green
Positive treatment
42.3 score
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011
2018
2026
Top citers, strongest first. 30 distinct citers.
discussed
Cited as authority (rule)
MITCHELL v. THE STATE (Two Cases)
(2×)
Alvelo v. State, 288 Ga. 437, 438 (2011).
discussed
Cited as authority (rule)
Bridges v. State
(2×)
However, the decision whether to grant a new trial under OCGA §§ 5-5-20 or 5-5-21 is committed solely to the discretion of the trial court, and “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Alvelo v. State, 288 Ga. 437, 438 (1) (704 SE2d 4 787) (2011) (citations and punctuation omitted).
examined
Cited as authority (rule)
Miller v. State
(3×)
also: Cited "see, e.g."
Miller relies on Alvelo v. State, 288 Ga. 437, 438-39 (1) ( 704 SE2d 787 ) (2011), for the proposition that, when assessing the weight of the evidence in Miller’s motion for a new trial, the trial court was required to assess the credibility of witnesses.
discussed
Cited as authority (rule)
Monica Atkins v. State
Branch, J., concurs. 5 See also Choisnet v. State 292 Ga. 860, 861-62 ( 742 SE2d 476 ) (2013) (judgment vacated and case remanded where trial court reviewed evidence in light most favorable to verdict and failed to consider witness credibility); Manuel v. State, 289 Ga. 383, 386 (2) ( 711 SE2d 676 ) (2001) (judgment vacated and remanded where trial court “personally disagreed with the jury’s verdict” yet found the evidence was sufficient to support the jury’s verdict); Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011) (vacating order denying motion for new trial and remandi…
discussed
Cited as authority (rule)
Atkins v. State
See also Choisnet v. State, 292 Ga. 860, 861-862 ( 742 SE2d 476 ) (2013) (judgment vacated and case remanded where trial court reviewed evidence in light most favorable to verdict and failed to consider witness credibility); Manuel v. State, 289 Ga. 383, 386 (2) ( 711 SE2d 676 ) (2011) (judgment vacated and case remanded where trial court “personally disagreed with the jury’s verdict” yet found the evidence was sufficient to support the jury’s verdict); Alvelo v. State, 288 Ga. 437, 438-439 (1) ( 704 SE2d 787 ) (2011) (vacating order denying motion for new trial and remanding case for …
cited
Cited as authority (rule)
Butts v. State
See Choisnet v. State, 292 Ga. 860, 861 ( 742 SE2d 476 ) (2013); Alvelo v. State, 288 Ga. 437, 439 ( 704 SE2d 787 ) (2011).
discussed
Cited as authority (rule)
State v. Reid
The court’s discretion “should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” (Citation and punctuation omitted.) Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011).
discussed
Cited as authority (rule)
State v. Patricia Reid
The court’s discretion “should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” (Citation and punctuation omitted.) Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011).
discussed
Cited as authority (rule)
Allen v. State
(2×)
also: Cited "see, e.g."
Although the discretion of a trial judge to award a new trial on the general grounds is not boundless — it is, after all, a discretion that “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict,” Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011) (citations and punctuation omitted) — it nevertheless is, generally speaking, a substantial discretion.
discussed
Cited as authority (rule)
Allen v. State
(2×)
also: Cited "see, e.g."
Although the discretion of a trial judge to award a new trial on the general grounds is not boundless — it is, after all, a discretion that “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict,” Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011) (citations and punctuation favor of the finding. 4 omitted) — it nevertheless is, generally speaking, a substantial discretion.
discussed
Cited as authority (rule)
Wiggins v. the State
(Citations and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) ( 753 SE2d 115 ) (2013); see also Walker v. State, 292 Ga. 262 , 264 *211 (2) ( 737 SE2d 311 ) (2013); Alvelo v. State, 288 Ga. 437, 439 (1) ( 704 SE2d 787 ) (2011) (“Only the trial court is authorized by law to conduct... an assessment” of the witnesses’ credibility in reviewing a motion for new trial brought pursuant to OCGA § 5-5-21.).
discussed
Cited as authority (rule)
Rebecca Wiggins v. State
(Citations and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) ( 753 SE2d 115 ) (2013); see also Walker v. State, 292 Ga. 262, 264 (2) ( 737 SE2d 311 ) (2013); Alvelo v. State, 288 Ga. 437, 439 (1) ( 704 SE2d 787 ) (2011) (“Only the trial court is authorized by law to conduct . . . an assessment” of the witnesses’ credibility in reviewing a motion for new trial brought pursuant to OCGA § 5-5-21.) The trial itself was conducted by the Honorable G.
discussed
Cited as authority (rule)
Batten v. State
The trial court’s discretion in this regard “should be exercised with caution, and the power to grant a new trial on this should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Alvelo v. State, 288 Ga. 437, 438 ( 704 SE2d 787 ) (2011).
discussed
Cited as authority (rule)
Batten v. State
The trial court’s discretion in this regard “should be exercised with *444 caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” Alvelo v. State, 288 Ga. 437, 438 ( 704 SE2d 787 ) (2011).
discussed
Cited as authority (rule)
Winston Strapp v. State
(2×)
Our Supreme Court also noted in White that [a]lthough the discretion of a trial judge to award a new trial on the general grounds is not boundless – it is, after all, a discretion that “should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict,” Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011) – it nevertheless is, generally speaking, a substantial discretion.
discussed
Cited as authority (rule)
Strapp v. State
(2×)
Our Supreme Court also noted in White that [although the discretion of a trial judge to award a new trial on the general grounds is not boundless — it is, after all, a discretion that “should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict,” Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011) — it nevertheless is, generally speaking, a substantial discretion.
cited
Cited as authority (rule)
Vernon S. Sellers v. State
Cf. White v. State, 293 Ga. at 524-525; Choisnet v. State, 292 Ga. 860, 862 ( 742 SE2d 476 ) (2013); Alvelo v. State, 288 Ga. 437, 439 (1) ( 704 SE2d 787 ) (2011). 12 2.
cited
Cited as authority (rule)
Sellers v. State
Cf. White, 293 Ga. at 524-525 (2); Choisnet v. State, 292 Ga. 860, 862 ( 742 SE2d 476 ) (2013); Alvelo v. State, 288 Ga. 437, 439 (1) ( 704 SE2d 787 ) (2011). 2.
examined
Cited as authority (rule)
White v. State
(3×)
Although the discretion of a trial judge to award a new trial on the general grounds is not boundless •— it is, after all, a discretion that “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict,” Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011) (citations and punctuation omitted) — it nevertheless is, generally speaking, a substantial discretion. 4 See State v. Harris, 292 Ga. 92, 94 ( 734 SE2d 357 ) (2012).
discussed
Cited as authority (rule)
Mahone v. State
See Manuel v. State, 289 Ga. 383, 386 ( 711 SE2d 676 ) (2011); Alvelo v. State, 288 Ga. 437, 439 (1) ( 704 SE2d 787 ) (2011); Planas v. State, 296 Ga. App. 51, 52 (1) ( 673 SE2d 566 ) (2009). 1 Judgment vacated and case remanded.
discussed
Cited as authority (rule)
Tolbert v. State
Cf. Bromley v. State, 259 Ga. 377, 379-80 (4) ( 380 SE2d 694 ) (1989) (holding that when defendant was offered but refused curative instructions after the trial court denied his motion for mistrial, he could not thereafter complain); Matiatos v. State, 301 Ga. App. 573, 574 (1) ( 688 SE2d 385 ) (2009) (holding that when trial counsel accepted trial court’s curative instruction without objection and without renewing motion for mistrial, he waived any claim of error on appeal). 30 We leave for another day the question of what arguments a defendant would preserve by explicitly objecting to the …
discussed
Cited as authority (rule)
Manuel v. State
In the motion for new trial, Manuel “specifically asserted that the verdict was ‘against the weight of the evidence.’ See OCGA § 5-5-21. . . .” Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011).
discussed
Cited "see"
JASON THOMAS v. ACCURATE STEEL RULE CUTTING DIE, INC.
(2×)
“It thus appears that the trial court failed to apply the proper standard in assessing whether the evidence was contrary to the jury’s verdict as requested by [Thomas] in [his] motion for new trial.” Moore, 315 Ga. App. at 391 (3); see Alvelo v. State, 288 Ga. 437, 438-439 (1) ( 704 SE2d 787 ) (2011) (concluding that trial court failed to apply proper standard in assessing the weight of the evidence as requested by defendant in his motion for new trial where trial court explicitly stated that it was solely within the purview of the jury to weigh conflicting evidence and judge credibility…
discussed
Cited "see"
Dixon v. State
(2×)
See Alvelo v. State, 288 Ga. 437, 438-439 (1) ( 704 SE2d 787 ) (2011).
discussed
Cited "see"
Moore v. Stewart
(2×)
See Alvelo v. State, 288 Ga. 437, 438-439 (1) ( 704 SE2d 787 ) (2011) (concluding that trial court failed to apply proper standard in assessing the weight of the evidence as requested by defendant in his motion for new trial where trial court explicitly stated that it was solely within the purview of the jury to weigh conflicting evidence and judge credibility of witnesses and that the trial court would not usurp the jury’s function); Hartley, supra, 299 Ga. App. at 540 (3).
discussed
Cited "see"
Alvelo v. State
(2×)
See Alvelo v. State, 288 Ga. 437 ( 704 SE2d 787 ) (2011).
discussed
Cited "see"
Cleveland v. Katz
(2×)
See generally Alvelo v. State, 288 Ga. 437, 439 (1) ( 704 SE2d 787 ) (2011) (vacating trial court’s order where it failed to apply the proper legal standard to party’s motion); Wilken Investments v. Plamondon, III, 310 Ga. App. 146 ( 712 SE2d 576 ) (2011) (vacating and remanding dismissal *885 order for clarification).
discussed
Cited "see, e.g."
Southern Clearing & Grinding, Inc. v. Jose R. Garcia
(2×)
Compare Allen v. State, 296 Ga. 738, 741 (2) ( 770 SE2d 625 ) (2015) (trial court applied the proper legal standard in ruling 15 on a motion for new trial asserting the general grounds when, among other things, nothing in its written order indicated otherwise and it acknowledged its role as the “thirteenth juror” at the hearing) with Alvelo v. State, 288 Ga. 437, 439 (1) ( 704 SE2d 787 ) (2011) (trial court did not apply the proper legal standard to a motion for new trial asserting the general grounds when it “explicitly declined to consider the credibility of witnesses”) (punctuation …
discussed
Cited "see, e.g."
Copeland v. State
(2×)
Compare Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011) (trial court “explicitly declined to consider the ‘credibility of witnesses’ ”); Moore, supra, 315 Ga. App. at 391 (trial court repeatedly stated that witness credibility was solely for jury and that court did not have authority “to usurp this power”).
discussed
Cited "see, e.g."
Toby T. Copeland v. State
(2×)
Compare Alvelo v. State, 288 Ga. 437, 438 (1) ( 704 SE2d 787 ) (2011) (trial court “explicitly declined to consider the ‘credibility of witnesses’”); Moore, supra, 315 Ga. App. at 391 (trial court repeatedly stated that witness credibility was solely for jury and that court did not have authority “to usurp this power”).
Alvelo
v.
the State
v.
the State
S10A1662.
Supreme Court of Georgia.
Jan 10, 2011.
Steven L. Sparger, for appellant., Spencer Lawton, Jr., District Attorney, Cecelia Harris, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Mary K. Ware, Assistant Attorney General, for appellee.
Hunstein.
Cited by 33 opinions | Published
Stephen Alvelo was convicted of malice murder and other crimes arising out of the death of Walter Cooper. He appeals from the denial[*438] of his motion for new trial. [1] Because we agree with Alvelo that the trial court applied an erroneous legal standard in his motion for new trial, we vacate the judgments of conviction and sentence and remand the case to the trial court.
1. The record reveals that Alvelo filed a timely motion for new trial in which he specifically asserted that the verdict was “against the weight of the evidence.” See OCGA § 5-5-21 (the trial judge “may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding”). As the trial court expressly noted in its order, Alvelo urged the court to sit as the “thirteenth juror.” The trial court, however, then explicitly declined to consider the “credibility of witnesses,” stating that “[i]t is solely within the purview of the jury to weigh conflicting evidence and judge credibility of witnesses. . . . [T]he Court will not usurp the jury’s function ... .”
In Ricketts v. Williams, 242 Ga. 303, 304 (248 SE2d 673) (1978), this Court held that the “discretionary decision of a trial court that the verdict is against the ‘weight of the evidence’... is the same as Rule 33 of the Federal Rules of Criminal Procedure.” We then stated that the trial court on motion for new trial
“may weigh the evidence and consider the credibility of witnesses. If the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. ‘It has been said that on such a motion the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.’[”] [Cits.]
(Emphasis supplied.) Ricketts, supra at 304.
It thus appears that the trial court, when it explicitly declined to consider the “credibility of witnesses,” failed to apply the proper standard in assessing the weight of the evidence as requested by Alvelo in his motion for new trial. Only the trial court is authorized by law to conduct such an assessment. See generally Drake v. State, 241 Ga. 583 (1) (247 SE2d 57) (1978). We accordingly vacate the judgment and remand this case to the trial court for consideration of Alvelo’s motion under the proper legal standard. Accord State v. Jones, 284 Ga. 302 (667 SE2d 76) (2008).
2. This holding renders it unnecessary for us to address Alvelo’s remaining enumerations of error.
Judgments vacated and case remanded.
1
The crimes occurred on August 11, 2006. Alvelo was indicted January 14, 2009 in Chatham County on charges of malice murder, felony murder, three counts of aggravated assault, concealing the death of another, false imprisonment and possession of a knife during the commission of a felony. He was found guilty of all charges on August 20, 2009 and was sentenced by order filed August 24, 2009 to life imprisonment for malice murder; concurrent sentences of twenty years (for the aggravated assault of Cooper), ten years (for concealing Cooper’s death) and ten years (for false imprisonment); two consecutive sentences of 20 years (for the aggravated assaults of Williams and Freitag); and a five-year consecutive sentence (for the possession charge). Alvelo’s motion for new trial, filed September 14, 2009 and amended March 5 and 11, 2010, was denied March 30, 2010. A notice of appeal was filed April 28, 2010. The appeal was docketed for the September 2010 term in this Court and was submitted for decision on the briefs.