Appellate Advocacy

A skilled appellate attorney can help you seek relief after conviction through various legal mechanisms, including claims of ineffective assistance of counsel and constitutional violations. The appeals process in Georgia is governed by statutory provisions and case law outlining procedures and jurisdictional requirements for appealing decisions from lower courts to appellate courts. Under Georgia law, the right to appeal is statutory rather than constitutional, with appeals permitted from final judgments or specific interlocutory orders under O.C.G.A. § 5-6-34. Final judgments conclude lower court proceedings, while interlocutory appeals require strict procedural compliance including trial court certification. Appellate jurisdiction is constitutionally and statutorily defined, with the Court of Appeals serving as the primary review court for most criminal and civil matters.

The Georgia Supreme Court holds exclusive jurisdiction over constitutional challenges, murder cases, and habeas corpus matters, while O.C.G.A. § 15-3-3.1 clarifies jurisdictional boundaries between appellate courts. Procedural compliance is mandatory, as failures may result in dismissal. In Duke v. State, 306 Ga. 171 (2019), the Supreme Court emphasized strict adherence to appellate rules. For criminal defendants, appeals may proceed through direct challenges of final judgments or interlocutory routes when procedural requirements are met, with counsel's failure to inform a defendant of appeal rights constituting ineffective assistance. State v. Scott, 370 Ga. App. 40 (2023). The State's appeal rights remain limited to specific circumstances under O.C.G.A. § 5-7-1, such as evidence suppression orders.

This structured process balances procedural rigor with substantive review, ensuring Georgia's appellate system operates within statutory and constitutional boundaries while providing meaningful redress for lower court decisions.

Discretionary appeals in Georgia criminal law are governed by specific statutory provisions and case law that outline the procedures, requirements, and jurisdictional considerations. The process is primarily regulated by O.C.G.A. § 5-6-35, which mandates that certain appeals must be filed as discretionary applications, and related statutes and rules provide further guidance on filing deadlines, required documentation, and the burden of proof. Case law further clarifies the application of these statutes, particularly in the context of criminal and quasi-criminal proceedings.

Discretionary appeals often require careful adherence to procedural rules, including the necessity of filing an application within specific timeframes. For instance, an application for discretionary appeal must be submitted to the appellate court within 30 days of the trial court's order, and the appellate court typically issues a decision on the application within another 30 days. It is crucial to ensure that the appeal is not meritless, as the appellate court may impose fines or penalties for frivolous appeals.

Interlocutory appeals, a subset of discretionary appeals, allow parties to seek relief from interim orders during ongoing cases. These appeals often require a certificate of immediate review from the trial court, which must be requested and issued within 10 days of the order in question. This process underscores the importance of timely action and adherence to procedural requirements when seeking relief from interim decisions.

• In Howard v. State, 319 Ga. 114 (2024), the Georgia Supreme Court held that the entry of an adjudication of guilt and resentencing upon revocation of first-offender status constituted a final judgment directly appealable under O.C.G.A. § 5-6-34. The Court distinguished between direct appeals and discretionary appeals, emphasizing that discretionary applications are required only for specific categories of cases listed in O.C.G.A. § 5-6-35.
• In Gable v. State, 290 Ga. 81 (2011), the Georgia Supreme Court determined that extensions of time could be granted for applications for discretionary appeal under O.C.G.A. § 5-6-39. However, the Court clarified that such extensions must comply with statutory deadlines, and trial courts lack authority to grant extensions outside the prescribed time limits. The case also highlighted that there is no constitutional right to counsel in filing discretionary applications.
• In In the Interest of B.R.F., 299 Ga. 294 (2016), the Georgia Supreme Court ruled that the appellate court erred in granting an out-of-time discretionary appeal in a termination of parental rights case. The Court emphasized that untimely applications for discretionary review are jurisdictionally defective, and any constitutional claims related to ineffective assistance of counsel must first be addressed by the trial court.
• In Hair Restoration Specialists v. State, 360 Ga. App. 901 (2021), the Georgia Court of Appeals dismissed an appeal for lack of jurisdiction because the appellant failed to file a discretionary application as required under O.C.G.A. § 5-6-35. The Court reiterated that compliance with discretionary appeal procedures is jurisdictional and cannot be bypassed.
• In Hendrix v. State, 351 Ga. App. 584 (2019), the Georgia Court of Appeals held that appeals from orders revoking probation are subject to discretionary appeal procedures under O.C.G.A. § 5-6-35(a)(5). However, the Court clarified that orders revoking suspended sentences are directly appealable, distinguishing them from probation revocations.
• In Collins v. State, 338 Ga. App. 886 (2016), the Georgia Court of Appeals found that the trial court's 1998 order denying exoneration and discharge under the First Offender Act was void because the State never filed a motion for revocation. The Court held that orders on motions to correct void sentences are directly appealable, and Collins' appeal was timely filed.
• Ga. Sup. Ct. 33 outlines the procedural requirements for discretionary appeals, including the need for a concise jurisdictional statement, an enumeration of errors, and relevant supporting documents. The rule specifies that applications will be considered without oral argument.
• Ga. Ct. App. Rule 31 provides detailed guidance on filing discretionary appeals, including a 30-day deadline for most cases, the burden of proof on the applicant, and the required inclusion of a stamped copy of the trial court's order. The rule also outlines the criteria for granting applications, such as the existence of reversible error or the desirability of establishing precedent.
• Ga. Ct. App. Rule 40 states that the filing of a discretionary appeal acts as a supersedeas to the same extent as a notice of appeal. It also provides for the issuance of mandamus orders in limited circumstances to aid the Court's jurisdiction or effectuate its judgments.

Motions for new trial in Georgia criminal law are governed by a combination of statutory provisions and case law. These laws outline the procedures, timelines, and substantive standards for filing, amending, and adjudicating motions for new trial, including both ordinary and extraordinary motions. They also address the discretion of trial courts to act as the "thirteenth juror" in evaluating the evidence and the circumstances under which new trials may be granted.

• In Jones v. State, 321 Ga. 398, the Georgia Supreme Court held that trial counsel's failure to request a hearing on a motion for new trial did not constitute ineffective assistance of counsel under the Strickland v. Washington standard. The court emphasized that Georgia statutory law, specifically O.C.G.A. § 5-5-20 and O.C.G.A. § 5-5-21, grants trial courts broad discretion to grant new trials on general grounds, and O.C.G.A. § 5-5-43 allows a successor judge to rule on such motions. The court found no legal basis for the claim that a defendant has a "right" to have the same judge who presided over the trial consider the motion for new trial.
• In Smith v. State, 315 Ga. 287 (2022), the Georgia Supreme Court ruled that the trial court erred in denying an extraordinary motion for new trial without holding an evidentiary hearing. The court applied the six-factor test from Timberlake v. State, 246 Ga. 488 (1980), which governs motions for new trial based on newly discovered evidence. The court emphasized that extraordinary motions for new trial are not favored and are subject to stricter scrutiny than ordinary motions. However, when a defendant pleads sufficient facts and submits supporting affidavits, the trial court must hold an evidentiary hearing before ruling on the motion.
• In Moten v. State, 315 Ga. 31 (2022), the Georgia Supreme Court held that a trial court erred in refusing to allow a defendant to amend a timely filed motion for new trial to add a claim of ineffective assistance of counsel. The court cited O.C.G.A. § 5-5-40, which permits amendments to a motion for new trial at any time before the trial court's final ruling. The court vacated the trial court's order and remanded the case to allow the defendant to amend the motion.
• In Stinchcomb v. State, 308 Ga. 870 (2020), the Georgia Supreme Court found that the trial court erred in denying an extraordinary motion for new trial without holding an evidentiary hearing. The court reiterated the distinction between ordinary and extraordinary motions for new trial under Georgia law and applied the six-factor test from Timberlake v. State, 246 Ga. 488 (1980). The court emphasized that extraordinary motions for new trial are disfavored but must be considered when supported by sufficient evidence and affidavits.
• In State v. Hamilton, 306 Ga. 678 (2019), the Georgia Supreme Court upheld a trial court's decision to grant a new trial on general grounds under O.C.G.A. §§ 5-5-20 and 5-5-21. The court rejected procedural challenges to the trial court's decision, including claims that the court acted improperly by granting the motion on its own within 30 days of judgment, as authorized by O.C.G.A. § 5-5-40(h). The court also noted that trial courts are not required to wait for a transcript before exercising their discretion as the "thirteenth juror".
• In Holmes v. State, 306 Ga. 524 (2019), the Georgia Supreme Court vacated a trial court's denial of a motion for new trial because the trial court failed to exercise its discretion as the "thirteenth juror" under O.C.G.A. §§ 5-5-20 and 5-5-21. Instead of reweighing the evidence, the trial court applied a sufficiency-of-evidence standard. The case was remanded for the trial court to properly consider the motion under the correct legal standard.
• O.C.G.A. § 5-5-40 governs the filing and amendment of motions for new trial. It allows motions to be filed within 30 days of judgment and permits amendments at any time before the court's ruling. The statute also authorizes trial courts to grant new trials on their own motion within 30 days of judgment, except in cases of acquittal.
• O.C.G.A. § 5-5-41 addresses extraordinary motions for new trial, which may be filed after the 30-day period if "good reason" is shown. The statute limits such motions to one per case and requires the court to provide written rationale for its decision. Extraordinary motions are subject to stricter scrutiny than ordinary motions.
• The Georgia Uniform Superior Court Rule IV outlines procedural requirements for motions for new trial, including the right to counsel, the ability to present additional evidence, and the requirement for a complete transcript of the proceedings. The rule emphasizes that motions for new trial are not a procedural prerequisite for appellate review.
• The Georgia Uniform Superior Court Rule 41.1 requires motions for new trial to be heard and decided promptly. It also mandates the defendant's presence at the hearing unless waived and specifies that rulings must be rendered within the time required by law.
• O.C.G.A. § 5-6-39.1 provides a mechanism for defendants to seek leave to file out-of-time motions for new trial or notices of appeal under certain circumstances, such as excusable neglect or deficient performance of counsel. The statute allows such motions to be filed until June 30, 2026, for cases affected by the Supreme Court's decision in Cook v. State.
• O.C.G.A. § 5-5-47 grants defendants the right to post a supersedeas bond immediately upon filing a motion for new trial in bailable cases. The statute requires the trial court to assess the bond amount and applies the same rules as those governing supersedeas bonds in appeals.

Georgia courts are generally required to hold a hearing before ruling on a motion for a new trial, as this is consistent with statutory and constitutional due process requirements. Specifically, Georgia law provides that a movant for a new trial is entitled to be heard on their motion in the trial court before a ruling is made. This principle is supported by statutory language such as "hear and determine all motions for new trial" (O.C.G.A. § 24-2618) and "until the motion for a new trial is heard and decided" (O.C.G.A. § 70-308), as well as case law affirming this right, Foster v. State, 230 Ga. 870 (1973); Shockley v. State, 230 Ga. 869 (1973).

However, there are exceptions to this requirement. For example, extraordinary motions for a new trial, which are disfavored and subject to stricter scrutiny, may be denied without a hearing if the motion fails to show any merit or does not include sufficient factual support to warrant relief. In such cases, the trial court is not obligated to hold a hearing unless the movant provides affidavits or other evidence demonstrating the necessity of a hearing, Dick v. State, 248 Ga. 898 (1982); Stinchcomb v. State, 308 Ga. 870 (2020); Smith v. State, 315 Ga. 287 (2022).

Additionally, the right to a hearing can be waived if the movant does not request one or fails to appear at a scheduled hearing. In such instances, the trial court may decide the motion based on the existing record without conducting a hearing, Murray v. State, 312 Ga. 863 (2021); Bundel v. State, 308 Ga. 317 (2020).

Under Georgia law, the right to a new trial based on newly discovered evidence is governed by statutory provisions and case law that establish specific criteria for granting such motions. The key statutory provisions include O.C.G.A. § 5-5-23, which outlines the general requirements for granting a new trial based on newly discovered evidence, and O.C.G.A. § 5-5-41, which provides additional procedural requirements for extraordinary motions for new trials. Leading cases, such as Timberlake v. State, 246 Ga. 488 (1980), have established a six-factor test that courts use to evaluate whether newly discovered evidence warrants a new trial. These factors include the materiality of the evidence, its non-cumulative nature, and whether it could have been discovered with due diligence before trial.

• O.C.G.A. § 5-5-23 provides that a new trial may be granted in any case where material evidence, not merely cumulative or impeaching in character, is discovered after the verdict and brought to the court's attention within the time allowed by law for filing a motion for a new trial.
• O.C.G.A. § 5-5-41 governs extraordinary motions for new trials, specifying procedural requirements such as the preservation of evidence containing biological material, the method of testing, and the responsibilities for payment. It also allows for appeals of decisions related to such motions.
• O.C.G.A. § 5-5-40 establishes the general timeline for filing motions for new trials, requiring them to be made within 30 days of the judgment, except in extraordinary cases. It also provides for amendments to motions, extensions for filing transcripts, and the court's discretion to grant a new trial on its own motion within 30 days.
• In Patterson v. State, 314 Ga. 167 (2022), the Georgia Supreme Court upheld the denial of a motion for a new trial based on newly discovered evidence, applying the six-factor Timberlake test. The court found that the evidence, a photograph, did not meet the criteria for materiality and due diligence, as it was not likely to produce a different verdict and was cumulative.
• In State v. Simmons, 321 Ga. App. 688 (2013), the Georgia Court of Appeals affirmed the trial court's grant of a new trial based on newly discovered mobile-phone records. The court found that the evidence was material, corroborated the defendant's alibi, and was not merely cumulative, satisfying the Timberlake factors.
• In Stinchcomb v. State, 308 Ga. 870 (2020), the Georgia Supreme Court reversed the denial of an extraordinary motion for a new trial, holding that the trial court erred by not holding an evidentiary hearing. The court emphasized the importance of the Timberlake factors and found that the newly discovered witness testimony strongly supported the defendant's justification defense.
• In State v. Gates, 308 Ga. 238 (2020), the Georgia Supreme Court upheld the grant of an extraordinary motion for a new trial based on DNA evidence. The court found that the defendant satisfied the Timberlake diligence requirement and that the new evidence was so material it would probably produce a different verdict.
• In Smith v. State, 168 Ga. 611 (1929), the Georgia Supreme Court affirmed the denial of a motion for a new trial based on newly discovered evidence. The court emphasized that such motions are not favored and found that the evidence was cumulative and could have been discovered with due diligence.
• In Gittens v. State, 307 Ga. 841 (2020), the Georgia Supreme Court upheld the denial of a motion for a new trial, finding that the defendant failed to satisfy the first and second Timberlake factors. The court noted that the defendant was aware of the witnesses before trial and could have secured their testimony with due diligence.

The six-factor test is a conjunctive standard, meaning all six requirements must be satisfied for a new trial to be granted. These include the discovery of evidence post-trial, the exercise of due diligence in attempting to uncover the evidence earlier, the materiality of the evidence in potentially altering the verdict, its non-cumulative nature, the necessity of securing an affidavit from the witness or explaining its absence, and the limitation that the evidence cannot solely serve to impeach a witness's credibility. Courts have emphasized that failure to meet even one of these criteria authorizes the denial of the motion for a new trial.

Additionally, judicial discretion plays a significant role in these motions. A trial court's decision to grant or deny a motion for a new trial based on newly discovered evidence is subject to appellate review only for abuse of discretion. This underscores the importance of presenting a compelling case that satisfies all six factors to ensure the motion's success.

Habeas corpus under Georgia law serves as a legal mechanism to address the unlawful restraint of an individual's liberty, ensuring that constitutional rights are upheld. The process is governed by statutory provisions and case law, which outline the procedures, jurisdiction, and limitations of habeas corpus petitions. The Georgia General Assembly has emphasized the importance of habeas corpus as the exclusive remedy for addressing constitutional violations in criminal cases, particularly post-conviction.

In Cook v. State, 313 Ga. 471 (2022), the Georgia Supreme Court held that motions for out-of-time appeals in trial courts are not legally authorized, and habeas corpus is the exclusive post-appeal procedure for addressing constitutional violations including the deprivation of the right to appeal. The court emphasized that the Habeas Corpus Act provides a structured process for such claims, granting superior courts exclusive jurisdiction over habeas petitions and detailing procedural requirements. In Schoicket v. State, 312 Ga. 825 (2021), the Georgia Supreme Court reiterated that habeas corpus is the appropriate remedy for addressing constitutional violations such as the voluntariness of a guilty plea, highlighting the balance between addressing constitutional rights and ensuring finality in post-conviction relief as established by the General Assembly.

In Weaver v. State, 359 Ga. App. 784 (2021), the Georgia Court of Appeals affirmed that extraordinary motions for new trials are improper for raising constitutional claims cognizable in habeas proceedings, relying on Mitchum v. State precedent limiting such motions to claims not addressable through habeas corpus. In Davis v. State, 353 Ga. App. 896 (2020), the Court of Appeals vacated a trial court's denial of an extraordinary motion for a new trial, holding that habeas corpus provides an adequate remedy for constitutional claims. Separately, in Davis v. State, 347 Ga. App. 757 (2018), the Court of Appeals clarified that habeas corpus is the appropriate remedy for challenging unlawful detention before indictment, ensuring detention lawfulness without determining guilt.

Statutory provisions further define the framework: O.C.G.A. § 9-14-3 outlines petition requirements including stating the restrained person's name and cause of restraint; O.C.G.A. § 9-14-4 specifies verification by oath and proper court presentation; O.C.G.A. § 9-14-16 lists circumstances precluding discharge such as lawful imprisonment; O.C.G.A. § 9-14-2 addresses custody determinations for spouses or children; O.C.G.A. § 9-14-8 provides service guidelines; and O.C.G.A. § 9-14-40 establishes superior courts' exclusive jurisdiction while reflecting the General Assembly's intent to expand state habeas corpus scope to address constitutional issues and reduce federal court reliance.

Georgia law provides a comprehensive statutory framework for individuals who have been wrongfully convicted and imprisoned. This framework addresses compensation for wrongful incarceration and establishes procedures for seeking redress and restoration following exoneration.

Eligibility for these awards requires claimants to overcome significant legal hurdles under O.C.G.A. §§ 17-22-1 to -12. Crucially, the claimant bears the burden of proving by a preponderance of the evidence—using Georgia's formal rules of evidence (O.C.G.A. § 50-13-15)—that they did not commit the crime for which they were convicted, as explicitly required by O.C.G.A. § 17-22-5(a)(2). Statutory bars to compensation also apply if the claimant was an accomplice to the crime or intentionally caused their own conviction through perjury, fabricated evidence, or a protective guilty plea, determinations likewise made by preponderance of the evidence under O.C.G.A. § 17-22-5(c). Failure to meet these evidentiary standards or comply with procedural requirements, such as timely witness and exhibit disclosures, risks dismissal of the claim.

Skilled legal representation ensures meticulous preparation of testimony and documentation, strategic navigation of Georgia's administrative hearing procedures under the Administrative Procedure Act, and effective rebuttal of statutory exclusions. An experienced attorney specializing in wrongful conviction claims is essential to maximize recovery and navigate the complex procedural landscape—including the affirmative burden to prove innocence, strict evidentiary standards, and risk of dismissal for technical errors.

Georgia law provides a framework for determining eligibility for parole, outlining specific criteria and procedures for parole consideration. These statutes address factors such as the time served, the nature of the offense, and the discretion of the State Board of Pardons and Paroles in granting parole.

O.C.G.A. § 42-9-45 establishes that the State Board of Pardons and Paroles may adopt rules and regulations regarding parole eligibility. It specifies that inmates serving misdemeanor sentences are eligible for parole consideration after six months or one-third of their sentence, whichever is greater. For felony sentences, eligibility arises after nine months or one-third of the sentence, with additional provisions for sentences aggregating 21 years or more, which require seven years of service before eligibility.

O.C.G.A. § 42-9-40 mandates the adoption of a parole guidelines system by the State Board of Pardons and Paroles. This system applies to all inmates, except those serving life sentences, and considers factors such as the severity of the offense, prior criminal history, conduct, and social factors to determine parole actions.

O.C.G.A. § 42-9-42 outlines additional considerations for parole, including good conduct, educational achievement, and efficient performance of duties by inmates. It also requires the board to ensure that parolees are suitably employed or not at risk of becoming a public charge. The statute allows the board to impose conditions on parole, including the payment of a supervision fee.

Ga. Const. Art. IV, § II, Para. II grants the State Board of Pardons and Paroles the power of executive clemency, including granting paroles. It specifies that individuals whose death sentences are commuted to life imprisonment must serve at least 25 years before becoming eligible for parole. It also allows the General Assembly to establish mandatory minimum sentences for certain offenses, during which parole consideration is prohibited.

O.C.G.A. § 17-10-11 requires that credit for time served in confinement be applied toward a convicted person's sentence and considered by the State Board of Pardons and Paroles in determining parole eligibility. This provision applies to all crimes and courts within Georgia.

O.C.G.A. § 17-10-1 permits judges to determine whether a first offender may be considered for parole before completing the minimum time required by law. It also specifies that probation following imprisonment begins only after the confinement portion of the sentence is completed.