Serving a sentence before an appeal is completed?
Posted by Ben Sessions | | Uncategorized
In Georgia, a criminal defendant that is sentenced to serve time in jail or prison will begin serving their time in custody immediately after conviction unless a supersedeas bond is made. A supersedeas bond stays the sentence until the motion for new trial or appeal is complete. In Georgia criminal cases, supersedeas bonds are governed by OCGA 5-6-45.
A SUPERSEDEAS BOND MAY PREVENT YOU FROM SERVING A SENTENCE BEFORE AN APPEAL IS COMPLETED
OCGA 5-6-45 provides the general structure for the issuance of supersedeas bonds in Georgia criminal cases:
(a) In all criminal cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to bail. If the sentence is bailable, the defendant may give bond in an amount prescribed by the presiding judge, with security approved by the clerk, conditioned upon the defendant’s personal appearance to abide the final judgment or sentence of the court. If the judgment or sentence is or includes a fine which is unconditionally required to be paid, and is not required to be paid over a period of probation, nor as a condition of a suspended or probated sentence, nor as an alternative sentence, the bond may also be conditioned upon payment of the fine at the time the defendant appears to abide the final judgment or sentence.
(b) If the defendant is a corporation which has been convicted as provided in Code Section 17-7-92, the presiding judge, on the motion of the defendant, prosecuting attorney, or on its own motion, may order that supersedeas be conditioned upon the posting of a supersedeas bond. Said order may be entered either before or after the filing of a motion for a new trial or notice of appeal. The bond shall be in an amount prescribed by the presiding judge, with security approved by the clerk, conditioned upon the defendant’s appearance, by and through a corporate officer, agent, or attorney at law, to satisfy the judgment, together with all costs and interest. If the corporation fails to make the bond as ordered, the prosecuting attorney or other proper officer may use any and all lawful process and procedures available to enforce and collect the judgment. Should final judgment be entered in favor of the defendant, the presiding judge shall order a refund of all amounts collected in satisfaction of the judgment. The State of Georgia, and its political subdivisions, district attorney, solicitor-general, sheriff, marshal, all other proper officers, and all agents and employees of the aforementioned persons shall be immune from all civil liability for acts and attempts to enforce and collect a judgment under this subsection.
OCGA § 17-6-1 specifies which offenses are eligible for an appeal bond:
No appeal bond shall be granted to any person who has been convicted of murder, rape, aggravated sodomy, armed robbery, home invasion in any degree, aggravated child molestation, child molestation, kidnapping, trafficking in cocaine or marijuana, aggravated stalking, or aircraft hijacking and who has been sentenced to serve a period of incarceration of five years or more. The granting of an appeal bond to a person who has been convicted of any other felony offense or of any misdemeanor offense involving an act of family violence as defined in Code Section 19-13-1, or of any offense delineated as a high and aggravated misdemeanor or of any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court. Appeal bonds shall terminate when the right of appeal terminates, and such bonds shall not be effective as to any petition or application for writ of certiorari unless the court in which the petition or application is filed so specifies.
It is a rare case in which a supersedeas bond is granted following a felony criminal conviction in Georgia. Also, in the event that supersedeas bond is a possibility after a felony conviction, the decision as to whether one should be sought is not an easy one. Let’s presume that you or someone you care about has served a significant portion (let’s say more than a year) of a felony sentence in Georgia and it becomes clear that the trial judge might be inclined to grant a supersedeas bond, it’s not an easy decision about whether to actually post the bond.
If you are seeking a qualified attorney for post-conviction relief in Georgia, contact The Sessions Law Firm. We look forward to speaking with you.
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