Opinion
March 18, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 528
Myers, Woodford & Hoppin, Frederick J. Myers, Denver, for plaintiff-appellant.
Alexander M. Hunter, Dist. Atty., Peter A. Hofstrom, Deputy Dist. Atty., Boulder, for defendant-appellee.
ENOCH, Judge.
Rentex, Incorporated, appeals from a judgment dismissing its complaint filed pursuant to C.R.C.P. 106, in which it alleged the county court had improperly dismissed its appeal of a criminal conviction to district court. We reverse.
Rentex was charged in the Boulder County Court with violation of certain provisions of s 12--61--504, C.R.S.1973. After trial to the court Rentex was found guilty on two counts and judgment was entered on December 19, 1973. On or about January 2, 1974, trial counsel for Rentex timely filed a notice of appeal with the county court together with an appeal bond and a deposit for completion of the trial transcript. That same day the appeal was docketed in the district court. The trial transcript was filed with the county court by the reporter on January 30, 1974, 42 days after entry of judgment. On February 6, the county court on its own motion dismissed the appeal. Two days later Rentex, alleging excusable neglect, filed a motion with the county court for extension of time within which to lodge the transcript in that court. This motion was denied without a hearing. Rentex then, with present counsel, initiated this C.R.C.P. 106 proceeding to seek a reversal of the county court's order of dismissal.
The district court determined that the applicable rule of criminal procedure made filing the transcript within 40 days after the judgment a jurisdictional requirement and that failure to request an extension of time within the time limit was a proper basis for dismissal of the appeal. The district court further held that the dismissal was proper under the applicable rule of criminal procedure because the notice of appeal failed to state with particularity the alleged errors in the county court or other grounds relied upon for the appeal.
The first allegation of error is that the district court applied the wrong rules of criminal procedure. We agree. From a reading of the court's findings and rules cited it is quite apparent that the court was applying Crim.P. 37 (as amended April 1, 1974), hereinafter referred to as the new rule. Though the hearing in the district court took place after April 1, 1974, all of the proceedings in the county court which were the subject of the district court review took place before the effective date of the new rule. The court should have applied Crim.P. 37 as that rule was worded prior to April 1, 1974, (hereinafter the old rule) since that was the provision in effect at the time Rentex filed its notice of appeal.
The next question is whether the old and new rules differ sufficiently to justify a different result in this case. Subsection (b) of the new rule adds the requirement that the notice of appeal from county court to district court 'shall state with particularity the alleged errors of the county court or other grounds relied upon for the appeal . . ..' This is a requirement not contained in the old rule. The notice of appeal filed by Rentex was sufficient to meet the requirements of the old rule. Thus it was error for the district court to have affirmed the dismissal on this ground. Whether such a failure to comply with the new rule would justify dismissal of an appeal is not before us and this opinion is not to be interpreted as a determination of that point.
The determination that failure to lodge the transcript in the county court within the 40 days resulted in the county court losing jurisdiction and thereby having no authority to consider a motion for extension of time, is incorrect. A record on appeal does not have to include a transcript of the evidence. In some cases there is no evidence to transcribe and in other cases the transcript is not needed due to the nature of the issues on appeal. Such contingencies were obviously contemplated by the Supreme Court in drafting the old rule, which provided in part that the 'record shall also include a transcription of such part of the actual evidence and other proceedings as the parties may designate or, in lieu of transcription, to which they may stipulate.' Whether the record includes a full transcript, a partial transcript, or no transcript at all is the choice of the parties and not the trial court. Where a party has elected to include a transcript and it is not lodged with the court within the 40 day time period or an extension thereof, it may be appropriate for the trial court to strike the transcript from the record, See Buder v. Reynolds, 175 Colo. 28, 486 P.2d 432, but it is not grounds for dismissal of the appeal by the trial court.
The final issue raised is the county court's refusal to consider plaintiff's motion for extension of time to lodge the transcript. Believing that the expiration of the 40 days denied it jurisdiction, the county court declined to hear the merits of the motion. The district court affirmed this interpretation. Both courts failed to consider Crim.P. 45(b)(2) which provides:
'(b) Enlargement. When an act is required or allowed to be performed at or within a specified time, the court for cause shown may at any time in its discretion:
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(2) upon motion, permit the act to be done after expiration of the specified period if the failure to act on time was the result of excusable neglect.'
Nothing in the rules or in case law makes this rule inapplicable. Thereafter, the county court did have discretion to determine if, in fact, there was excusable neglect on the part of trial counsel which would justify the granting of permission to lodge the transcript two days late. On remand the county court should conduct a hearing on the motion and make a determination on the merits of plaintiff's motion before the record on appeal is certified and filed with the district court.
The judgment is reversed and the cause remanded with directions to reinstate the appeal and for further proceedings consistent with this opinion.
PIERCE and STERNBERG, JJ., concur.