Appeals & Post Conviction
Challenging Guilty Pleas or Unlawful Detention
- Petition for Habeas Corpus
- O.C.G.A. § 9-14-1 through O.C.G.A. § 9-14-41 provides the right and procedures for any person restrained of his liberty, under any pretext or under a sentence imposed by any Georgia court, the right to inquire into the legality of the restraint.
In the case of a guilty plea, a person has waived all of their rights to direct appeal (explained above) by waiving the right to trial and entering a guilty plea. However, you do not waive all of your rights by entering a plea. A writ of habeas corpus protects an individual from having his or her freedom lawlessly taken away. A petition for writ of habeas corpus is a civil proceeding used to challenge the judge’s decision that led to the criminal conviction. This is usually based on ineffectiveness or poor advice of your lawyer or other overall circumstances of your plea that led to an unlawful restraint of your freedom and a violation of your Constitutional rights.
Typically, you have four years from the date of a felony conviction to challenge your plea, or one year from the date of a misdemeanor conviction. However, there are instances where you might meet an exception. For example, if you are not a U.S. Citizen, and your lawyer improperly informed you about the immigration consequences of your plea, it is possible you meet the Padilla exception or another exception under O.C.G.A. § 9-14-42.
- Withdrawal of a Guilty Plea
In most cases, a person may ask permission to withdraw their guilty plea prior to sentencing. However, once a judgment of guilt and sentence is entered, it is much more difficult to return to court and request a withdrawal of the plea. It is possible with diligent and timely efforts. We are required to file a motion or petition to withdraw your guilty plea within that jurisdiction’s “term of court.” A “term of court” is a period of time that the court is in session for business. Terms of court are found in the Georgia Code at O.C.G.A. § 15-6-3 or here.
This motion must be timely and set forth facts that would justify the withdrawal of the guilty plea. We must show the court that there is a fair and just reason supporting the withdrawal of the plea. Examples of grounds that may justify a withdrawal are:
- You did not understand the consequences of your guilty plea.
- Counsel was ineffective in violation of the Sixth Amendment of the United States Constitution.
- The prosecution failed to abide by the terms of a plea bargain agreement.
- The court failed to inform the accused of the minimum and maximum penalties associated with entering a guilty plea.
- Sentence Modifications or Reductions
If you have been recently sentenced and wish to have your sentence changed or reduced, you likely only have one year from the date of sentencing. The authority of a Judge to modify your sentence within one year is provided by O.C.G.A. § 17-10-1 et seq. We must file a motion with the court providing compelling reasons to change your sentence upon a timely request.
- Expungement or Record Restriction
The laws in on expungement (now known as Record Restriction) have changed dramatically since July 1, 2013 providing more opportunities to protect your record, and there are more positive changes to come. O.C.G.A. § 35-3-37 provides for the restriction of certain criminal history records when approved by the prosecuting attorney. For arrests after July 1, 2013, there is no application process. We must contact the courts, typically by filing a motion, to have your record restricted. For arrests prior to July 1, 2013, we are required to apply for restriction at the arresting agency. It is important we carefully review your criminal history to see if record restriction is possible. You do not want negative information (including mugshot photos) released to the public, affecting your opportunity for greater success, if there is a legal mechanism to restrict those records.
- Pardon Requests and Restoration of Rights
Pardon requests are an under-used legal mechanism to remedy consequences caused by a Georgia conviction. A pardon is an order granted to those individuals who have maintained a good reputation in their community, following the completion of their sentence(s) for a criminal offense. A Pardon is an official statement attached to the criminal record that states that the State of Georgia has pardoned the crime. It does not expunge, remove or erase the crime from your record. The applicant must wait until at least five years have elapsed since the applicant was released from supervision (including probation and/or parole).
The Restoration of Rights is an order restoring a person’s civil and political rights which are lost in Georgia upon conviction. These include the right to run for and hold public office, to serve on a jury and to serve as a Notary Public. Restoration of rights does not include the right to possess, own or to carry a concealed firearm. The right to vote is automatically restored upon completion of your sentence(s); therefore you need not submit an application in order to restore your right to vote.
A pardon is an exceptional remedy that is carefully considered by the Georgia State Board of Pardons and Paroles. It is important to make the best possible presentation to the Board along with your request. If a Georgia conviction is affecting your livelihood, a request for a pardon may your best chance in restoring your future.
Direct Appeals of a Trial Verdict or Revocation of Probation Hearing
Motion for New Trial
O.C.G.A. § 5-5-1 through O.C.G.A. § 5-5-51 provides the power of the superior, state, juvenile courts, and the City Court of Atlanta to correct errors and grant new trials in different scenarios where the law allows. In any case when the verdict of a jury (or Judge) is found contrary to principles of justice and equity, where the verdict was decided in spite of weight of the evidence, where material evidence was illegally admitted or withheld, where there is newly discovered material evidence, or on other grounds based on sounds legal discretion – the judge may grant a new trial before a new jury.
This Motion for New Trial must be filed within 30 days of the jury verdict or the judge’s entry of judgment.
O.C.G.A. § 5-6-35 specifically allows for a Motion for New Trial in proceedings involving a revocation of probation or the Sexual Offender Registry.
Appeals to Appellate Courts
O.C.G.A. § 5-6-1 through O.C.G.A. § 5-6-51 provides the rules governing criminal appeals to the Georgia Court of Appeals or the Georgia Supreme Court. Only final judgments of the court below can be appealed (final judgments where the case is no longer pending, rulings on a motion that would dispose of the case, or orders regarding mandamus) or when the lower court Judge a certificate of immediate review (Interlocutory Appeal).
Notice of Appeal must be filed within 30 days after the appealable decision or judgment is filed.