2021 Georgia Code
Title 5 - Appeal and Error
Chapter 7 - Appeal or Certiorari by State in Criminal Cases
§ 5-7-1. Orders, Decisions, or Judgments Appealable; Defendant's Right to Cross Appeal

1. An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts, and juvenile courts and such other courts from which a direct appeal is authorized to the Court of Appeals or the Supreme Court in criminal cases and adjudication of delinquency cases in the following instances:
   1. From an order, decision, or judgment setting aside or dismissing any indictment, accusation, or a petition alleging that a child has committed a delinquent act, or any count thereof;
   2. From an order, decision, or judgment arresting judgment of conviction or adjudication of delinquency upon legal grounds;
   3. From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy;
   4. From an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first;
   5. From an order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if:
      1. Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and
      2. The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding;
   6. From an order, decision, or judgment of a court where the court does not have jurisdiction or the order is otherwise void under the Constitution or laws of this state;
   7. From an order, decision, or judgment of a superior court transferring a case to the juvenile court pursuant to Code Section 15-11-560 or subsection (b) of Code Section 17-7-50.1;
   8. From an order, decision, or judgment of a court granting a motion for new trial or an extraordinary motion for new trial;
   9. From an order, decision, or judgment denying a motion by the state to recuse or disqualify a judge made and ruled upon prior to the defendant being put in jeopardy; or
   10. From an order, decision, or judgment issued pursuant to subsection (c) of Code Section 17-10-6.2.
2. In any instance in which any appeal is taken by and on behalf of the State of Georgia in a criminal case, the defendant shall have the right to cross appeal. Such cross appeal shall be subject to the same rules of practice and procedure as provided for in civil cases under Code Section 5-6-38.
3. In any instance in which the defendant in a criminal case applies for and is granted an interlocutory appeal as provided in Code Section 5-6-34 or an appeal is taken pursuant to Code Section 17-10-35.1, the state shall have the right to cross appeal on any matter ruled on prior to the impaneling of a jury or the defendant being put in jeopardy. Such cross appeal shall be subject to the same rules of practice and procedure as provided for in civil cases under Code Section 5-6-38. The state shall not be required to obtain a certificate of immediate review for such cross appeal.

(Ga. L. 1973, p. 297, § 1; Ga. L. 1984, p. 22, § 5; Ga. L. 1994, p. 311, § 1; Ga. L. 1994, p. 1012, § 28; Ga. L. 2000, p. 20, § 3; Ga. L. 2000, p. 862, § 2; Ga. L. 2003, p. 247, § 2; Ga. L. 2005, p. 20, § 3/HB 170; Ga. L. 2006, p. 379, § 3/HB 1059; Ga. L. 2012, p. 899, § 1-1/HB 1176; Ga. L. 2013, p. 141, § 5/HB 79; Ga. L. 2013, p. 222, § 1/HB 349; Ga. L. 2013, p. 294, § 4-2/HB 242; Ga. L. 2016, p. 883, § 3-13/HB 927.)

The 2012 amendment, effective July 1, 2012, deleted "superior" preceding "court" in paragraph (a)(7). See the editor's note for applicability.

The 2013 amendments. The first 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, substituted "the Court of Appeals and the Supreme Court" for "the Court of Appeals of Georgia and the Supreme Court of Georgia" in the introductory language of subsection (a). The second 2013 amendment, effective July 1, 2013, deleted "City Court of Atlanta," following "state courts," in the introductory paragraph of subsection (a); in paragraph (a)(1), inserted "a" preceding "petition" and inserted a comma following "act"; added paragraph (a)(5); redesignated former paragraphs (a)(5) through (a)(9) as present paragraphs (a)(6) through (a)(10), respectively; added "or subsection (b) of Code Section 17-7-50.1" at the end of paragraph (a)(7); and added subsection (c). See editor's note for applicability. The third 2013 amendment, effective January 1, 2014, substituted "Code Section 15-11-560" for "subparagraph (b)(2)(B) of Code Section 15-11-28" in former paragraph (a)(6) (now paragraph (a)(7)). See editor's note for applicability.

The 2016 amendment, effective January 1, 2017, substituted "Court of Appeals or the Supreme Court" for "Court of Appeals and the Supreme Court" in subsection (a). See Editor's notes for applicability.

- Payment by state of bill of costs in appeals or applications filed on behalf of state by a district attorney, § 15-18-13.

Unified appeal, Uniform Superior Court Rules, Rule 34.

- Pursuant to Code Section 28-9-5, in 2013, in subsection (c), in the first sentence, "case" was substituted for "cases" and "in" was inserted preceding "Code Section 5-6-34" near the beginning.

- Ga. L. 1994, p. 1012, § 1, not codified by the General Assembly, provides that the Act shall be known and may be cited as the "School Safety and Juvenile Justice Reform Act of 1994."

Ga. L. 1994, p. 1012, § 2, not codified by the General Assembly, sets forth legislative findings and determinations for the "School Safety and Juvenile Justice Reform Act of 1994."

Ga. L. 1994, p. 1012, § 29, not codified by the General Assembly, provides: "In the event any section, subsection, sentence, clause, or phrase of this Act shall be declared or adjudged invalid or unconstitutional, such adjudication shall in no manner affect the other sections, subsections, sentences, clauses, or phrases of this Act, which shall remain of full force and effect as if the section, subsection, sentence, clause, or phrase so declared or adjudged invalid or unconstitutional were not originally a part hereof. The General Assembly declares that it would have passed the remaining parts of this Act if it had known that such part or parts hereof would be declared or adjudged invalid or unconstitutional."

Ga. L. 2005, p. 20, § 1/HB 170, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Criminal Justice Act of 2005.'"

Ga. L. 2005, p. 20, § 17/HB 170, not codified by the General Assembly, provides that this Act shall apply to all trials which commence on or after July 1, 2005.

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides, in part, that the amendment to this Code section shall apply to offenses which occur on or after July 1, 2012. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act.

Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."

Ga. L. 2013, p. 294, § 5-1/HB 242, not codified by the General Assembly, provides that: "This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1, 2014, shall be governed by the statute in effect at the time of such offense and shall be considered a prior adjudication for the purpose of imposing a disposition that provides for a different penalty for subsequent adjudications, of whatever class, pursuant to this Act. The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions."

Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

- For survey of cases dealing with criminal law and criminal procedure from June 1, 1977 through May 1978, see 30 Mercer L. Rev. 27 (1978). For article surveying appellate practice and procedure, see 34 Mercer L. Rev. 3 (1982). For annual survey of appellate practice and procedure, see 38 Mercer L. Rev. 47 (1986). For annual survey of appellate practice and procedure, see 43 Mercer L. Rev. 73 (1991). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007). For survey article on criminal law, see 60 Mercer L. Rev. 85 (2008). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For annual survey on criminal law, see 65 Mercer L. Rev. 79 (2013). For annual survey on criminal law, see 66 Mercer L. Rev. 37 (2014). For article on the 2016 amendment of this Code section, see 33 Georgia St. U.L. Rev. 205 (2016). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 119 (2003).

ANALYSIS

• General Consideration
• Judgments Dismissing Indictment or Accusations
• Judgments Sustaining Pleas in Bar
• Double Jeopardy
• Orders Suppressing Evidence
• Application Generally

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Apellate Review, § 349 et seq. 14 Am. Jur. 2d, Certiorari, § 107 et seq.

- 24 C.J.S., Criminal Law, § 2342 et seq.

- Adequacy of remedy by appeal in criminal cases to preclude prohibition sought on the ground of lack or loss of jurisdiction, 141 A.L.R. 1262.

Evidence erroneously stricken out as proper for consideration by appellate court to sustain finding or verdict, 152 A.L.R. 371.

Constitutionality of statute permitting appeal by state in criminal case, 157 A.L.R. 1065.

Appealability of order pertaining to pretrial examination, discovery, interrogatories, production of books and papers, or the like, 37 A.L.R.2d 586.

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