2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 2 - Death Penalty Generally
§ 17-10-36. Establishment of Unified Review Procedure by Supreme Court; Effect on Habeas Corpus

1. The Supreme Court of Georgia shall establish, by rules, a new unified review procedure to provide for the presentation to the sentencing court and to the Supreme Court of all possible challenges to the trial, conviction, sentence, and detention of defendants upon whom the sentence of death has been or may be imposed, which challenges before July 1, 1988, have been presented for review by the former unified review procedure under this subsection. Such new unified review procedure shall govern both pretrial and posttrial appellate review of death penalty cases.
2. The Supreme Court shall establish, by rules, a series of check lists to be utilized by the trial court, the prosecuting attorney, and defense counsel prior to, during, and after the trial of cases in which the death penalty is sought to make certain that all possible matters which could be raised in defense have been considered by the defendant and defense counsel and either asserted in a timely and correct manner or waived in accordance with applicable legal requirements, so that, for purposes of any pretrial review and the trial and posttrial review, the record and transcript of proceedings will be complete for a review by the sentencing court and the Supreme Court of all possible challenges to the trial, conviction, sentence, and detention of the defendant.
3. Nothing in this Code section or in the rules of the Supreme Court shall limit or restrict the grounds of review or suspend the rights or remedies available through the procedures governing the writ of habeas corpus.
4. The procedures governing the writ of habeas corpus may be employed to assert rights or seek remedies if the procedures established in the rules of the Supreme Court as applied to the petitioner are inadequate or ineffective in any constitutional sense.

(Code 1933, § 27-2538, enacted by Ga. L. 1980, p. 390, § 1; Ga. L. 1988, p. 1437, § 5.)

- Habeas corpus generally, T. 9, C. 14.

- Pursuant to Code Section 28-9-5, in 1988, a comma was inserted following "July 1, 1988" in subsection (a) and a comma was deleted following "death penalty is sought" near the beginning of subsection (b).

- For article, "A Study of the Unified Appeal Procedure in Georgia," see 23 Ga. L. Rev. 185 (1988). For survey article on death penalty law, see 60 Mercer L. Rev. 105 (2008).

ANALYSIS

• General Consideration
• To What Proceedings Section Applicable

General Consideration

Constitutionality.

- Unified appeal procedure under O.C.G.A. § 17-10-36 does not violate the due process clause of U.S. Const., amend. 14 in that the procedure fails to provide a defendant with reciprocal rights of discovery, nor does the procedure violate the equal protection clause of the same amendment. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982); Putman v. Turpin, 53 F. Supp. 2d 1285 (M.D. Ga. 1999).

Defendant's conviction for malice murder, aggravated battery, and possession of a firearm during the commission of a felony were affirmed as the Unified Appeal Procedure under O.C.G.A. § 17-10-36 was not unconstitutional; it was designed for the benefit, not the detriment of a defendant, and it did not interfere with the attorney-client relationship. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).

- Purpose of the unified appeal procedure under O.C.G.A. § 17-10-36 is not to force a waiver of any rights. Rather, the procedure is designed to prevent the occurrence of error to the maximum extent feasible and to correct as promptly as possible any error that nonetheless may occur. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982).

- Unified appeal procedure benefits criminal defendant against whom death penalty is sought by ensuring that all state and federal rights available to the defendant are made known to the defendant. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982).

- Defendant has not suffered the denial of a constitutional right under O.C.G.A. § 17-10-36 when a defendant is offered the opportunity, prior to and during trial, to state that the defendant is dissatisfied with the defendant's attorney's assistance. By affording a defendant numerous opportunities to raise questions or objections concerning the defendant's counsel's assistance, the unified appeal procedure recognizes that prior to or during trial the problem of ineffective assistance of counsel may be more suitably remedied than after conviction and the imposition of the death sentence. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982).

Cited in Buttrum v. Black, 721 F. Supp. 1268 (N.D. Ga. 1989); Williams v. Turpin, 87 F.3d 1204 (11th Cir. 1996); Mincey v. Head, 206 F.3d 1106 (11th Cir. 2000); Worthy v. State, 307 Ga. App. 297, 704 S.E.2d 808 (2010); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).

To What Proceedings Section Applicable

Procedure designed to protect defendant during each phase of judicial process.

- Unified appeal procedure is designed to protect the criminal defendant in this potentially precarious situation during each phase of the judicial process which may ultimately result in a conviction and sentence of death. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982).

- Proceedings under unified appeal procedure are applicable only in cases in which death penalty is sought, and commence at earliest possible opportunity after indictment. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982).

- Georgia's Unified Appeal Procedure, O.C.G.A. § 17-10-36, setting forth rules promulgated by the Georgia Supreme Court that prescribed procedures to be utilized in death penalty cases by the trial court, defense counsel, and the prosecutor prior to, during, and after trial, did not violate a state death row inmate's right to silence by requiring the inmate to answer the court's questions about the inmate's satisfaction with defense counsel and the manner in which the defense was being conducted. Ford v. Schofield, 488 F. Supp. 2d 1258 (N.D. Ga. 2007), aff'd, 546 F.3d 1326 (11th Cir. Ga. 2008).

- Unified appeal procedure establishes unified motion for review procedure; this "motion" encompasses pretrial, trial, and certain review proceedings. Sliger v. State, 248 Ga. 316, 282 S.E.2d 291 (1981), cert. denied, 455 U.S. 945, 102 S. Ct. 1442, 71 L. Ed. 2d 657 (1982).

- Because O.C.G.A. § 17-10-36 did not grant the Supreme Court of Georgia with the power to abrogate or interfere with an otherwise-valid statutory enactment, such as the statutory procedure by which prosecutors procured indictments and conducted criminal prosecutions through them, the trial court did not err in refusing to quash the indictment filed against the defendant, despite the fact that a 6.04 percentage point under-representation of white persons on the grand jury list from which the defendant's grand jury was selected violated the standard outlined in Ga. Unif. R. Super. Ct. 34, Unif. App. P. II(E). Edwards v. State, 281 Ga. 108, 636 S.E.2d 508 (2006).