2021 Georgia Code
Title 5 - Appeal and Error
Chapter 5 - New Trial
Article 3 - Procedure
§ 5-5-40. Time of Motion for New Trial Generally; Amendments; Extension of Time for Filing Transcript; Time of Hearing; Priority to Cases in Which Death Penalty Imposed; Appeal Not Limited to Grounds Urged; New Trial on Court's Own Motion

Universal Citation: GA Code § 5-5-40 (2021)
  1. All motions for new trial, except in extraordinary cases, shall be made within 30 days of the entry of the judgment on the verdict or entry of the judgment where the case was tried without a jury.
  2. The motion may be amended any time on or before the ruling thereon.
  3. Where the grounds of the motion require consideration of the transcript of evidence or proceedings, the court may in its discretion grant an extension of time, except in cases where the death penalty is imposed, for the preparation and filing of the transcript, which may be done any time on or before the hearing; or the court may in its discretion hear and determine the motion before the transcript of evidence and proceedings is prepared and filed.
  4. The grounds of the motion need not be approved by the court.
  5. The motion may be heard at any time; but, where it is not heard at the time specified in the order, it shall stand for hearing at such time as the court by order at any time may prescribe, unless sooner disposed of.
  6. Motions for new trial in cases in which the death penalty is imposed shall be given priority.
  7. On appeal, a party shall not be limited to the grounds urged in the motion or any amendment thereof.
  8. The court also shall be empowered to grant a new trial on its own motion within 30 days from entry of the judgment, except in criminal cases where the defendant was acquitted.

(Orig. Code 1863, § 3643; Code 1868, § 3668; Code 1873, § 3719; Code 1882, § 3719; Ga. L. 1889, p. 83, § 1; Civil Code 1895, § 5484; Penal Code 1895, § 1063; Civil Code 1910, § 6089; Penal Code 1910, § 1090; Code 1933, § 70-301; Ga. L. 1965, p. 18, § 16; Ga. L. 1973, p. 159, § 5.)

Cross references.

- Death penalty generally, § 17-10-30 et seq.

Law reviews.

- For article outlining proposed revisions of appellate procedure rules with comments, prior to the adoption of the Appellate Practice Act, see 19 Ga. B.J. 145 (1956). For article, "A Discussion of the 1957 Amendments to Rules of Practice and Procedure in Georgia," see 19 Ga. B.J. 395 (1957). For article discussing results of legislative changes in appellate procedure, prior to the enactment of the Appellate Practice Act, see 20 Ga. B.J. 38 (1957). For article discussing the preparation of an amended motion for new trial and facts concerning appellate practice in general, prior to the adoption of the Appellate Practice Act, see 21 Ga. B.J. 424 (1959). For article, "The Appellate Procedure Act of 1965," see 1 Ga. St. B.J. 451 (1965). For article, "1966 Amendments to the Appellate Procedure Act of 1965," see 2 Ga. St. B.J. 433 (1966). For annual survey of law of domestic relations, see 38 Mercer L. Rev. 179 (1986). For survey of 1995 Eleventh Circuit cases on trial practice and procedure, see 47 Mercer L. Rev. 907 (1996). For annual survey of trial practice and procedure, see 58 Mercer L. Rev. 405 (2006). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For note, "Ineffective Assistance of Counsel Blues: Navigating the Muddy Waters of Georgia Law After 2010 State Supreme Court Decisions," see 45 Ga. L. Rev. 1199 (2011). For note, "Seen But Not Heard: An Argument for Granting Evidentiary Hearings to Weigh the Credibility of Recanted Testimony," see 46 Ga. L. Rev. 213 (2011).



  • General Consideration
  • Transcript
  • Motion
  • Application

Extraordinary motion for new trial may be filed at any time after conviction; extraordinary motion must show that there is some material matter which would have been beneficial to the defendant at the time of trial and that such matters were unknown to the defendant and could not have been discovered by the defendant or defense counsel by use of due diligence. 1957 Op. Att'y Gen. p. 69.


Am. Jur. 2d.

- 58 Am. Jur. 2d, New Trial, §§ 4, 69 et seq., 356 et seq., 384.

18B Am. Jur. Pleading and Practice Forms, New Trial, § 14.


- 66 C.J.S., New Trial, § 188 et seq., 218, 265 et seq.


- Inability to perfect record for appeal as ground for new trial, 16 A.L.R. 1158; 107 A.L.R. 603.

Motion for new trial as suspension or stay of execution or judgment, 121 A.L.R. 686.

Right of trial court to grant new trial as affected by appellate proceedings, 139 A.L.R. 340.

Necessity that trial court give parties notice and opportunity to be heard before ordering new trial on its own motion, 23 A.L.R.2d 852.

What constitutes final judgment within provision or rule limiting application for new trial to specified period thereafter, 34 A.L.R.2d 1181.

New trial in criminal case because of newly discovered evidence as to sanity of prosecution witness, 49 A.L.R.2d 1247.

Successive actions as within statutory provision fixing time within which new action may be commenced after nonsuit or judgment not on merits, 54 A.L.R.2d 1229.

Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432.

Time for filing motion for new trial based on jury conduct occurring before, but discovered after, verdict, 97 A.L.R.2d 788.

Amendment, after expiration of time for filing motion for new trial in civil case, of motion made in due time, 69 A.L.R.3d 845.

Amendment, after expiration of time for filing motion for new trial in criminal case, of motion made in due time, 69 A.L.R.3d 933.

Appeal by state of order granting new trial in criminal case, 95 A.L.R.3d 596.

Court reporter's death or disability prior to transcribing notes as grounds for reversal or new trial, 57 A.L.R.4th 1049.

Prosecutor's appeal in criminal case to racial, national, or religious prejudice as ground for mistrial, new trial, reversal, or vacation of sentence - modern cases, 70 A.L.R.4th 664.

Propriety of limiting to issue of damages alone new trial granted on ground of inadequacy of damages - modern cases, 5 A.L.R.5th 875.

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