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Criminal Appeals

There’s a lot of misunderstanding about what an appeal actually is and when you’re allowed to do it. I have often had potential clients, or their family members, call me after someone has pled guilty to an offense. Their questions often revolve around the possibility of an appeal. Unless there has been some kind of sentencing error, appeals are simply not available to these folks. That doesn’t mean they can’t be helped in some other way, but an appeal is not the avenue. Hopefully, this article will clarify a few things.

First, you primarily appeal decisions made by the judge. These decisions are usually evidentiary in nature. For example, if the judge refuses to grant your motion to suppress evidence obtained in violation of your constitutional rights—that is a decision you may appeal. Or, the judge allows the jury to hear evidence in violation of the rules of evidence—that is a decision you may appeal. Or, the judge does not permit your attorney to strike a juror for cause who has expressed clear bias against you, your case, or the law—that is a decision you may appeal. Or, the judge does not allow your lawyer to present evidence in your favor, in violation of the rules of evidence—that is a decision you may appeal. This list is certainly not exhaustive.

Secondly, you must actually LOSE at trial. The only exception to this rule is for pre-trail motions. Sometimes, the trial judge will grant you a Certificate of Immediate Review following an adverse decision on a pre-trial motion. Then, you may appeal that pre-trial decision BEFORE trial. Otherwise, you must first lose your case at trial. A plea agreement does not count! A non-negotiated plea does not count! You must have a trial, put on evidence and have either the judge (in a bench trial), or the jury, find you guilty of some crime. If you have not been convicted, you generally cannot appeal.

Third, following your conviction, you must first file a Motion for New Trial within 30 days. This is usually done, as a matter of course, by your trial attorney. However, it is important that you make sure your attorney does this. If he/she fails to file the Motion for New Trial, within that time frame, you lose the right to a new trial hearing and you cannot appeal.

The purpose of the Motion for New Trial is to give the original judge, the Trial Judge, a “first crack” at the issues. Objections may have been made at trial, but often these are unresearched and “on the fly”. The argument may be incomplete and, therefore, the Trial Judge may have made an uninformed ruling. If so, he/she must have the opportunity to remedy the situation by hearing the appropriate argument and, possibly, granting a new trial. Prior to any hearing on the Motion for New Trial, you have an opportunity to research the issues and to dig up case law in favor of your argument at this hearing.

Also, you should have a new attorney for the purposes of your Motion for New Trial. Why? Because one of your arguments should be that you received “Ineffective Assistance of Counsel”. Your new attorney should look at all the evidence and talk to all the witnesses again to see if there's something your original attorney overlooked or should have done. The purpose of this is to show that, “Had my old attorney done X, I would have won at trial.” Your original attorney cannot argue that they, themselves, were ineffective. However, they may be called as a witness at the hearing on the Motion for New Trial.

Next, you present evidence and argument at your Motion for New Trial. Your new attorney may even author a Brief in Support Of the motion, citing to the evidence which was presented during the hearing. Should the trial judge deny your motion, THEN you have a right to an appeal on all issues raised before the Trial Judge. You must then timely file your Notice of Appeal with the trial court.

THEN you may appeal the Trial Court's decision(s) to the Georgia Court of Appeals.  

If you or someone you know has been convicted of a crime and wishes to have a new trial hearing or to appeal, please call me at 770-729-4809 or email me at [email protected]

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