Post Conviction Appeals
Motion for New Trial
This is often the first stage in the appellate process. The Motion for New Trial is filed in the trial court and must be filed within 30 days following conviction. A defendant is not required to file a motion for new trial in order to appeal his or her conviction to the Court of Appeals or the Georgia Supreme Court. This procedure can have advantages in some instances. Filing a motion in the trial court, may provide the opportunity to convince the trial judge that a new trial is warranted. This means that there is an additional person considering the case in the review process and a favorable ruling here eliminates the need to appeal to a higher court. Second, the motion allows the Defendant to request an evidentiary hearing. In the event that new or additional evidence needs to be presented in order to support an issue on appeal, this is the only opportunity to produce such evidence (as evidence may not be presented in the higher courts). If there are issues concerning the ineffective assistance of trial counsel, newly discovered evidence, juror misconduct, or any other issue that requires presentation of evidence, a motion for new trial must be filed.
If the motion for new trial is denied, a notice of appeal must be filed within thirty days after the denial of the motion. Murder cases are reviewed only by the Georgia Supreme Court, while all other criminal cases are reviewed first by the Georgia Court of Appeals. After the notice of appeal is filed and the case is docketed to the appellate court, a brief is filed outlining the issues for appeal. The case cannot be transferred to the Appellate courts until all of the case- file materials and transcripts are filed with the clerk of court. If an appeal is denied by the Georgia Court of Appeals, the defendant has the opportunity to petition the Georgia Supreme Court for review. Following the Supreme Court review, we are entitled to file a habeas corpus petition in both state and federal court. If either appellate court reverses the conviction, the case will generally be sent back to the trial court for a new trial.
Habeas Corpus Petitions. In addition to the right to an appeal, any person who is convicted of a crime, whether by a plea of guilty or after a trial, has the right to challenge that conviction by petitioning for a “Writ of Habeas Corpus.” This procedure is generally designed to address any issues that were not raised in the person’s appeal. This procedure is also the only appeal method by which a conviction arising from a guilty plea may be challenged. Generally, a person must file the petition for a writ of habeas corpus within one year in the case of a misdemeanor, and within four years in the case of a felony, from the date that the conviction became final by the conclusion of direct appeal or the expiration of time for seeking such an appeal. The petition must be filed in the county in which the person is detained. A habeas corpus proceeding is not regarded as a criminal action. It is a civil action in which the person detained is the plaintiff. The burden of proof is therefore on the defendant to establish a claim by a preponderance of the evidence