an attorney prior to this first court appearance, or ask for additional time to seek the assistance of counsel. Judges typically ensure the defendant's right to counsel by granting continuances (within reason) of 2-4 weeks. The accused also has the right to court appointed counsel if he qualifies for the public defender's services.
In District Court, under some circumstances the Defendant may be entitled to a Preliminary Hearing. A Preliminary Hearing is a hearing to determine if there is probable cause for the felony charges filed against the accused. A defendant is entitled to a preliminary hearing if he is accused of a class one, two, or three felony, or if accused of a class four, five, or six felony AND the defendant is in custody at the time of the hearing. C.R.S. 16-5-301. A defendant is also entitled to a preliminary hearing for any felony offense that requires mandatory incarceration if convicted of the crime (such as the Class six felony Violation of Bail Bond Conditions or the Class Four Felony 2nd Degree Assault).
The defendant may choose to plead not guilty and schedule a trial at any time. In District Court, a person typically pleads not guilty at the time of Arraignment (depending on the case about 2-4 months after the first appearance in court). A number of factors weigh into the question of whether to plead not guilty and have a trial. In County and District Court, once a defendant pleads not guilty the Court must hold the trial within six months. Also known as the Right to a Speedy Trial, the Court must dismiss the charges against the defendant with prejudice if the trial is not held within this time.
Between the not guilty plea and trial, the parties often conduct motion hearings in preparation for trial. A motion hearing is held to determine the admissibility of certain types of evidence, such as the statements to a law enforcement officer or evidence obtained by a police officer initiated search.
At trial, the accused can choose to either have a trial by jury or to the Court. In the overwhelming majority of cases in Colorado, the defendant chooses a jury trial, but in unique situations the defendant may want to have the trial to the Court. A defendant is entitled to six jurors in County Court, and in District Court, the defendant has twelve. Many judges also select alternate jurors in the off-chance that one of the jurors is unable to finish his jury service.
Upon an acquittal at trial the charge(s) against the defendant are dismissed. If the jury or court finds the defendant guilty of any one or multiple offenses, the judge will sentence the defendant for each guilty offense. For felony offenses, the judge may sentence the offender to a term of probation (and jail is possible as a condition of probation), or to serve in work-release type of setting (called Community Corrections), or to a period of incarceration in the Department of Corrections followed by parole. For misdemeanor and traffic offenses, the Court may sentence the offender to jail, probation (and possibly jail as a condition of probation), work-release, or other alternate forms of incarceration (such as electronic home monitoring, day-reporting, and work-enders).
Following the sentencing hearing, the Defendant can file a motion for new trial, or seek relief by appellate review in the Colorado Court of Appeals and the Colorado Supreme Court. When seeking appellate review, it is extremely important that all deadlines are adhered to. If these procedures are not followed there is the likelihood that the appellate courts will forgo reviewing the claims.
The Criminal Justice system can be a labyrinth of court dates, appearances, procedures, and rules. Step by step, attorneys assist defendants through the process, making sure their rights are protected and their voices heard. There are countless decisions that can make or break a case, and the attorney should guide the accused to the best possible outcome and resolution.
In Colorado, there are three common ways in which a criminal case may begin in County and District Court: by summons and complaint, warrantless arrest and complaint, and arrest warrant followed by complaint. See C.R.S. 16-2-104, 16-5-101; C.R.C.P. 3, 4, 4.1, 4.2. In District Court, there is also the method of Grand Jury indictment, although in state Court this does not occur frequently.
The typical method of initiating a County Court criminal case is by summons and complaint. A peace officer may issue a summons and complaint for a misdemeanor or petty offense if the officer has probable cause to believe the person committed the offense. C.R.S. 16-2-104. For traffic violations, many times the police officer issues the summons and complaint to the offender, listing the charged offense and the date for court. For misdemeanors such as harassment, 3rd Degree Assault, and criminal mischief, the police officer may develop probable cause at the crime scene and issue the offender a summons and complaint. Again, the summons will state the applicable offense with a court date.
If the officer feels that an arrest is necessary, the officer may arrest the person based on probable cause that the offender committed the offense, and the offender shall be taken without unnecessary delay before the nearest available county judge. C.R.S. 16-2-112, 16-3-102. For felony offenses, the police officer typically arrests the person rather than issuing a summons to appear in Court.
If the officer has probable cause to arrest the person, but is unable to immediately arrest the individual, the officer can apply for an arrest warrant for the person. In this scenario the officer prepares an affidavit for warrant arrest, and if the Court finds there is probable cause for the arrest, an arrest warrant will issue. In this scenario the charge may be filed simultaneously with the request for arrest warrant, or the District Attorney may file charges after he has appeared before the Court. See C.R.S. 16-3-108.
At the first appearance in Court, the Judge will advise the defendant of his rights and possible penalties. In Colorado, for misdemeanor, traffic offenses, and petty offenses the defendant will have an opportunity to speak with a Deputy District Attorney to determine if the defendant wishes to accept a plea offer in exchange for a guilty plea. Keep in mind that the legal system in America is an adversarial system, which means that there are two different sides to the process: the prosecutor and the defendant. The prosecutor's responsibility is to protect the community and serve the victims in the case. The prosecutor does not have an obligation to assist and serve the best interests of the defendant. The defendant can and should speak with an attorney before choosing to accept a plea agreement. The defendant can speak with and retain an attorney prior to this first court appearance, or ask for additional time to seek the assistance of counsel. Judges typically ensure the defendant's right to counsel by granting continuances (within reason) of 2-4 weeks. The accused also has the right to court appointed counsel if he qualifies for the public defender's services.
In District Court, under some circumstances the Defendant may be entitled to a Preliminary Hearing. A Preliminary Hearing is a hearing to determine if there is probable cause for the felony charges filed against the accused. A defendant is entitled to a preliminary hearing if he is accused of a class one, two, or three felony, or if accused of a class four, five, or six felony AND the defendant is in custody at the time of the hearing. C.R.S. 16-5-301. A defendant is also entitled to a preliminary hearing for any felony offense that requires mandatory incarceration if convicted of the crime (such as the Class six felony Violation of Bail Bond Conditions or the Class Four Felony 2nd Degree Assault).
The defendant may choose to plead not guilty and schedule a trial at any time. In District Court, a person typically pleads not guilty at the time of Arraignment (depending on the case about 2-4 months after the first appearance in court). A number of factors weigh into the question of whether to plead not guilty and have a trial. In County and District Court, once a defendant pleads not guilty the Court must hold the trial within six months. Also known as the Right to a Speedy Trial, the Court must dismiss the charges against the defendant with prejudice if the trial is not held within this time.
Between the not guilty plea and trial, the parties often conduct motion hearings in preparation for trial. A motion hearing is held to determine the admissibility of certain types of evidence, such as the statements to a law enforcement officer or evidence obtained by a police officer initiated search.
At trial, the accused can choose to either have a trial by jury or to the Court. In the overwhelming majority of cases in Colorado, the defendant chooses a jury trial, but in unique situations the defendant may want to have the trial to the Court. A defendant is entitled to six jurors in County Court, and in District Court, the defendant has twelve. Many judges also select alternate jurors in the off-chance that one of the jurors is unable to finish his jury service.
Upon an acquittal at trial the charge(s) against the defendant are dismissed. If the jury or court finds the defendant guilty of any one or multiple offenses, the judge will sentence the defendant for each guilty offense. For felony offenses, the judge may sentence the offender to a term of probation (and jail is possible as a condition of probation), or to serve in work-release type of setting (called Community Corrections), or to a period of incarceration in the Department of Corrections followed by parole. For misdemeanor and traffic offenses, the Court may sentence the offender to jail, probation (and possibly jail as a condition of probation), work-release, or other alternate forms of incarceration (such as electronic home monitoring, day-reporting, and work-enders).
Following the sentencing hearing, the Defendant can file a motion for new trial, or seek relief by appellate review in the Colorado Court of Appeals and the Colorado Supreme Court. When seeking appellate review, it is extremely important that all deadlines are adhered to. If these procedures are not followed there is the likelihood that the appellate courts will forgo reviewing the claims.
The Criminal Justice system can be a labyrinth of court dates, appearances, procedures, and rules. Step by step, attorneys assist defendants through the process, making sure their rights are protected and their voices heard. There are countless decisions that can make or break a case, and the attorney should guide the accused to the best possible outcome and resolution.
Saturday, February 12, 2011
Welcome
Welcome to the blog for the Law Office of James W. Giese, P.C. Our office has served the legal needs of Western Colorado since 1992. We are dedicated attorneys who fight for our clients in a professional and respectful manner.
We invite you to read our blog as we discuss legal principles and important issues of our community. Please contact us at your convenience to determine how we can best handle your legal needs.
We invite you to read our blog as we discuss legal principles and important issues of our community. Please contact us at your convenience to determine how we can best handle your legal needs.
Subscribe to:
Posts (Atom)