How to Defeat the State’s New Pre-trial Appellate Rights

HB 349 has been the subject of much discussion for its sentencing innovations. However, nestled within it are some significant changes to the appellate code. This post will familiarize you with the appellate provisions of HB 349 and provide some tips to get around them.

Pre-HB 349

Under the soon to be old law, any party in a criminal case who wants to appeal must do so by following a two-step process:

1. Get a certificate of immediate review from the trial court within 10 days of the ruling that the party wants to appeal.
2. File a discretionary appeal application with the appellate court.

New Law

Under Section 1 of HB 349, O.C.G.A. Section 5–7–1 (5) has been created, which provides that:

An appeal may be taken by and on behalf of the State of Georgia from the superior courts, state courts, and juvenile courts and from such other courts from which a direct appeal is authorized to the Court of Appeals and the Supreme Court of Georgia in criminal cases and adjudication of delinquency cases in the following instances
…

From an Order, decision, or judgment excluding any other evidence to be used by the state at trial or 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 out in jeopardy, whichever occurs first if:
(A) 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
(B) 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

In plain English, the new law provides

• the State may directly appeal a pre-trial order excluding its evidence or on any motion filed at least 30 days before trial
• if it is ruled on before jeopardy attaches or the jury is impaneled
• if the state files a notice of appeal at least 2 days before trial, and
• the State certifies that the appeal is not for purpose of delay and is material

Ways Around It

1. Avoid filing motions in limine when you can. There are certain motions that must be filed within 10 days of arraignment. The rest may be filed at any time, even during trial. Where possible, hold those motions until after the jury is impaneled. As soon as the jury is sworn, file your motions and ask for a hearing.
2. Defer rulings, when you can. If the hearing on your motion to suppress or on the State’s motion appears to be going well, ask the court to defer its ruling until jeopardy attaches.
3. Get a “tip” instead of a ruling. Then request that the Court not formally enter its ruling until it’s too late for the State to appeal. At the conclusion of the motions hearing, move to hold the ruling until the matter is proceeding is beyond the reach of the new law. Ask the Court, not to rule, but whether the Court is inclined to rule your way.

Conclusion

The new appellate provisions in HB 349 are about as hole-laden as Swiss cheese. Unfortunately, they encourage a sense of trial by ambush as important matters are deferred until juries are sworn or jeopardy has attached. It also encourages litigation by nods, winks, and guesses in an effort to fix something that was never broken.

Alas, here are a few ways around the new law. Let me know if you have other ideas.