Tag Archive for: Certiorari

It’s a Gray Day in Georgia for Motions to Modify Sentence

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There is an important new case that changes the law concerning motions to modify sentence in Georgia. In Gray v. State, a case published on August 26, 2019, the Court of Appeals held that trial courts lose jurisdiction, under O.C.G.A. Section 17-10-1(f), to modify criminal sentences following either 120 days after the remittitur where there was an appeal or one year after sentencing even if the motion to modify is filed sooner than those dates. I will provide some procedural history followed by analysis.

The defendant in Gray was sentenced by Judge A. He timely filed a motion to modify sentence, which was heard eleven months later by Judge B. Judge B granted the modification. Judge A, the original sentencing judge, found out what happened and, sua sponte, entered an order vacating the sentence.

Gray appealed, arguing that the order vacating was void. The Court affirmed, reasoning that the trial court lost jurisdiction to modify its sentence after the expiration of a year and after the end of the term of court in which the sentence was imposed. The Court ends the opinion pointing out nine cases allowing courts to modify sentence where the motions were filed within the statutory time and distinguishing (but not overruling) those cases.

Gray has petitioned to the Georgia Supreme Court for certiorari. The opinion in Gray raises a host of policy concerns. What exactly is the status of the line of cases “distinguished” in the opinion? Also, can a judge simply run out the clock by delaying a ruling on the case? What happens if the case is heard and the time runs out while it is under advisement? Finally, counsel will often advise clients to wait a while before filing motions to modify to let some time pass after sentencing, to allow for good conduct while in prison, for participation in programs, and other post-sentencing mitigation facts to develop. The law, as interpreted in Gray, places defendants in a position to file so soon that there is no opportunity to develop new mitigating evidence. Indeed, the modification statute has traditionally provided an incentive for good conduct after sentencing. Defendants who move to modify shortly after sentencing will be open to accusations of buyer’s remorse or the failure truly to accept responsibility.

This case presents excellent issues for certiorari and may prompt discussion at the Georgia legislature in the upcoming session.

One-Liner of the Seminar Regarding the Goals of a Cert. Petition.

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Last weekend, I chaired a two-day seminar on appellate and habeas practice. GACDL hosted the seminar at my alma mater, the Georgia State University College of Law. I’m jealous of their new building. We didn’t exactly have it tough at the old Urban Life Building, but the new kids are lucky to be in such a cool space. As for the seminar, I took good notes and plan to steal from our speakers for the next several posts.

The theft starts right now with this incredible one-liner from Justice Nels Peterson from the Supreme Court of Georgia. Here’s what he said about the difference between an appeal and a cert petition:

“The appeal is for your client. The cert. petition is for the public.” To quote Rule 40, “a petition for the writ will be granted only in cases of great concern, gravity, or importance to the public.”

This pithy statement has been the subject of many a discussion with lawyers who have reached out for advice on how to do a cert. petition. It is not much of a stretch to say to lawyers that the Court doesn’t particularly care about their client. When it comes to cert, the law is all that matters. The pitch on cert. is to the potential precedent not the client’s sense of injustice.

 

E-filing in the Georgia Court of Appeals versus the Supreme Court

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I have been E-filing in the Georgia Court of Appeals and the Georgia Supreme Court since both courts started offering it. I can’t tell you enough about how great it is to be able to upload a pdf rather than do all of the other archaic stuff that is involved in paper filing a brief. I’m still pretty amazed that so much of the practice of law involves printing out stuff on bond paper, making a blue million copies, physically taking it to the courthouse to get a stamp on it, then transmitting physical copies of the paper to people. I like Atticus Finch, but I’m not all about filing things the way he did when he filed motions in limine in Mississippi v. Tom Robinson.

In fact, there is one Georgia courthouse that is so anti-technology that even lawyers can’t bring laptops or smartphones into the courthouse. They have big ugly yellow signs at all the entrances warning you not to bring “that kinna stuff in heah.” When I leave there, I always think that the world is going to turn black and white, and I start craving a malted at the drug store soda counter.

So, I am really not whining about the fact that the Supreme Court does it better than the Court of Appeals. I’m just glad that they’re doing it at all.

So, a few weeks in for the Supreme Court and a few monhs in for the Court of Appeals is a good time to compare the two systems.

  • Instructions — The Supreme Court gets the nod here. Their website includes instructional videos. Granted, they are all in a NOAA weather radio voice. Still, very informative. Over at the Court of Appeals, there aren’t any instructional videos. Sometimes you find out you messed up when you get an email telling you that you messed up.
  • Range of Stuff You Can File — Again, the Supreme Court gets the nod. You can file things in the Supreme Court that do not have a pre-existing case number. For instance, you can file an interlocutory application or a petition for certiorari. In the Court of Appeals, interlocutory applications still have to be filed in the way they were in the 50s
  • Integration into Your Practice — Docketing notices and the like are all still snail-mailed to you from the Court of Appeals. In the Supreme Court, once you sign up, you start living in the e-filing world. Docketing notices, orders, notices that opposing counsel has filed something, etc. will start coming to you by email. The Supreme Court has clearly gone all-in on the electronic thing
  • Filing Fees — Big nod to the Supreme Court. You can mail in your check, thereby bypassing the whole “convenience charge” deal that you get over in the Court of Appeals. Ironically, this part of the Surpeme Court is still old school. But it’s old school in a way that saves you money.

Not complaining about either one. It’s great that e-filing is an option. Just interesting to point out that the Supreme Court wins the e-filing smackdown.

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