How Do Criminal Appeals Work in Georgia

If you or someone close to you has received a conviction in Georgia—either through a guilty verdict in a jury trial or a guilty plea—in Georgia, you may be wondering what options are available to challenge the jury verdict or trial court’s decision. The criminal appeals process provides a crucial pathway within criminal justice in both federal and Georgia state courts to challenge legal or procedural errors that may have impacted the outcome of the trial or plea. At Garland, Samuel & Loeb, P.C., our criminal defense and appellate attorneys have decades of experience navigating the complex Georgia appellate system on behalf of our litigants.

Here is a general explanation of how criminal appeals work in Georgia state and federal courts, the types of cases that may be appealed, the steps involved in the appeals process, and what to do if you disagree with an appellate court decision.

The Court and the Parties

Whether you use the state appellate process or the federal appellate process determines where the conviction originated:

• State Courts handle cases involving state laws—things like traffic tickets, family disputes, most criminal cases, and property issues. Each state has its own court system and rules.
• Federal Courts deal with cases involving federal laws, the U.S. Constitution, disputes between states, or cases involving parties from different states (diversity jurisdiction). They also handle serious crimes that violate federal laws.

Basically, state courts are your local courts for most legal matters, while federal courts handle bigger issues involving national laws, federal land (such a parks or a VA hospital), or constitutional questions.

In an appeal, the parties are:

• Appellant: The person or party who is appealing the trial court’s decision because they believe there was an error that affected the outcome.
• Appellee (or Respondent): The person or party opposing the appeal, usually the one who won at trial, defending the trial court’s decision.

In a criminal case, depending on the type of appeal, the defendant(s) and the prosecution (be that State or the Federal Government) can be either an appellant or appellee in an appeal.

Common Grounds for Criminal Appeals

There are many reasons for appealing a conviction in a criminal case and appeals often focus on issues in criminal procedure and criminal law. A few of the most common issues include:

• Insufficient Evidence: The verdict was not supported by enough legal evidence. Example: A conviction based on speculation rather than proof beyond a reasonable doubt. (Key case: Jackson v. Virginia, 443 U.S. 307 (1979).)
• Improper Jury Instructions: The trial court gave incorrect, misleading, or incomplete instructions to the jury, affecting the verdict. O.C.G.A. § 5-5-24
• Evidentiary Errors: The court admitted or excluded evidence improperly, such as: hearsay, prejudicial evidence, illegally obtained evidence
• Ineffective Assistance of Counsel: The Defense attorney’s performance was so poor it violated the defendant’s right to a fair trial. These appeals must meet the two-prong test from Strickland v. Washington, 466 U.S. 668 (1984).
• Prosecutorial Misconduct: The Prosecutor engaged in improper conduct, such as: suppressing evidence (Brady violations), making inflammatory remarks during closing, using perjured testimony.
• Constitutional Violations: Violations of due process, right to a fair trial, right to remain silent, right to counsel, or unlawful search and seizure. Common constitutional amendments implicated: 4th (search and seizure), 5th (self-incrimination), 6th (right to counsel and confrontation), 14th (due process).
• Sentencing Errors: Errors in the calculation or application of sentencing guidelines. Unlawful enhancements or consecutive sentencing without legal basis.
• Judicial Bias or Misconduct: The judge showed favoritism, hostility, or failed to remain impartial.
• Improper Denial of Motions: The court wrongly denied motions such as: Motion to suppress evidence, motion for mistrial, motion for new trial.

What Types of Cases Can be Appealed in Georgia

Most criminal convictions in Georgia—whether misdemeanor or felony—are eligible for appeal under O.C.G.A. § 5-6-33, and § 18 U.S.C. 1291 in federal courts. Generally, defendants can appeal final decisions such as judgments, convictions, or rulings on pretrial motions.

Types of Appeals and Other Post-Conviction Relief in Georgia State Cases

• Motions for New Trial: O.C.G.A. § 5-5-40. This statute ensures that parties have a clear and structured process for seeking a new trial after a judgment has been entered, promoting both fairness and efficiency in the judicial system.
  • Deadline: Must file a Motions for New Trial within 30 days of the entry of the final judgment (usually a guilty verdict or sentencing). The deadline may be extended by the trial court an additional 100 days under certain circumstances (O.C.G.A. § 5-6-39.1).
• Direct Appeals: O.C.G.A. § 5-6-34(a)(1). These appeals are filed as a matter of right without needing permission from the court. They typically follow a trial court’s decision with a guilty verdict, challenging specific legal errors during the trial.
  • Deadline: Must file a Notice of Appeal within 30 days of the entry of the final judgment (usually a guilty verdict, sentencing or decision on a motion for new trial). The deadline may be extended by the trial court an additional 100 days under certain circumstances (O.C.G.A. § 5-6-39.1).
• Discretionary Appeals: O.C.G.A. § 5-6-35. These appeals require permission from the higher court, such as the circuit court or appeals court, and are common in cases involving guilty pleas or probation revocations.
  • Deadline: Must file an Application for Discretionary Appeal within 30 days of the judgment or order being appealed.
• Interlocutory Appeals: O.C.G.A. § 5-6-34(b). Filed before the conclusion of trial, these appeals challenge significant legal rulings and require certification from the trial court and approval from the appellate court.
  • Deadline: Must request a Certificate of Immediate Review within 10 days of the trial court’s order. If granted, you have 10 more days to file the Application for Interlocutory Appeal with the appellate court.
• Extraordinary Motions for New Trial: O.C.G.A. § 5-5-41. Filed post-conviction, these motions seek a new trial based on newly discovered evidence or unaddressed errors. Supporting the motion requires a thorough review of the transcript of the trial and other elements in the court record.
  • Deadline: Must be filed within 3 years of the judgment if based on newly discovered evidence. If based on other grounds (e.g., errors not raised earlier), it must typically be filed within 30 days of the judgment, unless extended by the court.
• Habeas Corpus Petitions: O.C.G.A. § 9-14-40 et seq. and 28 U.S.C. § 2254. These legal challenges question the lawfulness of imprisonment, often invoking issues of criminal procedure and constitutional violations after state remedies are exhausted.
  • Deadline (State-level): See “(c) Any action brought pursuant to this article shall be filed within one year in the case of a misdemeanor, except as otherwise provided in Code Section 40-13-33, or within four years in the case of a felony, other than one challenging a conviction for which a death sentence has been imposed or challenging a sentence of death, from:” O.C.G.A. § 9-14-42.
  • Deadline (Federal): Must be filed within 1 year from the date the state conviction becomes final (after direct appeal or denial of certiorari), subject to tolling during pending state post-conviction proceedings.
• Certiorari Petitions: Rule 40 of the Georgia Supreme Court Rules. A petition for certiorari asks the highest court in Georgia—the Georgia Supreme Court—to review decisions made by the Court of Appeals. The highest court exercises discretion in accepting these petitions, often focusing on significant issues of criminal law or public interest.

Deadline: Must be filed within 20 days after the Court of Appeals’ decision is issued.

Types of Appeals in Georgia Federal Cases

Federal appeals follow similar but distinct procedures, involving:

• Direct Appeals After a Federal Conviction: 28 U.S.C. § 1291. This grants jurisdiction to the U.S. Courts of Appeals to hear appeals from “final decisions” of the federal district courts. After a guilty verdict, the defendant may appeal the trial court’s decision directly to the relevant Circuit Court of Appeals, challenging legal errors.
• Interlocutory Appeals Before Trial Completion: 28 U.S.C. § 1292(b). These appeals are rare and discretionary and appeals a key issue before the entire trial finishes This allows appeals of non-final orders in civil or criminal cases if:
  • The district court certifies the issue involves a controlling question of law.
  • There is substantial ground for difference of opinion.
  • Immediate appeal may materially advance the case.
• Petitions for Rehearing and Certiorari to the U.S. Supreme Court/Petition for Rehearing / En Banc Rehearing. These are governed by the Federal Rule of Appellate Procedure 35 (en banc) or the Federal Rule of Appellate Procedure 40 (panel rehearing) and requests a panel or full appellate court to reconsider its ruling. A Petition for Writ of Certiorari, Supreme Court Rule 13, requests a review of a Court of Appeals decision by the U.S. Supreme Court, the highest court in the nation. These appeals must be filed within 90 days of the appellate decision.
• Motions to Vacate or Correct Sentence (Federal Habeas Corpus). 28 U.S.C. § 2255. This allows a federal prisoner to challenge the legality of their conviction or sentence based on:
  • Constitutional violations,
  • Lack of jurisdiction,
  • Ineffective assistance of counsel,
  • Newly discovered evidence.
• Federal Habeas Corpus for State Prisoners, 28 U.S.C. § 2254. A state prisoner may petition federal court for relief if they claim a violation of federal constitutional rights, after exhausting all state remedies.
• Certificate of Appealability (COA) Requirement, 28 U.S.C. § 2253(c). Before a petitioner can appeal the denial of a habeas petition under § 2254 or § 2255, they must obtain a Certificate of Appealability from the district or appellate court.

General Steps to Appealing a Conviction or Decision

At the state level, Georgia’s appellate process is governed by Title 5, Chapter 6 of the Georgia Code and the Georgia Rules of Appellate Procedure. Generally, the steps to appealing a decision by a trial court are:

• First, filing a Notice of Appeal – O.C.G.A. § 5-6-38(a). This document is filed with the trial court to notify the court and opposing parties of the intent to appeal. It must be filed within 30 days of the final decision.
• Preparing the Trial Record – O.C.G.A. § 5-6-41. The court record includes pleadings, the transcript of the trial, evidence, and motions from the trial court, any pretrial motions and transcripts of those hearings. This record is compiled and sent to the appellate court for review.
• Appellate Briefs – Georgia Court of Appeals Rules 23 and 25. Written briefs are submitted by both parties, including the appellant’s initial brief outlining errors, the appellee’s response brief responding to those claims, and the appellant’s reply brief. These written briefs are essential in framing the arguments for the appeals court.
• Oral Argument – Georgia Court of Appeals Rule 30. In some cases, attorneys may present oral arguments to clarify positions before the court. Both sides generally have between 15 to 30 minutes (depending on the court) to argue their positions.
• Appellate Decision. After reviewing the court record, written briefs, and hearing oral arguments (if applicable), the appellate court issues its court’s decision. The court may affirm, reverse, or remand the case back to the trial court.

What If You Don't Agree With the Appeals Court Decision?

If dissatisfied with the ruling by the appeals court, you may petition the Georgia Supreme Court or the Supreme Court of the United States—the highest courts—via certiorari or file other motions such as a Motion for Reconsideration or a Federal Habeas Corpus petition.

The Role of Appellate Attorneys and Legal Advice

Because appeals hinge on detailed analysis of the trial court’s decision, the transcript of the trial, and the court record, having knowledgeable appellate counsel is critical. Experienced attorneys provide legal advice and craft effective written briefs to best present the issues before the higher court.

If you need assistance with navigating the criminal appeals process or require expert legal advice in criminal law or criminal defense, contact Garland, Samuel & Loeb, P.C. Our team is ready to help you pursue justice through the appellate system.