Motion To Strike Notice Of Appeal

______________________________________________________

RICHARD (RICK) STANLEY,
Appellant

v.

THE CITY AND COUNTY OF DENVER
Appellee,

Attorneys for the City and County of Denver
J. Wallace Wortham, Jr., No. 5969
City Attorney
James C. Thomas, No. 13583
Paul W. Puckett. No. 5885
Assistant City Attorneys
201 W. Colfax Avenue, Dept. 1207
Denver, CO 80202
Telephone: 720-913-8050, Facsimile: 720-913-8010

Case No. 03CA1130

MOTION TO STRIKE NOTICE OF APPEAL

Appellee, City & County of Denver, Colorado, by and through its attorneys, J. Wallace Wortham, Jr., James C. Thomas and Paul W. Puckett, hereby move to strike the defendant?s Notice of Appeal, as follows:

1. The Appellant, Rick Stanley, (hereafter referred to as ?Stanley?), was charged with the unlawful carrying of a weapon in violation of Denver Revised Municipal Code 38-117(d) on December 15, 2001.

2. A trial to a jury of six was held on May 15-16, 2002 and Stanley was convicted of the above-mentioned charge.

3. On July 25, 2002, Stanley was sentenced to one hundred eighty days in the Denver County Jail. One hundred fifty days of the sentence was conditionally suspended on the condition that Stanley successfully complete a one-year probation, to include seventy-five hours of Useful Public Service, a fine of $500.00, a $100.00 probation fee and $29.00 in court costs. In-home detention was authorized for the remaining thirty days of the jail sentence.

4. Stanley filed an appeal of the municipal court conviction to the Denver District Court on August 23, 2002, simultaneously filing or attaching a ?Petition to Show Cause Why Judgment is Not Void.?

5. On December 13, 2002, the District Court issued a Show Cause Order granting Stanley thirty days to show cause why his appeal should not be dismissed for failure to prosecute.

6. On January 6, 2003, the City of Denver filed its Motion to Strike Notice of Appeal and to Dismiss Case for Failure to Prosecute.

7. On January 13, 2003 the District Court issued its Order that dismissed the appeal, without prejudice.

8. On January 15, 2003, Stanley filed a Response to Motion to Strike NOA and to Dismiss for Failure to Prosecute with the Denver District Court. Stanley also filed a Motion for Default Judgment and an Affidavit in Support of Default Judgment on January 15, 2003, with the Denver District Court.

9. On February 12, 2003, Stanley filed a Petition for Writ of Certiorari with the Colorado Supreme Court, case no. 03SC114.

10. On or about March 5, 2003, the City of Denver filed its Objection to Writ of Certiorari.

11. On March 11, 2003, the Supreme Court entered an Order staying lower court proceedings until the Court ruled on the Petition for Writ of Certiorari.

12. On April 21, 2003, Stanley filed a Motion to Vacate Lower Court Decision with the Supreme Court, which was denied by the Supreme Court by Order dated March 6, 2003.

13. On May 19, 2003, the Supreme Court issued an Order denying the Petition for Writ of Certiorari.

14. On June 18, 2003, the City received a Notice of Appeal to the Colorado Court of Appeals. Stanley?s Notice of Appeal alleges that the Court of Appeals ?is the next, best possible court to hear this [appeal from the Supreme Court] issue.?

15. It is the City?s position that the Colorado Court of Appeals is without jurisdiction to review decisions of the Colorado Supreme Court, if that is what Stanley is requesting. If Stanley?s Notice of Appeal is interpreted as a belated appeal of the Denver District Court decision, the Court of Appeals is similarly without jurisdiction to entertain the matter, based on the legal authority cited in paragraphs 16 and 17, supra.

16. C.R.S. 13-10-116 requires that the decision of a qualified municipal court of record shall be made to the district court in the county where the municipal court is located. The practice and procedure for such appeal shall be the same as provided in 13-6-310, for appeals from a county court to the district court.

17. C.R.S. 13-6-310(4) specifies that an appeal from the district court ?may be made only upon writ of certiorari issued in the discretion of the supreme court and pursuant to such rules as that court may promulgate.?

WHEREFOR, The City of Denver submits that Stanley has exhausted his appellate remedies and that the instant Notice of Appeal should be stricken and the case dismissed for want of jurisdiction.

Respectfully submitted,

J. Wallace Wortham, Jr.,No. 5969
City Attorney

James C. Thomas, No. 13853
Paul W. Puckett, No. 5885

_________________________
Paul W. Puckett

CERTIFICATE OF DELIVERY

I HEREBY CERTIFY that the foregoing MOTION TO STRIKE NOTICE OF APPEAL was delivered this 20th day of June, 2003, by placing the same in the U.S. Mail, postage prepaid, addressed to:

Richard Stanley
6280 E. 39th Ave.
Denver, CO 80207