Appealing a Criminal Conviction in Georgia

This article was updated on July 3, 2019, to reflect the most recent appeal laws in the state of Georgia.

Your Right to Appeal a Crime in Georgia

If you weren’t happy with the outcome of your trial, there is something you can do: file an appeal. With the help of a knowledgeable lawyer, you could get your sentence reduced or even overturned.

However, an appeal isn’t just a simple do-over. There are rules about who does and doesn’t get an appeal, what questions are considered, and what evidence is admissible during one. Here’s an overview.

what is an appeal

What is an Appeal?

When your lawyer files an appeal, it’s a request for a higher court to review your case. In Georgia, there are two special courts, the Court of Appeals and the Supreme Court of Georgia, that take on only appeals cases. Most criminal appeals—other than those involving murder cases or questions about the interpretation of the Georgia Constitution—start at the Court of Appeals.

There are twelve judges on the Georgia Court of Appeals, and three of them are typically assigned to hear a case. Your lawyer will make an argument in writing that summarizes the facts of your trial, and explains why you should get an appeal.

The judges will review the records from your trial and analyze any legal errors, instances of misconduct, or other issues that would justify a second look. They’ll then decide whether or not to grant you an appeal.

An appeal is not an opportunity to re-try your case. You can only be granted an appeal if the judges find that you were denied due process or suffered a miscarriage of justice because of legal errors, procedural issues, misconduct or negligence, or other problems.

Appeals vs. Trials in Georgia

An appeal isn’t a trial, although, in some cases, the Appeals Court may call for your case to be re-tried.

Here’s a look at how they differ.

Trials: During a trial, your case is presented and evidence is considered – such as photographs, documents, witness testimony, expert opinions, forensic evidence, phone records, and more.

In jury trials, a group of 12 jurists decides your case based on the evidence, and a judge presides over the process. In non-jury trials or “bench trials,” the judge both presides over the process and rules on the verdict.

Appeals: During an appeal, your trial is reviewed by a panel of judges. There’s no jury, and you can’t submit new evidence or call new witnesses. The judges will only look at what was presented in your original trial.

In most cases, the panel of judges will not question the facts of the trial, except in instances where the evidence clearly contradicts the verdict.

To request an appeal, your attorney will file a notice in the court where your case was originally tried that you would like to have your case reviewed by the Court of Appeals. After your case is transferred to the Court of Appeals, your attorney will file a brief that identifies any specific instances of error or negligence, and how those affected your case.

Attorneys are sometimes called in to give oral arguments during this process. However, it’s far more common for the decision to be made on the briefs alone, which is why it’s so crucial to work with a lawyer who has experience writing persuasive briefs.


Types of Appeals Rulings in Georgia

There are several possible ways an appeal can be decided. The possibilities include:

Affirmation: If the judges take a look at your case and decide that there weren’t any errors or other issues—or that there were, but they did not have an impact on the result—they may decide to affirm your verdict.

If that happens, the result of your original trial will be allowed to stand.

Remand for further consideration: The judges may decide that there were errors that affected the outcome of your trial, but they weren’t serious enough to invalidate the entire trial. When that happens, they may choose to send your case back to the lower court to review or correct the mistake.

For example, if the trial court improperly sentenced you, the case would be referred back to the lower court so your sentence can be corrected. But your sentence would not be completely invalidated.

Vacate: If the judges find that there were serious errors in your previous trial, and that those resulted in a denial of due process or a miscarriage of justice, they may decide to vacate the original decision.

When that happens, your verdict is overturned and you may get the chance to have your case retried.

Reasons You May Be Granted An Appeal

In criminal cases, you have a right to appeal any conviction. While not every conviction is appealed, sometimes there are errors that may reduce your sentence or justify a new trial. A few of the most common include:

Problems with how the evidence was collected, handled, or presented: Some evidence is inadmissible, such as evidence gathered in an illegal search-and-seizure. In particularly egregious instances, cases can sometimes be built around evidence that never should have been brought up in court.

You may qualify for an appeal if crucial evidence in your case was improperly handled, collected illegally, or presented under objection—or if a witness was asked to testify to something improper.

In addition, prosecutors are required to turn over all their evidence to the defense team during a trial. You may also be granted an appeal if the prosecutor failed to turn over evidence that was important to your case.

Faulty instructions to the jury: If you had a jury trial, there are a number of things that could have gone wrong. One of those involves how the jury may have been instructed on the law regarding your case.

A jury’s job is to determine the facts of the case based on the evidence, and come to a verdict based on the law’s requirements. However, juries are typically made up of laypeople with no legal expertise.

It’s a judge’s job to explain how to interpret the law for each case so that the jury’s verdict is in line with the current laws. If the judge didn’t explain the law properly, or gave unclear instructions that led to confusion, you may have been improperly convicted.

The evidence does not support the verdict: In some cases, the evidence contradicts the verdict. The appeals judges may review the evidence presented in your original trial, and decide whether a reasonable juror would have come to the conclusions your jury did based on the evidence.

If the appeals judges find that the evidence doesn’t support the verdict in your case, your conviction will be set aside. In this scenario, the United States Constitution forbids the state from subjecting you to a second trial.

Illegal sentencing: All crimes have a specific range of penalties that can be applied to each conviction, depending on the circumstances of the case. If your sentence is outside the bounds of the set penalties, you may have grounds to have your sentence modified or overturned.

Ineffective assistance of counsel: The United States Constitution guarantees that every defendant has a right to competent counsel, but it doesn’t always work out that way in practice.

Did your lawyer do a good job of defending you? Did they fulfill the basic requirements of their job? Or did they make crucial mistakes that affected the outcome of your trial?

Did they miss an objection, fail to challenge evidence that should have been challenged, or forget to follow up on witnesses who could have provided key testimony? Was there something major they missed?

The Appeals Court can review your lawyer’s actions in the context of the trial, and identify whether incompetence was involved. But your appeals lawyer needs to demonstrate that the misconduct affected the outcome of your case. If the appeals judges find that it didn’t, your verdict will most likely be upheld.

The judge or lawyer made a legal mistake: It’s possible some aspect of the law or relevant statute was improperly interpreted by the lawyers involved in your case—or even the judge. If this affected the outcome of your trial, it could also be grounds for modifying your sentence—or retrying your case.

Jury misconduct: There are many rules governing jury behavior during a trial. These are necessary to keep the jury unbiased and fair. For instance, jury members are not allowed to communicate with witnesses, attorneys, judges, or bailiffs outside of the court while the trial is going on, as this might create bias.

Use of the Internet during a trial can also be a problem for juries. Members of the jury have to stay away from news coverage about the trial to stay unbiased, and that means avoiding online news sources that may be discussing the events.

But that’s not the only reason jurors must stay away from the Internet. It’s not uncommon for members of a jury to supplement the evidence presented in trial with their own Internet research—and that’s problematic, because jurors are not allowed to consider evidence or information they’ve gathered themselves outside the courtroom.

Mistrials have occurred when jurors have been found conducting online research on topics important to their trials, such as car crash dynamics or mental illness.

But that’s not the only example of Internet-related jury misconduct. In a particularly egregious instance, one juror live-tweeted her trial, polling her audience about whether they believed the defendant to be guilty as it was happening.

If jury misconduct occurred, it may be strong grounds for reversing your conviction.

How to File an Appeal in Georgia

If you were found guilty in criminal court, you have an automatic right to appeal your case—but not forever. A Notice of Appeal or Motion for a New Trial must be filed no later than 30 days after you are sentenced. Otherwise you may not be able to file an appeal at all.

While it is possible to file your own appeal in the court of Georgia, we strongly recommend you hire legal counsel.

We also suggest you use a different lawyer than the one you worked with during your original trial. A new lawyer, ideally one with extensive experience in appeals, can look at your case with fresh eyes and spot things your previous lawyer may have missed.

It’s especially important to have a different lawyer handle your appeal if you believe your previous lawyer was negligent or made serious errors during your trial.

When you hire a lawyer to handle your appeal, they’ll go through the record from your original trial with a fine-toothed comb and create a list of possible reasons to appeal the case. Then they’ll write their brief.

Based on your lawyer’s brief, the judges will decide whether to grant your appeal. Depending on the case, the appeals process may take a long time, sometimes up to a year or more, depending on the court’s backlog and the complexity of the case. You may be in it for the long haul.

However, depending on the severity of your crime, you may be facing years in prison and heavy fines, as well as the interruption of your career, separation from your family, and damage to your reputation. If you suspect there were serious errors in your case, challenging the verdict may be absolutely necessary.

Not everyone gets their verdict modified or overturned. But it happens every day in Georgia courts and if you’re working with an experienced lawyer, the process can be worth it. 


Cherokee County’s Experienced Appeals Lawyers

Once you’ve decided to pursue an appeal, the most important step you can take is hiring the right lawyer. This decision can make a huge difference in the outcome of your appeal.

At Speights Law, we have an excellent track record of success in criminal appeals. Our appellate practice has handled over 50 appeals in Cherokee County and surrounding areas, and we have achieved reversals of convictions on numerous grounds.

We have extensive experience writing persuasive appellate briefs; we understand every step of the process; and we’re familiar with all the judges. We aggressively and meticulously pursue all avenues to help you achieve a positive outcome on your appeal.

Call us at (770) 479-1500 for a consultation — and let’s discuss your situation. Evenings and weekend appointments are available.