Our firm has extensive experience in representing individuals challenging their convictions in the Georgia Court of Appeals and Supreme Court of Georgia. He also help incarcerated clients file habeas petitions if they have been unsuccessful in their direct appeal.
If you have questions about how to appeal a criminal case in Georgia, contact our criminal appeal lawyers to discuss your case and we will let you know if we can help.
There are two ways you can appeal to have your conviction overturned. You can file what’s called a “direct appeal” right after your conviction by filing a notice of appeal, a simple document that informs the judge and the clerk that you’re going to appeal the case to a higher court.
The other option is to file a motion for new trial, which will let you have a hearing where you can argue that your trial had significant errors or you can present additional evidence that wasn’t considered before. This is the best option if you think your first lawyer may have been ineffective, as you have a constitutional right to a lawyer who makes the right objections and raises the proper defenses. The only way to raise “ineffective assistance of counsel” claims in an appeal is to first file a motion for new trial. If that’s denied, you can appeal.
Whichever option you choose, a notice of appeal or a motion for new trial, you can also request an appeal bond that allows you to stay out of jail or prison while your case is on appeal. These are rarely granted, so you need an experienced lawyer to make the right arguments. There are some serious crimes in Georgia where the judge cannot grant an appeal bond, things like murder, kidnapping, rape. But for most other crimes, especially if the person was out of jail while the case was pending, they can stay out of jail while the appeal is pending, but only if the lawyer files that request for an appeal bond.
In most criminal appeals in Georgia, the case goes from the County Superior Court to the Georgia Court of Appeals. And that process can take a while. It can take many months, because what has to happen before the Court of Appeals considers the case, is the court reporter who handled the case in the trial court has to prepare the transcript, a written document about what everybody said during the trial or during the plea. They have to package that up with all of the other documents in the case and send it to the Court of Appeals. That’s called the record. And preparing the record can take several months in some counties. Once the record gets to the Court of Appeals, then they issue a briefing schedule. They basically tell the lawyers when it’s time to file the paperwork with the court to challenge the conviction.
In certain cases, the Court of Appeals may want to have oral argument. That’s where the lawyers show up in front of a panel of judges, usually three judges, and they argue the case. It’s not a new trial. They don’t reconsider the evidence, but it is an opportunity for the Court to hear the legal arguments about the case directly from the lawyers. If the direct appeal is not successful, you do have the option of a petition for certiorari. Now, that’s a long Latin word that basically means you ask permission from the next highest court to accept your appeal. If you’re convicted of most crimes in Georgia, and you appeal it to the Court of Appeals, you don’t necessarily have the right to then take the case to the Georgia Supreme Court, and certainly not the United States Supreme Court, unless that court gives you permission to do so. So, if you’ve lost the direct appeal, your lawyer may suggest that you file a petition for certiorari or petition for cert, as we call it, to see if that next highest court, the Georgia Supreme Court or even the United States Supreme Court may give your lawyer permission to file that appeal with them. If that process is not successful, you still have one final option. It’s called a habeas petition.
A habeas petition is a petition to have your conviction or sentence vacated so you can be released from custody. A habeas petition is filed in the county where the person is being held in custody and is another opportunity to challenge what happened at trial.
Usually, a habeas petition is focused only on serious constitutional errors, primarily ineffective assistance of counsel. The petition will be filed, the Attorney General’s Office will respond to it, and then there’s usually going to be a hearing with a different superior court judge. You can bring in the lawyer that handled the trial or handled the plea, and challenge that lawyer as to what they did that maybe they shouldn’t have done, or what they should have done that they didn’t do. If you’re successful at a habeas, the case goes back to the county it started in, and you start out with the case still pending, but with no conviction.
There’s a final thing that can happen in some very exceptional cases in Georgia, and that’s an extraordinary motion for a new trial. That’s what happens when someone discovers new evidence that may change the outcome of the case. And it has to be significant, something like DNA evidence. If you find that out, even if it’s been a year, two years, 10 years after the conviction, in some cases, your lawyer can file that extraordinary motion for new trial and get the case back in court. So, that’s generally the process of how to appeal a criminal conviction in Georgia. If you have any questions about this process, or if you need help with filing an appeal, feel free to give us a call.