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4. Appealing a Case: An Overview

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Citizen’s Guide

An appeal is a review of what happened in the lower court to determine whether the judge made any mistakes of law and if so, whether you are entitled to relief. The Court of Appeals is bound by the record from the trial court. This means that parties cannot give testimony before the Court of Appeals or introduce new evidence that was not introduced in the trial court. The Court of Appeals decides an appeal based only on the trial court record, the parties’ briefs, the law, and, sometimes, the parties’ oral arguments.

There are three ways an appeal can come to the Court: direct appeals, granted discretionary applications, and granted interlocutory applications. Appeals can be made to the Court of Appeals or the Supreme Court of Georgia. Whether you should appeal to the Court of Appeals or the Supreme Court, the deadlines that apply, and the rules to follow, depend on the type of case you have.

It is important to follow the Georgia statutes regarding appellate procedure and the rules of the Court of Appeals. Failure to do so may result in your appeal being dismissed or denied, or your documents being returned to you. We strongly advise you to hire a lawyer to represent you in this complex process, if possible.

When deciding how to pursue an appeal, consider the following questions:

  1. WHAT TYPE OF APPEAL DO I FILE: A DIRECT APPEAL, A DISCRETIONARY APPLICATION, OR AN INTERLOCUTORY APPLICATION?
    1. Rulings that are directly appealable are set out in OCGA § 5-6-34 (a). See Attachment F. If a ruling is directly appealable, a notice of appeal must be filed with the trial court within the proper time frame.
    2. Rulings that require discretionary applications are set out in OCGA § 5-6-35 (a). See Attachment G. Discretionary applications are filed directly with this Court within the proper time frame.
    3. Interlocutory applications are required to appeal rulings before the case is over. A party who wants to appeal an order before the case is over must ask the trial judge to issue a certificate of immediate review and obtain that certificate within 10 days after the order was issued. See OCGA § 5-6-34 (b), Attachment F. Interlocutory applications are filed directly with this Court within the proper time frame
  2. WHERE DO I FILE THE APPEAL OR APPLICATION?
    1. The Court of Appeals has jurisdiction in most types of cases. The Supreme Court has jurisdiction in cases involving constitutional questions, murder, and habeas corpus. The jurisdiction of each court is set out in Ga. Const., Article VI, Section VI, Paragraphs II & III; Ga. Const., Article VI, Section V, Paragraph III; and OCGA § 15-3-3.1. See Attachment E.
    2. If you direct an appeal or application to the Court of Appeals but the Supreme Court has jurisdiction, the Court of Appeals will transfer it to the Supreme Court, and vice versa. You do not need to file your appeal or application in both courts.
    3. Dispossessory orders are appealed in different ways, depending on which court issued the order. See OCGA 44-7-56. Generally, a party must file either a petition for review or a notice of appeal in state or superior court within seven (7) days after the entry of the judgment, and file a copy of the notice with the clerk of the court that issued the order. OCGA 44-7-56 (b) (1). The required content of the petition for review is set out in OCGA 5-3-7 (e) and a “Model Petition for Review” is included in this Guide at Form 15. Further proceedings within the reviewing court are outlined in the statute. See OCGA 44-7-56.
    4. NOTE: Appeals from the following courts are exempt from the requirement of filing a petition for review in state or superior court, and can be appealed directly to the Court of Appeals: The Municipal Court of Columbus, The Civil Court of Macon-Bibb County; The Civil Court of Richmond County; The Georgia State-wide Business Court; and any other court with an appeal directly to the Court of Appeals or the Supreme Court.
  3. WHAT IS THE DEADLINE FOR FILING?
    1. Usually, a notice of appeal for a direct appeal must be filed within 30 days of the entry of the order or judgment that is being appealed. The notice of appeal is filed in the trial court, not in the Court of Appeals. See OCGA § 5-6-38.
    2. Usually, a discretionary application must be filed within 30 days of the entry of the order or judgment being appealed. See OCGA § 5-6-35 (d).
    3. An interlocutory application must be filed within 10 days of the day the trial court issues a certificate of immediate review. See OCGA § 5-6-34 (b).
    4. To appeal a dispossessory order, the notice of appeal or application must be filed within 7 days of the entry of the order. See OCGA § 44-7-56.
  4. WHAT HAPPENS AFTER I FILE A DIRECT APPEAL?
    1. After you file a notice of appeal in the trial court, the trial court clerk will prepare the record, certify it is accurate, and send it to the Court of Appeals for filing. The Court of Appeals will only docket the case when it receives the complete record. Note: the trial court clerk will not prepare the record until the appellant pays all copy costs to that court or is deemed a pauper by that court. Once the appeal is docketed, the Court will send the parties a docketing notice. See Rule 13.
    2. Upon receiving the docketing notice, the appellant must prepare and file a brief – usually within 20 days – explaining the arguments for the appeal. See Rules 23, 24, and 25.
    3. Then, the appellee (the party responding to the appeal) may file an appellee’s brief that responds to the arguments in the appellant’s brief. See Rule 23 (b). The State must file an appellee’s brief in a criminal case. In other cases, an appellee’s brief is optional.
    4. If the appellee files a brief, then the appellant may file a reply brief, but one is not required. This shorter brief simply replies specifically to arguments made in the appellee’s response brief. See Rule 23 (c). A reply brief is optional.
    5. A panel of three judges will review the case and make a decision. The Court of Appeals may dismiss the case, transfer the case, affirm the trial court decision, or vacate or reverse the trial court decision. (Note: there are circumstances where the number of judges deciding an appeal may change).
  5. WHAT HAPPENS AFTER I FILE A DISCRETIONARY APPLICATION OR INTERLOCUTORY APPLICATION?
    1. Your application contains your arguments about why you think the Court should allow you to appeal. You must include a stamped “filed” copy of the Court’s order and whatever parts of the record you think the Court needs to read.
    2. The other side may file a response within 10 days, but is not required to do so.
    3. The Court of Appeals may dismiss, transfer, grant, or deny the application. If the application is granted, you have 10 days to file a notice of appeal in the trial court.
  6. WHAT CAN I DO IF I DISAGREE WITH THE DECISION OF THE COURT OF APPEALS?
    1. You may file a motion for reconsideration asking the Court to consider its decision again. A motion for reconsideration must be e-filed or physically received in the Clerk’s Office within 10 days of the Court’s decision. The Court may reduce this time limit. See Rule 37.
    2. You may also ask the Supreme Court of Georgia to review this Court’s decision by filing a “notice of intention to petition for a writ of certiorari” in the Court of Appeals and a petition for a writ of certiorari in the Supreme Court. The notice of intention must be filed within 10 days after a decision is issued, or, if a motion for reconsideration is filed, within 10 days after an order ruling on the motion for reconsideration. A party may file the notice without first filing a motion for reconsideration. After that, on the same day that you file the petition for a writ of certiorari with the Supreme Court, you also must file a notice of filing a petition for a writ of certiorari in the Court of Appeals. See Rule 38.
    3. If you do not file a petition for a writ of certiorari, the Court of Appeals will issue a document called a remittitur to the trial court, showing the final judgment of the Court of Appeals. Once the remittitur is issued, jurisdiction of the case returns to the trial court, and this Court no longer accepts any documents in your case. See Rule 39.