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Repost – 3/16/11

by merlin on June 26th, 2012
  • Sumo
This is relevant to what I am working on at this moment.
Sometimes, an issue is purely legal, and the “right” or “wrong ” decision is a matter of contention.  The immediate next step in an adverse decision of the Superior Court in Georgia is to promptly appeal the decision.  The costs for the application for appeal (a writ of certiorari for discretionary appeals), are set out in O.C.G.A. Section 5-6-4 [Fee for writ of certiorari and other appeals; affidavit of indigence]:

The bill of costs for every application to the Supreme Court for a writ of certiorari or for applications for appeals filed in the Supreme Court or the Court of Appeals or appeals to the Supreme Court or the Court of Appeals shall be $80.00 in criminal cases and in habeas corpus cases for persons whose liberty is being restrained by virtue of a sentence imposed against them by a state court and $300.00 in all other civil cases. The costs shall be paid by counsel for the applicant or appellant at the time of the filing of the application or, in the case of direct appeals, at the time of the filing of the original brief of the appellant. In those cases in which the writ of certiorari or an application for appeal is granted, there shall be no additional costs. Costs shall not be required in those instances when at the time the same are due counsel for the applicant or appellant shall file a statement that an affidavit of indigence has been duly filed or file an affidavit that he or she was appointed to represent the defendant by the trial court because of the defendant’s indigency. The clerk is prohibited from receiving the application for appeal or the brief of the appellant unless the costs have been paid or a sufficient affidavit of indigence is filed or contained in the record.

The requirement for an appealable decision that is not “in the middle of the case” – which would involve an interlocutory appeal, when a novel question arises that requires a decision by the appellate courts on something other than a “final judgment” – is that the case no longer be pending in the Court below (a final judgment has been given, and the Court has firmly set itself for or against a side).  It is found at O.C.G.A. Section 5-6-35, which says at subsection a) that “[a]ppeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state:

(1) All final judgments, that is to say, where the case is no longer pending in the court below”

The first step in appealing a judgment is to file a “Notice of Appeal” with the Clerk of Court for the Court from which the judgment to be appealed arises.  The contents that must be included in the notice are laid out in section 5-6-37, and it must provide the “title and docket number of the case; the name of the appellant and the name and address of his attorney; a concise statement of the judgment, ruling, or order entitling the appellant to take an appeal; the court appealed to; a designation of those portions of the record to be omitted from the record on appeal;[and]  a concise statement as to why the appellate court appealed to has jurisdiction rather than the other appellate court”.  If the appeal is from a criminal conviction, there are other details involved, but my own research in this area focuses on a civil matter, and these are the items which must be included.

Among these items is a statement as to which appellate court must be applied to.  The particular areas that certain courts govern in appellate practice are laid out in Sections V and VI of Article VI (Judicial Branch) of the Georgia Constitution.  The Supreme Court has carefully designated cases that are heard specifically before it.  These include the following:

“Paragraph II.   Exclusive appellate jurisdiction of Supreme Court.      The  Supreme Court shall be a court of review and shall exercise exclusive appellate jurisdiction in the following cases:  (1)  All cases involving the construction of a treaty or of the Constitution of the State of Georgia or of the United States and all cases in which the constitutionality of a law , ordinance, or constitutional provision has been drawn in question; and  (2)   All cases of election contest.  Paragraph III.  General appellate jurisdiction of Supreme Court.  Unless otherwise  provided by law , the Supreme Court shall have appellate jurisdiction of the following classes  of cases:  (1)   Cases involving title to land;  (2)   All equity cases;  (3)   All cases involving wills;  (4)   All habeas corpus cases;  (5)   All cases involving extraordinary remedies;  (6)   All divorce and alimony cases;  (7)   All cases certified to it by the Court of Appeals; and  (8)   All cases in which a sentence of death was imposed or could be imposed. Review of all cases shall be as provided by law .”

If the case that is being appealed isn’t in this list, then it goes to the Court of Appeals by default, under Paragraph III of Section V, which states that “[t]he Court of Appeals shall be a court of review and shall exercise appellate and certiorari jurisdiction in all  cases not reserved to the Supreme Court or conferred on other courts by law .”

As I know from past experience, the Court of Appeals handles disputes involving adoption matters.  It is only if the Court of Appeals’ decision isn’t welcome to a party, after it is rendered, that a Petition for Certiorari can be sought to the Supreme Court of the State of Georgia.  However, the particular province of a Court over a kind of dispute isn’t necessarily binding on that party, so much as the substance of the appeal itself is.  According to O.C.G.A. Section 5-6-30, the appellate procedure is to have a “liberal construction”.  That section states that “[i]t is the intention of this article to provide a procedure for taking cases to the Supreme Court and the Court of Appeals, as authorized in Article VI, Sections V and VI of the Constitution of this state; to that end, this article shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case or refusal to consider any points raised therein, except as may be specifically referred to in this article.”  What this effectively means is that a case that is brought incorrectly before one of the appellate courts will be transferred to the appropriate court; the appeal matters, and not the particular designation by a person suffering a wrong at the hands of another.

The appeal must contain what is called an “Enumeration of Errors”, which necessarily involves citation to the record itself (if the case involves any factual dispute but it wasn’t transcribed, then the Appellant is S.O.L.; fortunately for my situation, the fundamental issues are legal matters, and not factual disputes).  O.C.G.A. Section 5-6-40 describes what should be included in this Enumeration, and also states that the Rules of the Court may provide that the Enumeration is part of the Appellate Brief itself.  Under Rule 22(a) of the Rules of the Court of Appeals, “the enumeration of errors, which shall be Part 2 of the appellant’s brief, shall be filed within 20 days after the case is docketed. A separate enumeration of errors is not required.”

Section 5-6-51 sets out a suggested form for the Notice of Appeal in civil cases:


Notice is hereby given that ________________ and ______________, defendants above-named,

hereby appeal to the (Court of Appeals or Supreme Court) from the (describe order or judgment) entered in this action on
Motion for new trial (or motion for judgment n.o.v., etc.) was filed and overruled (or granted, etc.) on (date) .

The clerk will please omit the following from the record on appeal:
Transcript of evidence and proceedings will/will not be filed for inclusion in the record on appeal.
This court, rather than the (Court of Appeals or Supreme Court) has jurisdiction of this case on appeal for the reason that .
Dated: .
Attorney for appellants

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