James Newberry’s attorney files motion to dismiss
Grand County Commissioner James Newberry’s attorney has filed a motion to dismiss charges against Newberry on the grounds that the charges violate the statute of limitations.
Newberry is facing two felonies and a misdemeanor in relation to allegations that he falsified entries on county mileage reimbursement documents and “double-dipped,” charging both the county and the Colorado River District for the same mileage.
Investigator Jake Scott with the 5th Judicial District Attorney’s Office reviewed Newberry’s reimbursements from 2009 through 2013 and found around 2,600 miles that were “questionable,” according to an investigative report.
Court documents allege that Newberry double-dipped a total of around $3,800 in mileage and received around $1,500 from the county for mileage that he’d already been reimbursed for.
Newberry was charged with one felony count of attempting to influence a public servant, one felony county of embezzlement of public property and one misdemeanor count of official misconduct.
Pat Burke, Newberry’s attorney, filed a motion on Aug. 7 arguing that all three charges fall outside of the statute of limitations.
Colorado Revised Statutes dictate that an adult may not be prosecuted for a misdemeanor unless the complaint is filed within 18 months “after the commission of the offense.”
The criminal action described in all three charges is alleged to have occurred between Jan. 20, 2009 and Sept. 13, 2013.
Burke argues that, because the final complaint was filed on July 9, 2015, it falls outside of the 18-month limit.
However, CRS 16-5-401(4.5) states that “the period within which a prosecution must be commenced begins to run upon discovery of the criminal act” for certain acts.
The list includes official misconduct, embezzlement and attempting to influence a public servant.
Burke employs a different argument regarding the two felonies in the case.
The window for prosecuting those felonies is three years from the discovery of the criminal act, according to CRS.
In the motion, Burke states that, given the July 2015 filing date, most of the time period in question falls outside the three-year limit.
Citing previous case law in Bustamante v District Court, Burke writes, “if a criminal charging document charges an offense date which is partly within the statute of limitations and partly outside it, then the entire charge violates the statute of limitations.”
However, the case Burke cites differs from Newberry’s in that no specific act was alleged to have occurred within the statute of limitations, according to the opinion in Bustamante.
CRS also state that for an offense based on a series of acts, the period of limitation “starts at the time when the last act in the series of acts is committed.”
A hearing on the motion to dismiss has been scheduled for Sept. 11 at 1:30 p.m.
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