(a)Contents. The clerk of the court will issue the mandate with a copy of the appellate court judgment.(b)When Issued. Unless the court grants or removes a stay, or otherwise changes the time by order, the mandate will issue as follows:(1)In the Court of Appeals. Except as provided in subsections (A) and (B), the court of appeals mandate will issue no earlier than 42 days after entry of the judgment. (A) If the court extends the time to file a petition for rehearing but no petition is filed within the extended period, the mandate will issue following the last day of the extended period for filing the petition for rehearing or after the day specified by this rule, whichever occurs later. The mandate will issue no earlier than 28 days after the court denies the petition for rehearing.(B) In workers' compensation and unemployment insurance cases, the mandate will issue no earlier than 28 days after entry of the judgment, or 14 days after the court denies a timely petition for rehearing, whichever occurs later.(2)In the Supreme Court. The supreme court mandate will issue no earlier than 14 days after entry of the judgment unless a petition for rehearing is not permitted, in which case the court may issue the mandate immediately. If a petition for rehearing is denied, or if the court extends the time to file a petition for rehearing but no petition is filed within the extended period, the mandate will issue no earlier than 2 days after entry of the order denying the petition or the extended deadline for filing a petition. The supreme court must issue the mandate immediately when a copy of a United States Supreme Court order denying a petition for writ of certiorari is filed.(3)Bill of Costs. Consistent with C.A.R. 39(c)(2), any itemized and verified bill of costs and proof of service must be filed within 14 days after entry of the appellate mandate.(c)Staying the Mandate.(1)On Petition for Rehearing or Motion. The timely filing of a petition for rehearing or motion for stay of mandate stays the mandate until disposition of the petition or motion, unless the court orders otherwise.(2)Pending Petition for Writ of Certiorari in the Colorado Supreme Court. The timely filing of a petition for writ of certiorari pursuant to C.A.R. 52 stays the court of appeals mandate until disposition of the petition.(3)Pending Petition for Writ of Certiorari in the United States Supreme Court.(A) A party may move to stay the appellate mandate pending the filing of a petition for a writ of certiorari in the United States Supreme Court. The motion must be served on all parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay.(B) The court, or a judge or justice thereof, may stay issuance of the mandate until the petition for writ of certiorari is filed, or if review is timely sought, until the petition is ruled on, or, if review is granted, until final disposition of the case by the United States Supreme Court. A stay pending the filing of a petition for writ of certiorari must not exceed 90 days, unless the period is extended for good cause or unless the party who obtained the stay files a petition for the writ and so notifies the clerk of the appellate court, in writing, within the period of the stay, in which case the stay continues until disposition of the petition.(C) The court may require a bond or other security as a condition of granting or continuing a stay of the mandate.(d)Effective Date. The mandate is effective when issued.(e) Recall of Mandate. The court of appeals may recall its mandate, and the supreme court may recall any appellate mandate as it deems appropriate. Upon recall of a mandate, re-issuance of the mandate may be stayed pursuant to subsection (c) of this rule.Source: Entire rule amended and adopted November 20, 1998, effective 1/1/1999; entire rule amended and adopted and committee comment added and adopted December 14, 2000, effective 1/1/2001; committee comment corrected and effective 1/4/2001; (b) amended and adopted December 14, 2011, effective 1/1/2012, for all cases pending on or filed on or after January 1, 2012, pursuant to C.R.C.P. 1 b; amended and adopted by the Court, En Banc, February 24, 2022, effective 7/1/2022; amended and adopted by the Court, En Banc, 5/16/2024, effective immediately.Comments
2001
(1) The purpose of this amendment is to clarify that the Court of Appeals can extend the stay of the issuance of the mandate when an extension of time to file a petition for rehearing is timely filed. The rule change addresses the specific problem that arises when, after an extension has been granted, no petition for rehearing is filed. Practitioners had been concerned that, without having filed a petition for rehearing, any petition for certiorari filed beyond the time specified in the rule for stay of the issuance of the mandate would be untimely.
2016
(2) The amendments to this Rule are mainly structural, not substantive, and were made to provide better organization. They were modeled, in part, on F.R.A.P. 41. The title of the Rule changed to "Mandate," because the revisions created a more comprehensive rule. The Rule now contains separate subsections explaining when a mandate issues (subsection (b)); when a mandate may be stayed (subsection (c)); when a mandate becomes effective (subsection (d)); and when an appellate court may recall a mandate (subsection (e)).
(3) Rule 41.1 has been deleted, and its substance has been relocated to new subsections (c) and (e) of Rule 41.
Annotation Annotator's note. The following annotations include cases decided under prior versions of this rule. Intent is to establish finality of judgment. The mandate provided for in this rule intended to establish the finality of the judgment upon which the parties can rely. Garrett v. Garrett, 30 Colo. App. 167, 490 P.2d 313 (1971); Hrabczuk v. John Lucas Landscaping, 888 P.2d 367 (Colo. App. 1994). Direct attack upon the judgment after the mandate has issued is not contemplated by the appellate rules. Garrett v. Garrett, 30 Colo. App. 167, 490 P.2d 313 (1971). See Hrabczuk v. John Lucas Landscaping, 888 P.2d 367 (Colo. App. 1994). Lower court without jurisdiction until date mandate may issue. The date when the mandate may issue under this rule must be held to be the earliest date upon which the district court can acquire jurisidction. Until this occurs the lower court is without jurisdiction for any purpose. Norris v. Kelsey, 60 Colo. 297, 152 P. 1167 (1915); People v. Jones, 631 P.2d 1132 (Colo. 1981). Directions in remand "for consideration of the request for attorney fees" set out in order are controlling over language contained in mandate form regarding attorney fees issued by the clerk's office of the court. Hrabczuk v. John Lucas Landscaping, 888 P.2d 367 (Colo. App. 1994). Division exceeded its authority when it initially stayed and later withdrew the mandate because the court's authority to stay or withdraw a mandate expired when the supreme court denied the defendant's writ of certiorari. People v. Bonilla-Garcia, 51 P.3d 1035 (Colo. App. 2001). An intermediate appellate court has the inherent power to stay its mandate following the denial of certiorari by the supreme court upon a showing of "exceptional circumstances". A supervening change in governing law that calls into question the correctness of the court's decision satisfies the "exceptional circumstances" criteria. People v. McAfee, 160 P.3d 277 (Colo. App. 2007). Applied in People v. Martinez, 186 Colo. 388, 527 P.2d 534 (1974); Wiggins v. People, 199 Colo. 341, 608 P.2d 348 (1980).