Appeal


TABLE OF CONTENTS

 

1.Right to appeal

 

1.1Defendant’s right to appeal

 

1.2State’s right to appeal

 

1.2.1Orders from which the State may appeal

 

  1. From an order decision, or judgment setting aside or dismissing any indictment, accusation, or petition alleging that a child has committed a delinquent act or any count thereof; O.C.G.A. §5-7-1 (a) (1)

 

  1. From an order, decision or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds; O.C.G.A. §5-7-1 (a) (2)

 

  1. From an order, decision or judgment sustaining a plea or motion in bar, when the defendant has not been placed in jeopardy; O.C.G.A. §5-7-1 (a) (3)

 

  1. From an order, decision, or judgment suppressing or excluding evidence when the defendant has not been placed in jeopardy; O.C.G.A. §5-7-1 (a) (4)

 

  1. From an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws; O.C.G.A. §5-7-1 (a) (5)

 

  1. From an order, decision, or judgment of a superior court transferring a case to the juvenile court; O.C.G.A. §5-7-1 (a) (6)

 

  1. From an order, decision, or judgment of a superior court granting a motion for new trial O.C.G.A. §5-7-1 (a) (7)

 

  1. From an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy; O.C.G.A. §5-7-1 (a) (8)

 

  1. From an order, decision, or judgment whereby the judge deviated from the mandatory minimum sentence required as punishment for sexual offenders; See O.C.G.A. §5-7-1 (a) (9)

 

1.2.2Defendant’s right to cross appeal

 

1.2.3Defendant’s right to bail pending appeal

 

2.Procedure, generally applicable to all appeals

 

2.1Preparation of trial transcript

 

2.1.1Felony cases

 

2.1.2Misdemeanor cases

 

2.2Notice of appeal

 

2.2.1Content of notice

 

  1. The title and docket number of the case; O.C.G.A. § 5-6-37

 

  1. The name of the appellant and the name and address of his attorney; O.C.G.A. § 5-6-37

 

  1. A concise statement of the judgment, ruling, or order entitling the appellant to take an appeal; O.C.G.A. § 5-6-37

 

  1. The court appealed to; O.C.G.A. § 5-6-37

 

  1. A designation of those portions of the record to be omitted from the record on appeal; O.C.G.A. § 5-6-37

 

  1. A concise statement of jurisdiction O.C.G.A. § 5-6-37

 

  1. A brief statement of the offense and the punishment prescribed.  O.C.G.A. § 5-6-37

 

  1. Statement of whether a transcript of evidence and proceedings is to be transmitted as part of the record on appeal.  O.C.G.A. § 5-6-37

 

2.2.2Time of filing notice

 

2.2.2.1General rule

 

2.2.2.2Motion for new trial

 

2.3Enumeration of errors

 

2.4Service of notices, motions, pleadings, briefs, etc.

 

2.5Dismissal of appeal

 

2.5.1Grounds for dismissal

 

2.5.1.1Failure to file notice of appeal within allotted time, O.C.G.A. §5-6-48 (b) (1)

 

2.5.1.2Decision or judgment is not appealable, O.C.G.A. §5-6-48 (b) (2)

 

2.5.1.3Questions presented have become moot, O.C.G.A. §5-6-48 (b) (3)

 

3.Direct appeal

 

3.1Orders subject to direct appeal

 

3.1.1Final judgment O.C.G.A. §5-6-34 (a) (1)

 

3.1.2Contempt O.C.G.A. §5-6-34 (a) (2)

 

3.1.3Ruling on a motion which would be dispositive if granted with regard to the regulation of firearms O.C.G.A. §5-6-34 (a) (6)

 

3.1.4Sentence which deviates from the mandatory minimum sentence for a sexual offender O.C.G.A. §5-6-34 (a) (10)

 

3.1.5Pretrial proceedings in death penalty cases O.C.G.A. §5-6-34 (c)

 

3.2Procedure

 

3.2.1Trial judge enters order

 

4.Appeal by application and certification

 

4.1Orders subject to appeal by application and certification

 

4.1.1Trial judge certifies that the order, decision, or judgment is of such importance to the case that immediate review should be had O.C.G.A. §5-6-34 (b)

 

4.1.2Denial of defendant’s motion to recuse judge O.C.G.A. §5-6-34 (b)

 

4.1.3Appeals from orders revoking probation O.C.G.A. §5-6-35 (a) (5)

 

4.2Procedure

 

4.2.1Trial judge enters order

 

4.2.2Trial judge certifies order

 

4.2.3Party files application for appeal

 

4.2.3.1Time for filing application

 

4.2.3.2Contents of application

 

4.2.3.2.1Statement specifying the order or judgment being appealed

 

4.2.3.2.2Statement setting forth jurisdiction of appellate court

 

4.2.3.2.3Enumeration of errors

 

4.2.3.2.4Statement setting forth the need for interlocutory appellate review

4.2.3.2.5 Record

 

4.2.3.3Filing of application

 

4.2.3.4Service of application

 

4.2.4Opposing parties response to application

 

4.2.5Appellate Court reviews application for appeal

 

4.2.6Effect of granting application for appeal

 

4.2.6.1Parties file notice of appeal

 

4.2.6.2Proceedings before the trial court stayed

 

5.Place of detention during appeal

 

5.1General rule

 

5.1.1Duty of clerk of court

 

5.1.1Duty of Department of Corrections

 

5.2Request to remain in the county of conviction

 

  1. Standard of review on appeal

 

  1. Issues of fact

 

  1. Definition of issue of fact

 

  1. Standard of review is “supported by any evidence”

 

  1. No “cumulative error” rule

 

  1. Remedies available on appeal

 

  1. Judgment reversed

 

 

OUTLINE

 

1.Right to appeal

 

  1. Defendant’s right to appeal

 

  • … the defendant in any criminal proceeding in the superior, state, or city courts may appeal from any sentence, judgment, decision, or decree of the court, or of the judge thereof in any matter heard at chambers.  O.C.G.A. §5-6-33 (a) (1).  

 

  1. State’s right to appeal

 

1.2.1Orders from which the State may appeal

 

  1. From an order decision, or judgment setting aside or dismissing any indictment, accusation, or petition alleging that a child has committed a delinquent act or any count thereof; O.C.G.A. §5-7-1 (a) (1)

 

  • By ruling that Yapo was immune from prosecution on the battery counts, the court in effect dismissed those two counts of the indictment.  When the ruling of the trial court is in substance a dismissal of the indictment, the State may appeal an order dismissing the indictment under O.C.G.A. §5-7-1 (a) (1).  Because O.C.G.A. §5-7-1 (a) (1) provides that the State may appeal an order dismissing any count of the indictment, the court’s ruling here that in effect dismissed two of the three counts was appealable.  State v. Yapo, 296 Ga. App. 158, 159 (2009) (citations omitted).

 

  1. From an order, decision or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds; O.C.G.A. §5-7-1 (a) (2)

 

  1. From an order, decision or judgment sustaining a plea or motion in bar, when the defendant has not been placed in jeopardy; O.C.G.A. §5-7-1 (a) (3)

 

  1. From an order, decision, or judgment suppressing or excluding evidence when the defendant has not been placed in jeopardy; O.C.G.A. §5-7-1 (a) (4)

 

  1. From an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws; O.C.G.A. §5-7-1 (a) (5)

 

  1. From an order, decision, or judgment of a superior court transferring a case to the juvenile court; O.C.G.A. §5-7-1 (a) (6)

 

  1. From an order, decision, or judgment of a superior court granting a motion for new trial O.C.G.A. §5-7-1 (a) (7)

 

  1. From an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy; O.C.G.A. §5-7-1 (a) (8)

 

  1. From an order, decision, or judgment whereby the judge deviated from the mandatory minimum sentence required as punishment for sexual offenders; See O.C.G.A. §5-7-1 (a) (9)

 

1.2.2Defendant’s right to cross appeal

 

  • In any instance in which any appeal is taken by and on behalf of the State of Georgia in a criminal case, the defendant shall have the right to cross appeal. Such cross appeal shall be subject to the same rules of practice and procedure as provided for in civil cases under Code Section 5-6-38.  O.C.G.A. §5-7-1 (b).

 

1.2.3Defendant’s right to bail pending appeal

 

  • In the event the state files an appeal as authorized in this chapter, the accused shall be entitled to be released on reasonable bail pending the disposition of the appeal, except in those cases punishable by death. The amount of the bail, to be set by the court, shall be reviewable on direct application by the court to which the appeal is taken.  O.C.G.A. §5-7-5

 

2.Procedure, generally applicable to all appeals

 

  1. Preparation of trial transcript

 

  • … all motions, colloquies, objections, rulings, evidence, whether admitted or stricken on objection or otherwise, copies or summaries of all documentary evidence, the charge of the court, and all other proceedings which may be called in question on appeal or other post-trial procedure shall be reported; and, where the report is transcribed, all such matters shall be included in the written transcript, it being the intention of this article that all these matters appear in the record.  O.C.G.A. §5-6-41 (b)

 

  1. Felony cases

 

  • In all felony cases, the transcript of evidence and proceedings shall be reported and prepared by a court reporter as provided in Code Section 17-8-5 or as otherwise provided by law.  O.C.G.A. §5-6-41 (a).

 

  1. Misdemeanor cases

 

  • In all misdemeanor cases, the trial judge may, in the judge’s discretion, require the reporting and transcribing of the evidence and proceedings by a court reporter on terms prescribed by the trial judge.  O.C.G.A. §5-6-41 (b).

 

  1. Notice of Appeal

 

  • an appeal may be taken to the Supreme Court or the Court of Appeals by filing with the clerk of the court wherein the case was determined a notice of appeal.  O.C.G.A. § 5-6-37.

 

  1. Content of notice

 

  1. The title and docket number of the case; O.C.G.A. § 5-6-37

 

  1. The name of the appellant and the name and address of his attorney; O.C.G.A. § 5-6-37

 

  1. A concise statement of the judgment, ruling, or order entitling the appellant to take an appeal; O.C.G.A. § 5-6-37

 

  1. The court appealed to; O.C.G.A. § 5-6-37

 

  1. A designation of those portions of the record to be omitted from the record on appeal; O.C.G.A. § 5-6-37

 

  • If counsel raise issues on appeal relating to voir dire, they also must transcribe the voir dire in order for there to be an appellate review, as an appellant carries the burden of showing error by the record.  Weeks v. State, 270 Ga. App. 889 (2004) (quoting Bryant v. State, 270 Ga. 266 (1998)).

 

  1. A concise statement of jurisdiction O.C.G.A. § 5-6-37

 

  1. A brief statement of the offense and the punishment prescribed.  O.C.G.A. § 5-6-37

 

  1. Statement of whether a transcript of evidence and proceedings is to be transmitted as part of the record on appeal.  O.C.G.A. § 5-6-37

 

  1. Time of filing notice

 

  1. General rule

 

  • A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of; O.C.G.A. §5-6-38 (a).

 

  1. Motion for new trial

 

  • … when a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the notice shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.  O.C.G.A. §5-6-38 (a).

 

  1. Enumeration of errors

 

  • The appellant … shall file with the clerk of the appellate court, at such time as may be prescribed by its rules, an enumeration of the errors which shall set out separately each error relied upon. The enumeration shall be concise and need not set out or refer to portions of the record on appeal. …  The appellate court, by rule, may permit the enumeration to be made a part of the brief.  O.C.G.A. §5-6-40

 

  1. Service of notices, motions, pleadings, briefs, etc.

 

  • Service must be made upon the attorney for the party unless otherwise ordered by the court.  See § 5-6-32 (a).

 

  • Service may be made in person or by mail.  Service by mail may be addressed to the party’s last known address.  See § 5-6-32 (a).

 

3.Direct appeal

 

3.1Orders subject to direct appeal

 

3.1.1Final judgment O.C.G.A. §5-6-34 (a) (1)

 

3.1.2Contempt O.C.G.A. §5-6-34 (a) (2)

 

3.1.3Ruling on a motion which would be dispositive if granted with regard to the regulation of firearms O.C.G.A. §5-6-34 (a) (6)

 

3.1.4Sentence which deviates from the mandatory minimum sentence for a sexual offender O.C.G.A. §5-6-34 (a) (10)

 

3.1.5Pretrial proceedings in death penalty cases O.C.G.A. §5-6-34 (c)

 

3.2Procedure

 

3.2.1Trial judge enters order

 

4.Appeal by application and certification

 

4.1Orders subject to appeal by application and certification

 

4.1.1Trial judge certifies that the order, decision, or judgment is of such importance to the case that immediate review should be had O.C.G.A. §5-6-34 (b)

 

4.1.2Denial of defendant’s motion to recuse judge O.C.G.A. §5-6-34 (b)

 

4.1.3Appeals from orders revoking probation O.C.G.A. §5-6-35 (a) (5)

 

4.2Procedure

 

4.2.1Trial judge enters order

 

4.2.2Trial judge certifies order

 

  • The trial judge in rendering an order, decision, or judgment, not otherwise subject to direct appeal, including but not limited to the denial of a defendant’s motion to recuse in a criminal case, [may certify] within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that immediate review should be had … O.C.G.A. §5-6-34 (b).

 

  • Other than from an order, decision, or judgment sustaining a motion to suppress evidence illegally seized, in any appeal under this chapter where the order, decision, or judgment is not final, it shall be necessary that the trial judge certify within ten days of entry thereof that the order, decision, or judgment is of such importance to the case that an immediate review should be had.  O.C.G.A. §5-7-2.

 

  • To determine the due date for filing, start counting with the day after docketing, including weekends and holidays.  When an expiration date falls on a Saturday, Sunday, or an official state of federal holiday, the time for filing is extended to the next business day.  S. Ct. of Ga. Rule 11.

 

4.2.3Parties file application for appeal

 

4.2.3.1Time for filing application

 

  • Application must be made to the appellate court within ten days after certificate of appeal is granted by the trail court.  See O.C.G.A. §5-6-34 (b).

 

  • The application shall be filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order, decision, or judgment complained of and a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties as provided by law, except that the service shall be perfected at or before the filing of the application. When a motion for new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict has been filed, the application shall be filed within 30 days after the entry of the order granting, overruling, or otherwise finally disposing of the motion.  O.C.G.A. §5-6-35 (d).

 

4.2.3.2Contents of application

 

  • The application shall be in the nature of a petition and shall set forth the need for such an appeal and the issue or issues involved therein.  O.C.G.A. §5-6-34 (b).

 

  • The applicant shall include as exhibits to the petition a copy of the order or judgment being appealed and should include a copy of the petition or motion which led directly to the order or judgment being appealed and a copy of any responses to the petition or motion. An applicant may include copies of such other parts of the record or transcript as he deems appropriate. No certification of such copies by the clerk of the trial court shall be necessary in conjunction with the application.  O.C.G.A. §5-6-35 (c).

 

4.2.3.2.1Statement specifying the order or judgment being appealed

 

4.2.3.2.2Statement setting forth jurisdiction of appellate court

 

4.2.3.2.3Enumeration of errors

 

4.2.3.2.4Statement setting forth the need for interlocutory appellate review

 

4.2.3.2.5 Record

 

  • The applicant may, at his or her election, include copies of such parts of the record as he or she deems appropriate, … O.C.G.A. §5-6-34 (b).

 

  1. Filing of application

 

  • The application shall be filed with the clerk of the Supreme Court or the Court of Appeals … O.C.G.A. §5-6-34 (b).

 

  1. Service of application

 

  • … a copy of the application, together with a list of those parts of the record included with the application, shall be served upon the opposing party or parties in the case … service shall be perfected at or before the filing of the application.  O.C.G.A. §5-6-34 (b).

 

  1. Opposing parties response to application

 

  • The opposing party or parties shall have ten days from the date on which the application is filed in which to file a response. The response may be accompanied by copies of the record in the same manner as is allowed with the application.  O.C.G.A. §5-6-34 (b); O.C.G.A. §5-6-35 (e).

 

  1. Appellate Court reviews application for appeal

 

  • … the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken from the order, decision, or judgment [certified by the trial court] … O.C.G.A. §5-6-34 (b).

 

4.2.6Effect of granting application for appeal

 

  • The Supreme Court or the Court of Appeals shall issue an order granting or denying such an appeal within 45 days of the date on which the application was filed. O.C.G.A. §5-6-34 (b).

 

4.2.6.1Parties file notice of appeal

 

  • Within ten days after an order is issued granting the appeal, the applicant, to secure a review of the issues, may file a notice of appeal as provided in O.C.G.A. §5-6-37.  O.C.G.A. §5-6-34 (b).

 

  1. Proceedings before the trial court stayed

 

  • The notice of appeal shall act as a supersedeas … O.C.G.A. §5-6-34 (b).

 

5.Place of detention during appeal

 

  1. General rule

 

  1. Duty of the clerk of court

 

  • The clerk of court shall notify the Department of Corrections of the sentence, including information about the convicted person’s pretrial confinement, within 30 working days following the receipt of the sentence.  O.C.G.A. §42-5-50 (a)

 

5.1.2Duty of the Department of Corrections

 

  • The Department of Corrections must assign the convicted person to a correctional institution within 15 of notification by the clerk of the court.  O.C.G.A. §42-5-50 (b).

 

5.2Request to remain in the county of conviction

 

  • In the event that the attorney for the convicted person shall file a written request with the court setting forth that the presence of the convicted person is required within the county of the conviction, or incarceration, in order to prepare and prosecute properly the appeal of the conviction, the convicted person shall not be transferred to the correctional institution as provided in subsection (b) of this Code section. In such event the convicted person shall remain in the custody of the local jail or lockup until all appeals of the conviction shall be disposed of or until the attorney of record for the convicted person shall file with the trial court an affidavit setting forth that the presence of the convicted person is no longer required within the county in which the conviction occurred, or in which the convicted person is incarcerated, whichever event shall first occur.  O.C.G.A. §42-5-50 (c).

 

  • After conviction, defense counsel requested that Dorsey remain housed in a county facility so as to give counsel access to defendant for purposes of prosecuting his appeal under O.C.G.A. §42-5-50 (c).  While that statute is couched in mandatory language, the trial court is empowered to order otherwise where an issue is properly raised before the trial court regarding jail security or other matters involving administration of the jail.  Here, the trial court initially granted the request and then reconsidered after an evidentiary hearing.  The court found that Dorsey’s status as a former law enforcement officer “created an extraordinary situation that required a complex and secretive procedure rotating his placement in metropolitan jails.  That procedure is dangerous, difficult to coordinate, and a burden on county resources.”  The parties stipulated to the foregoing as well as to the fact that Dorsey was a high security risk.  There was no error.  Dorsey v. State, 279 Ga. 534, 544 (2005) (citations omitted).

 

  • The statute is clearly couched in mandatory language, indicating that a trial court has not discretion in denying a request to remain in the county pending appeal.  Helmeci v. State, 230 Ga. App. 866, 871 (1998).

 

  • The trial court erred in denying Helmeci’s motion to remain in the county jail pending the disposition of his appeals.  Although retaining Helmeci in the county jail might necessitate transferring other prisoners to facilities in other counties, it must be remembered the Helmeci has a statutory right to remain in the county during his appeals, and that the county has a concomitant obligation to accommodate that right.  The fact that his presence might cause some inconvenience to the county does not mean that it would result in an insecure or unsafe condition.  Accordingly, Helmeci has the right to remain in the count jail pending the disposition of all appeals in this case, including any possible appeal to the Supreme Court.  Helmeci v. State, 230 Ga. App. 866, 871 – 72 (1998).

 

  1. Standard of review on appeal

 

  1. Issues of fact

 

  1. Definition of issue of fact

 

  • Issues of fact refers to what are termed basic, primary, or historical facts: facts in the sense of a recital of external events and the credibility of their narrators.  Cuyler v. Sullivan, 446 U.S. 335, 342 (1980) (citations omitted).

 

  1. Standard of review is “supported by any evidence”

 

  • The trial judge’s [] fact-finding will not be disturbed on appellate review when supported by any evidence…. We do not review that evidence de novo but are required to defer to the trial court’s resolution of the fact issues in conflict.  Blazer v. State, 266 Ga. App. 743, 745 (2004).

 

6.2No “cumulative error” rule

 

  • Georgia does not follow a cumulative error rule of prejudice.  Al-Amin v. State, 278 Ga. 74, 86 (2004) (citation omitted).

 

  • This state does not follow a “cumulative error” rule of prejudice; any error of record must stand or fall on its own merits and is not aided or aggravated by the accumulative effect of other claims of error.  Weeks v. State, 270 Ga. App. 889, 891 (2004) (quoting Pollard v. State, 260 Ga. App. 540, 542 (2003)).

 

7Remedies available on appeal

 

7.1Judgment reversed

 

  • If the judgment of the superior court is reversed on every point of exception, or on a single one only, it is entirely vacated.  This done, the case stands for trial, de novo, as in the first instance, unless otherwise disposed of, by order of this court.  Clark v. Jefferson Pilot Life Insurance Co., 209 Ga. App. 93, 94 (1993) (quoting Worley v. Travelers Indem. Co., 121 Ga. App. 179, 180 (1970)).
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