GEORGIA CRIMINAL APPEALS

I’ve been representing people in serious criminal cases in Georgia for well over 20 years now, and almost every day, I will get a phone call from someone who has had a friend or a family member convicted at trial and they want to talk about an appeal. Now, it may be that the trial lawyer did a poor job in representing the person in the case, or maybe the trial judge made some errors in ruling on evidence, keeping evidence out, not letting certain other evidence in. Whatever the reason, most people want to understand how the process works, what happens after someone’s convicted and sentenced. How do I get the case back in court? How do I appeal it?

So I thought it might be helpful to walk through the basic steps of how to appeal a criminal conviction in Georgia. Now, the facts of the case may be different, but in general terms, the process is more or less the same regardless of the type of crime and regardless of what county the person was convicted in.

Now, the first question we usually get is, “Can he stay out pending the appeal? Does he have to go to jail or to prison right now just because he’s been convicted?” Well, a trial judge has the ability to allow the person to remain out on bond pending an appeal, for most cases. Now, there are some very serious offenses: murder, aggravated sodomy, aggravated child molestation, kidnapping. Those types of offenses are treated a little bit differently under the law, and the judge does not have the discretion to allow the person to remain out on bond while the appeal is pending. But for other felony cases, the judge does have the ability to do that. The judge has to hold a hearing and to weigh certain factors. Is this person a substantial risk of running away? Committing additional felony offenses? Or is the appeal just frivolous? Is it a waste of time?

But it’s usually a good idea to at least let the judge consider those factors, because we’ve had several situations where the judge realized there was a legitimate issue that we need to take up on appeal and he’s allowed the client to remain out on bond while that appeal is pending.

But the first step in actually appealing the case is to file a motion for new trial, and that’s due within 30 days after the person has been convicted. Now, some people or some lawyers will even argue that, “Well, why don’t you just go ahead and file a notice of appeal? Go ahead and take it up to the Georgia Court of Appeals or Georgia Supreme Court.” Well, in our experience, you almost always wanna start with a motion for a new trial. It gives the trial judge an opportunity to review the case a second time. And while most people think, “Well, this judge, you know, he said in the first trial he’s not gonna give us another shot,” that’s not always true. I have personally won motions for a new trial in very serious criminal cases where the trial judge took another look at the case, found in a couple of situations that the trial lawyer, not us, but the lawyer who had it before, had done something wrong, was not constitutionally effective. And so, the trial judge gave us another trial. That same trial judge reviewed the case again and gave us another opportunity.

And even if you’re not successful in the motion for new trial, it is a great opportunity to get evidence back into the record that you may need for purposes of the appeal. We’ve had several cases where we’ve taken over the case after a conviction, after another lawyer lost it, and we’ve gone to a motion for new trial. We’ve had a hearing in front of the trial judge, and we’ve brought in new evidence, new witnesses, new experts who we thought should have been brought in at the trial but were not. If we don’t bring them in during the motion for a new trial process, the Court of Appeals never has the ability to consider it, whether that evidence would have been helpful or not. So it’s almost always effective, more effective, to start out by filing a motion for a new trial before you go with the direct appeal.

But that would be the next step, filing a direct appeal. If you go through the motion for a new trial process, the trial judge says, “No, there’s not enough here to give you a new trial. I’m gonna deny your motion,” then you’ve got 30 days to take it up to the next highest court, and in Georgia, that’s usually gonna be the Georgia Court of Appeals, unless it’s a murder case and then it’s gonna go directly to the Georgia Supreme Court. Now, a direct appeal notice has to be filed within 30 days after the motion for a new trial has been denied. But understand that the notice is what has to be filed in 30 days, not the actual appeal. There’s a lot that has to happen between what happened in the trial court and what the record looks like, what the case looks like when it gets to the higher court. Trial transcripts have to be prepared, the record itself has to be prepared, the court will usually set a briefing schedule. So while you may file that direct appeal notice very soon after a conviction, the appeal itself is probably not gonna be heard for several months.

Now let’s say you’ve gone through the direct appeal process. Let’s say you’ve gone through the Court of Appeals because it’s a felony case but not a murder case, and you’ve been unsuccessful in the Court of Appeals. You’ve lost the appeal there. You still have an opportunity to have a court review the case. You can request what’s called a petition where you can file a petition requesting a writ of certiorari. And we call it “cert” for short. And where that petition goes is to the Georgia Supreme Court, our state supreme court here in Georgia. And it gives them the opportunity to look at the case, look at the decision that the Court of Appeals made, and decide if they wanna take the case or not. They do not have to take the case. This is discretionary.

The Georgia Supreme Court gets to pick and choose, for the most part, which cases they wanna take. They usually are interested in taking cases where the issue is an important issue, a clear legal error was made by the trial judge, and there’s not enough evidence in the law to say that this is the clear rule that should be applied. Those are cases that the Georgia Supreme Court will often look at and they’ll accept the case, they’ll grant that writ of cert, and they’ll allow you to appeal it to the state supreme court.

And even after that process, you still have the opportunity to file another petition for a cert to the United States Supreme Court. Now, it’s, you know, very rare to get a case in the United States Supreme Court. They are incredibly selective about the cases that they take, but I have had a case where the United States Supreme Court granted our petition for cert, they reversed the conviction, and we were successful. But just understand that that’s a rare situation. The United States Supreme Court really limits the cases they take to specific issues where there’s a disagreement among other state supreme courts or federal courts of appeal. So, you know, thinking you’re gonna take the case all the way to the United States Supreme Court usually is not something that’s going to happen. And of course, the United States Supreme Court doesn’t have to take the appeal at all. They can review the petition and deny it right there without ever hearing the arguments.

But there’s another way to appeal a criminal conviction, to challenge a criminal case after the conviction and after all the direct appeals have been filed and decided. And that’s a state habeas petition, and it works a little bit differently. First of all, it’s not a criminal case. It’s technically a civil proceeding. Let’s say the person is in prison in a county in South Georgia, let’s say Telfair County. What that person has to do is file a petition in Telfair County, let’s say…even if they were convicted back in Cobb County, they have to file the petition where they are now. Whatever prison they’re located in, they’re being held in, that county is the county you have to file that state habeas petition in. And a state habeas petition is only meant to address constitutional problems with the conviction, and that’s usually limited to effectiveness of the trial lawyer. Did they have ineffective legal representation during the trial? Many times, you will have already tried to challenge that in the motion for a new trial, but if this is the first time you get a different lawyer to look at the case, say the same lawyer represented you at trial and on appeal, then the state habeas petition is gonna be the first opportunity to challenge the effectiveness of your trial lawyer.

So you file the petition there in the county where the person’s being held. There’ll be a hearing. You can call witnesses and you would usually call the trial lawyer if you’re challenging that person’s effectiveness, question them about things they didn’t do but should have done, or things they did but shouldn’t have done, and then try to get that judge in that different county, wherever the prison is, to say that, “Yes, we think that conviction was wrongful. We’re gonna set it aside and send it back up to whatever county…wherever it started.” So, state habeas petition is certainly something that you would want to consider after all the direct appeals have been finished. And there’s a four-year limitation period in Georgia, so you can wait a considerable amount of time before filing that state habeas petition if you’ve been convicted at trial.

And the good thing about a state habeas is it’s also a way to challenge a sentence even if you pled guilty. I mean, most of the direct appeals are gonna be limited to challenging what happened during a trial. I mean, if you plead guilty, you’re waving a lot of rights to an appeal. But a state habeas allows you to still challenge what happened even if you pled guilty. Let’s say you feel that your lawyer misled you about the case and you pled guilty without really knowing what the consequences were going to be. You can use a state habeas petition to challenge that conviction, convince a judge to set it aside, you start all over again.

Now, there’s also the possibility of pursuing a federal habeas petition after you’ve done everything you possibly can do on the state system, and that is one requirement of a federal habeas. You have to exhaust all your state remedies. Anything that you could file in state court, you have to file it. And federal appeals, in this particular situation, are gonna be limited to violations of federal constitutional law. So it better be a good issue and it better be one that has not been specifically addressed by the state court. You can’t, you know, re-litigate issues that the state has already decided on the same basis and you can’t present brand new issues on a federal habeas either.

So it’s the kind of petition that is rarely successful because if you have a good issue, hopefully you’ll have won before you get to the federal habeas. Now, an interesting thing about the federal petition, it’s due within one year after the conviction becomes final. So after you finish all your direct appeals, you’ve got to file it within a year. So if you think you may wanna file a federal habeas, you better file that state habeas within one year so that you still have the amount of time you need to get back into federal court.

Now, finally, there’s the possibility of an extraordinary motion. Let’s say it’s been years since the case was tried in court. You’ve exhausted all your direct appeals. You’ve gone through the habeas process, but something’s happened. You’ve become aware of new evidence. There’s something that went on at the trial that you now realize was incorrect because some witness has come forward and said, “You know, I wasn’t telling the truth” or you find a witness that you didn’t think was available during the trial. You can file a motion, an extraordinary motion for a new trial to try to convince the judge to throw out the conviction and grant a new trial.

Now, we see this most in the area of DNA cases, and I’m one of the founding members of the Georgia Innocence Project. And when we have a wrongful conviction where we now have DNA evidence that will help that person get out of jail, this is how we get it into court. We file an extraordinary motion for a new trial. Because, remember, these convictions are 10, 20, even 30 years old, so you can’t go through the appeals process. The time for that is already expired. So you get back into court by an extraordinary motion for a new trial. But just remember, it has to be extraordinary. You can’t just say, “Well, you know, this witness was available but I didn’t really call the person. The lawyer should have called this witness. Now I want a new trial.” That’s usually not gonna be enough. The new evidence truly has to be exceptional, extraordinary, to convince the judge to give the person a new trial.

So this is basically how you would appeal a criminal conviction in Georgia. It can be a long process. It can be a frustrating process. But it can work. We have won successful appeals in every single one of these stages. So if you have a question about this, if you know someone who’s just been convicted at trial and you’re really concerned that whatever happened at trial was not right – they didn’t get a fair trial, their lawyer was ineffective. You probably have questions about the appeals process. If you do, feel free to give us a call because we’ll do everything that we can to help. It’s a complicated procedure, but we’ve been through it many times and we can help guide you through the process.