Post Conviction Relief Attorney in Decatur, Georgia
After a person is convicted in Georgia, what post conviction options are available?
After a person is convicted in Georgia, what post conviction options are available?
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The next step in Georgia is to file a motion for new trial. Unlike in federal cases, this is a critical step in Georgia because this is where your first chance is to raise ineffective assistance of trial counsel. In Georgia, if you don’t raise it at the first opportunity, it’s considered waived. So, you have a motion for new trial, which is before the same judge that heard the trial. If you’re raising ineffective assistance of counsel, you try calling trial counsel as a witness.
If you’re unsuccessful at the motion for new trial, you then file your direct appeal. Murder cases go directly to the Georgia Supreme Court, and cases with constitutional questions that were preserved go to the Georgia Supreme Court. All other cases go to the Georgia Court of Appeals. You brief the case, sometimes you have oral arguments, and sometimes the court wants to decide on the briefs. Then you wait for a decision.
If you’re unsuccessful on direct appeal, your next step would be to file a state habeas. In Georgia, you have four years to file a state habeas from the time your conviction became final after review by the appellate courts. But if you want to save federal time, you actually have to file your Georgia state habeas in less than a year.
After that, if you’re unsuccessful on your habeas and you’ve saved time for federal habeas, you can pursue that. It falls under section 28 USC 2254. After that, if you’re unsuccessful in the federal habeas, you’re into extraordinary remedies—things like an extraordinary motion for new trial or successive habeas. Both of those require new things that you couldn’t have found or raised before, and they are very rarely granted.
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In this video, Atlanta, GA criminal defense attorney Leigh S. Schrope talks about the post conviction options available in Georgia.
She explains that in Georgia, the legal process following a conviction involves several key steps:
- Motion for New Trial: This is the first opportunity to raise issues like ineffective assistance of counsel. If not raised at this stage, it is considered waived. The motion is filed before the same judge who presided over the trial, and trial counsel may be called as a witness.
- Direct Appeal: If the motion for a new trial is unsuccessful, the next step is to file a direct appeal. Murder cases and cases with constitutional questions go to the Georgia Supreme Court, while others go to the Georgia Court of Appeals. The case is briefed, and sometimes oral arguments are held before the court makes a decision.
- State Habeas: If the direct appeal is unsuccessful, a state habeas petition can be filed within four years of the conviction becoming final. However, to preserve federal appeal rights, the state habeas must be filed within a year.
- Federal Habeas: If the state habeas petition fails and time was preserved, a federal habeas petition under 28 USC 2254 can be pursued. If unsuccessful, extraordinary remedies, like a motion for a new trial or successive habeas, may be considered, though these are rarely granted.
- Parole: In Georgia, individuals are eligible for parole after serving one-third of their sentence, though some offenses are not parole-eligible. Those sentenced to life must serve 30 years before becoming eligible for parole.
- Conviction Integrity Units: Some district attorneys’ offices have started forming conviction integrity units to review past convictions for potential errors or injustices. These units are still rare but growing, and the attorney helps clients navigate this process.
