Make sure your lawyer preserves your right to appeal

Brandon Bullard
April 8, 2022

One all-too-common problem in Georgia criminal practice is that trial lawyers neglect to file the documents necessary to preserve their client’s appellate rights after losing a trial. Once a Georgia trial court sentences you, your appellate clock starts ticking. By law, you have 30 days to file a notice of appeal. And as the Supreme Court of Georgia recently made clear, if you do not file an appeal within that 30-day window, you lose your right to an appeal. The only way to get it back is through a petition for a writ of habeas corpus—which is always complicated and which can be costly. You might also move for a new trial or in arrest of judgment, which would set off the time for filing an appeal, but each of those is subject to time limits of its own. Bottom line: If you want to challenge your conviction and sentence on appeal, you have to file something. Well, not you. Your lawyer. If you have a lawyer, the rule in Georgia is that you cannot file anything on your own. That includes motions for new trial and notices of appeal. Legally, courts have to ignore them.

Here’s the problem. Too many lawyers believe that they’re done with your case after sentencing, so they assume that it’s your responsibility to file your appellate documents or to hire a new lawyer. Those lawyers are wrong. The Supreme Court of Georgia says that your trial lawyer continues to represent you at least until the time for taking an appeal has run. The only way for your trial lawyer to get off of your case is for the trial court to enter an order letting them out or for another lawyer to substitute themselves in. Short of that, your trial lawyer has an ethical duty to file whatever is necessary to preserve your appellate rights, even if you’re going to hire a different lawyer later.

But wait, there’s more. I’ve heard from several people lately that their lawyers refused to file anything to preserve their appellate rights unless they signed a new retainer agreement and paid a second fee. Those clients, or their families, wanted to hire a different lawyer, someone who specialized in appellate work. But they didn’t think that they could find and hire a new lawyer before the time for filing ran out.

This is the sort of thing that gets my ire up. No lawyer can win every trial. And when a trial lawyer loses, it’s that lawyer’s responsibility to protect the client’s interests. Instead, they either abandon the case when the client is most legally vulnerable or, worse, they trap their clients into retaining them again.

  • You have the right to hire any lawyer who will take your case;
  • You should be able to trust that your lawyer will protect your rights;
  • You deserve the opportunity to make a fully informed decision about what lawyer to hire; and
  • You should not have to worry that your lawyer will unethically extort a second fee before filing the basic documents to start an appeal.

If you’re facing a criminal trial in Georgia, you have options:

  1. Talk to your trial lawyer in advance about their responsibility to preserve your right to an appeal if you’re convicted;
  2. If your lawyer won’t preserve your right to an appeal without charging you an additional fee, decide in advance whether you want to pay or if you want to bring in a specialist for the appeal;
  3. If you don’t know whom you want to handle your appeal and your trial lawyer won’t preserve your rights, make sure that your trial lawyer withdraws from your case quickly so you can file your own appeal; or
  4. Best of all, consult with an appellate lawyer before you go to trial so everyone is clear who will file if you’re convicted.

In fact, bringing in an appellate lawyer early in the process can increase the chances that you won’t need an appeal or that, if you do, the appeal will be winnable. An appellate lawyer’s job at trial is to file motions and help argue the objections that will help get the law on your side of the case. If the appellate lawyer wins those motions and objections, the jury is less likely to return a guilty verdict. If the appellate lawyer loses those motions and objections, the appellate court will be more likely to reverse your convictions because the trial court made a mistake. Either way, an appellate lawyer is a good investment if you’re taking your case seriously. And you can at least be confident that your rights will be protected.

Hire a Georgia Appeals Lawyer Today

Hiring the right lawyer is crucial if you have decided to file an appeal. At Bullard Law Firm, we have extensive experience representing individuals on appeal. Call us today at (404) 954-0598 or fill out our online contact form to schedule a consultation with our law firm.