09 LC 29
3658
House
Bill 600
By:
Representative Ralston of the
7th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 5 and Chapter 18 of Title 15 of the Official Code of Georgia
Annotated, relating to appeal and error and prosecuting attorneys, respectively,
so as to change provisions relating to the state's right to appeal in criminal
cases; to change the standard of review for appeals by the state; to authorize
the state to have the right of direct appeal in certain cases rather than having
to seek certification; to provide the state with the right to appeal orders
granting a defendant a bench trial over the objection of the state; to provide
the state with the right to appeal orders declaring any statute, law, uniform
rule of court, or treaty of this state or of the United States to be
unconstitutional; to provide for direct appeal when a district attorney or
solicitor is disqualified from prosecuting a case; to remove references to the
former City Court of Atlanta; to provide the state with the right to
cross-appeal; to provide for appeals to the superior court by the prosecuting
entity in certain criminal and ordinance cases tried in municipal, magistrate,
recorders, and probate courts; to provide for an exception for certain appeals;
to amend Code Section 36-32-1 of the Official Code of Georgia Annotated,
relating to establishment of municipal courts, so as to correct a
cross-reference; to provide for related matters; to provide for an effective
date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
5 of the Official Code of Georgia Annotated, relating to appeal and error, is
amended by revising subsection (a) of Code Section 5-5-1, relating to the power
of probate, superior, state, juvenile, and City of Atlanta courts, as
follows:
"(a)
The superior, state, and juvenile courts
and the
City Court of Atlanta shall have power to
correct errors and grant new trials in cases or collateral issues in any of the
respective courts in such manner and under such rules as they may establish
according to law and the usages and customs of courts."
SECTION
2.
Said
title is further amended by revising Code Section 5-5-50, relating to the
standard for review by an appellate court of first grant of new to trial, as
follows:
"5-5-50.
(a)
The first grant of a new trial
in a civil
action shall not be disturbed by an
appellate court unless the appellant shows that the judge abused his
or
her discretion in granting it and that the
law and facts require the verdict notwithstanding the judgment of the presiding
judge.
(b)
The first grant of a new trial in a criminal action shall not be disturbed by an
appellate court unless the appellant shows plain error in granting it and that
the law and facts require the verdict notwithstanding the judgment of the
presiding judge."
SECTION
3.
Said
title is further amended by revising Code Section 5-7-1, relating to orders,
decisions, or judgments appealable by the state in criminal cases, as
follows:
"5-7-1.
(a)
An appeal may be taken by and on behalf of the State of Georgia from the
superior courts, state courts,
City Court
of Atlanta, and juvenile courts and such
other courts from which a direct appeal is authorized to the Court of Appeals of
Georgia and the Supreme Court of Georgia 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 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
including but
not limited to, excluding
evidence
of the results of any test for alcohol or
drugs or
compelling the return of seized property
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 of a court where the court does not have
jurisdiction or the order is otherwise void under the Constitution or laws of
this state;
(6)
From an order, decision, or judgment of a superior court transferring a case to
the juvenile court pursuant to subparagraph (b)(2)(B) of Code Section
15-11-28;
(7)
From an order, decision, or judgment
of a
superior court granting a motion for new
trial or an extraordinary motion for new trial;
(8)
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
(9)
From an order, decision, or judgment issued pursuant to subsection (c) of Code
Section
17-10-6.2;
(10)
From an order, decision, or judgment in the superior or state court granting the
defendant a bench trial over the objection of the state;
(11)
From an order, decision, or judgment made and ruled upon prior to the defendant
being put in jeopardy declaring any statute, law, uniform rule of court, or
treaty of this state or of the United States to be unconstitutional;
or
(12)
From an order disqualifying a district attorney's office as provided in
subsection (g) of Code Section 15-18-5 or an order disqualifying a
solictior-general's office as provided in subsection (d) of Code Section
15-18-65.
(b)
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.
(c)
Notwithstanding the provisions of subsection (a) of this Code section, if the
defendant obtains a certificate of immediate review from any order, decision, or
judgment prior to the impaneling of a jury or the defendant being put in
jeopardy, the state may file a cross appeal by filing notice thereof within 15
days from the service of the notice of appeal; and the state may present for
adjudication on the cross appeal all errors or rulings adversely affecting the
state. Such cross appeal shall be subject to the same rules of practice and
procedure as provided for in civil cases pursuant to Code Section
5-6-38."
SECTION
4.
Said
title is further amended by revising Code Section 5-7-2, relating to
certification required for immediate review of nonfinal orders, decisions, or
judgments, as follows:
"5-7-2.
(a)
Except as provided in subsection (b) of this Code
section
Other than
from an order, decision, or judgment sustaining a motion to suppress evidence
illegally seized, in any appeal under this
chapter where the order, decision, or judgment is not final, it shall be
necessary that the trial judge certify within ten days of entry thereof that the
order, decision, or judgment is of such importance to the case that an immediate
review should be had.
(b)
A certificate of immediate review shall not be required from an:
(1)
Order, decision, or judgment suppressing or excluding evidence which excludes
the results of any test for alcohol or drugs or compels the return of seized
property; provided that the prosecuting attorney certifies to the trial court
that the appeal is not taken for the purpose of delay and that the evidence is
substantial proof of a fact material in the proceedings; or
(2)
An order, decision, or judgment described in paragraph (10) or (11) of
subsection (a) of Code Section 5-7-1.
(c)
For purposes of this Code section, the granting of a motion for new trial or an
extraordinary motion for new trial shall be considered a final
order."
SECTION
5.
Said
title is further amended by revising Code Section 5-7-3, relating to right of
certiorari, as follows:
"5-7-3.
A
proceeding by certiorari may be taken by and on behalf of the State of Georgia
from one court to another court of this state, where the right of certiorari is
provided as a procedure for appealing a
judgment,
in the specified situations set forth in Code Sections 5-7-1 and
5-7-2."
SECTION
6.
Said
title is further amended by adding two new Code sections to read as
follows:
"5-7-6.
The
prosecuting entity which has a right to appeal to the superior court pursuant to
Chapter 4 of this title shall have the same right to appeal to a superior court
as the state has as provided in Code Section 5-7-1, in cases
involving:
(1)
Violations of the ordinances of a political subdivision or authorities of this
state which are punishable by a fine or imprisonment; and
(2)
Misdemeanors which a municipal, magistrate, recorders, or probate court is
authorized to conduct trials and impose sentences.
5-7-7.
(a)
The provisions of this chapter shall be liberally construed to effectuate its
purposes.
(b)
The provisions of this chapter shall not apply to civil actions brought by the
state."
SECTION
7.
Chapter
18 of Title 15 of the Official Code of Georgia Annotated, relating to
prosecuting attorneys, is amended by revising subsection (g) of Code Section
15-18-5, relating to appointment of substitute for absent or disqualified
district attorney, as follows:
"(g)
Any order entered by a court disqualifying a district attorney's office from
engaging in the prosecution shall specify the legal basis for such order. The
district attorney may, on behalf of the state and prior to the defendant in a
criminal case being put in jeopardy,
apply for a
certificate of immediate review
directly
appeal as provided in Code Section
5-7-2
5-7-1,
and such order shall be subject to appellate review as provided in Chapter 7 of
Title 5."
SECTION
8.
Said
chapter is further amended by revising subsection (d) of Code Section 15-18-65,
relating to a solicitor's disqualification from interest or relationship, as
follows:
"(d)
Any order entered by a court disqualifying a solicitor-general's office from
engaging in the prosecution shall specify the legal basis of such order. The
solicitor-general may, on behalf of the state and prior to the defendant in a
criminal case being put in jeopardy,
apply for a
certificate of immediate review
directly
appeal as provided in Code Section
5-7-2
5-7-1,
and such order shall be subject to appellate review as provided by Chapter 7 of
Title 5."
SECTION
9.
Code
Section 36-32-1 of the Official Code of Georgia Annotated, relating to
establishment of municipal courts, is amended by revising subsection (a) as
follows:
"(a)
Each municipal corporation of this state shall, unless otherwise provided in the
local law relating to a particular municipal corporation, be authorized to
establish and maintain a municipal court having jurisdiction over the violation
of municipal ordinances and over such other matters as are by general law made
subject to the jurisdiction of municipal courts. Any such court shall be styled
as a municipal court. Any reference in this Code or in any local law to a
corporate court, police court, recorder's court, mayor's court, or any such
court known by any other name which has jurisdiction over the violation of
municipal offenses shall be deemed to mean a municipal court. Except in this
Code section
and in the
laws relating to the City Court of
Atlanta, the terms 'corporate court,'
'corporate courts,' 'police court,' 'police courts,' 'recorder's court,'
'recorders' courts,' 'mayor's court,' and 'mayors' courts,' when such terms
refer to a court of a municipal corporation, are stricken wherever they appear
in any general or local law of this state and the term 'municipal court' or
'municipal courts,' whichever is appropriate, is inserted in lieu thereof. The
change in the name of any such court as provided for by Article VI, Section X,
Paragraph I of the Constitution of the State of Georgia and by this Code section
shall not affect the validity of any action or prosecution in such
court."
SECTION
10.
This
Act shall become effective upon its approval by the Governor or upon its
becoming law without such approval.
SECTION
11.
All
laws and parts of laws in conflict with this Act are repealed.