TITLE 5 APPEAL AND ERROR

Section 6. Certiorari and Appeals to Appellate Courts Generally, 5-6-1 through 5-6-51.

ARTICLE 2 APPELLATE PRACTICE

5-6-45. Operation of notice of appeal as supersedeas in criminal cases; bond; review.

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.
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.
Any supersedeas bond may be reviewed by the presiding judge on the motion of defendant, prosecuting attorney, or on its own motion, and the court may require new or additional security, or order the bond strengthened, increased, reduced, or otherwise amended as justice may reasonably require.

(Laws 1845, Cobb's 1851 Digest, pp. 449, 453; Code 1863, § 4171; Code 1868, § 4203; Code 1873, § 4263; Code 1882, § 4263; Penal Code 1895, § 1077; Penal Code 1910, § 1104; Code 1933, § 6-1005; Ga. L. 1965, p. 18, § 7; Ga. L. 1984, p. 413, § 1; Ga. L. 1992, p. 6, § 5; Ga. L. 1996, p. 748, § 9.)

Cross references.

- Termination of appeal bonds in criminal cases, § 17-6-1.

Review of death sentences by Supreme Court, § 17-10-35 et seq.

Supersedeas, Rules of the Supreme Court of the State of Georgia, Rule 12.

Filing notice of appeal and cross appeal, Rules of the Supreme Court of the State of Georgia, Rule 38.

Supersedeas, Rules of the Court of Appeals of the State of Georgia, Rule 50.

Editor's notes.

- Ga. L. 1996, p. 748, § 27, not codified by the General Assembly, provides: "Notwithstanding any other provision of law, an Act approved February 11, 1854 (Ga. L. 1854, p. 281), which abolished the office of solicitor of the City Court of Savannah, now the State Court of Chatham County, and transferred responsibility for the prosecution of criminal cases in said court to the solicitor general (now the district attorney) for the Eastern Judicial Circuit is confirmed. It shall be the duty of said district attorney to prosecute all criminal actions in said state court until otherwise specifically provided by law."

Ga. L. 1996, p. 748, § 28, not codified by the General Assembly, provides: "The provisions of this Act shall not affect the powers, duties, or responsibilities of the district attorney as successor to the office of solicitor general under the constitution, statutes, and common law of this state as provided by Code Section 15-18-1."

Ga. L. 1996, p. 748, § 29, not codified by the General Assembly, provides: "Except as otherwise authorized in this Act, on and after July 1, 1996, any reference in general law or in any local Act to the solicitor of a state court shall mean and shall be deemed to mean the solicitor-general of such state court."

Ga. L. 1996, p. 748, § 30, not codified by the General Assembly, provides: "(a) Except as provided in subsection (b) of this section, this Act shall become effective on July 1, 1996.

"(b) The provisions of paragraph (3) of Code Section 15-18-62, relating to the qualifications for the office of solicitor-general of a state court, shall apply to any person elected or appointed to such office after July 1, 1996. Any person holding such office on July 1, 1996, may continue to hold such office for the remainder of the term to which such person was elected or appointed notwithstanding the fact that such person has not been a member of the State Bar of Georgia for three years if such person is otherwise qualified to hold the office of solicitor-general."

Law reviews.

- For article, "The Appellate Procedure Act of 1965," see 1 Ga. St. B.J. 451 (1965). For article, "1966 Amendments to the Appellate Procedure Act of 1965," see 2 Ga. St. B.J. 433 (1966).

JUDICIAL DECISIONS

General Consideration

Trial judge may use discretion in determining if bail should be granted. Sellers v. Georgia, 374 F.2d 84 (5th Cir. 1967).

Granting or refusing of bail in felony cases after indictment and conviction is a matter within sound discretion of trial court, and Supreme Court on appeal will not control that discretion unless that discretion has been flagrantly abused. Watts v. Grimes, 224 Ga. 227, 161 S.E.2d 286 (1968).

"If sentence is bailable," means when it is bailable in sound discretion of trial judge. Sellers v. State, 112 Ga. App. 607, 145 S.E.2d 827 (1965); Watts v. Grimes, 224 Ga. 227, 161 S.E.2d 286 (1968); Holcomb v. State, 129 Ga. App. 86, 198 S.E.2d 876 (1973).

Continuation of bond until appeal is finally decided.

- It would be unrealistic to limit bond to single, specified date and not to require that bond be continued in effect until appeal is finally decided. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).

Criminal bonds construed with reasonable strictness.

- Criminal bond should be construed with reasonable strictness and surety should not be required to fulfill any conditions the surety did not covenant to perform, but intention as expressed by parties should be enforced. Coweta Bonding Co. v. Carter, 230 Ga. 585, 198 S.E.2d 281 (1973).

Defendant has no right to suspend order revoking probationary sentence by giving of bond, since final judgment of conviction terminates any right to supersedeas. Morrison v. State, 126 Ga. App. 565, 191 S.E.2d 449 (1972).

Power to grant nolle prosequi.

- In enacting O.C.G.A. § 5-6-45, the legislature did not intend to deprive the trial court of the court's power to grant a nolle prosequi of a subsequent indictment after the filing of a notice of appeal from an order denying a plea of former jeopardy. Waters v. State, 174 Ga. App. 438, 330 S.E.2d 177 (1985).

Power of supersedeas.

- Notice of appeal did not serve as a supersedeas and generally divested the trial court of jurisdiction to alter or execute a judgment of conviction since the defendant had not been found guilty of theft by receiving, and thus there was no judgment of conviction to appeal. Reedman v. State, 265 Ga. App. 162, 593 S.E.2d 46 (2003).

Considerations for bond.

- Release on bond should not be granted unless the court finds that there is no substantial risk the defendant will not appear to answer the judgment following conclusion of the appellate proceedings and that the defendant is not likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice, and that the appeal is not frivolous or taken for delay. Johnson v. State, 176 Ga. App. 620, 337 S.E.2d 42 (1985).

Jurisdiction to reconsider order to return property.

- Trial court's jurisdiction to reconsider the court's order to return property, which was removed when the state filed the state's notice of appeal, is not retroactively supplied by the fact that the appeal was later dismissed by order of the supreme court for lack of a right of appeal in the state. King v. State, 208 Ga. App. 623, 432 S.E.2d 109 (1993), aff'd, 264 Ga. 282, 443 S.E.2d 844 (1994).

Jurisdiction of trial court.

- Pendency of an appeal in the Supreme Court of Georgia did not deprive the trial court of jurisdiction to issue an order granting the defendant an out-of-time appeal. Porter v. State, 308 Ga. App. 121, 706 S.E.2d 620 (2011).

In a criminal case, the trial court maintains jurisdiction over the injunctive relief granted to the state in cases ordering involuntary medication of a defendant, including any modification or stay of that relief. Either the government or the defendant may move to revise the court's sell order if circumstances change during a defendant's treatment. Johnson v. State, 341 Ga. App. 384, 801 S.E.2d 82 (2017).

Appellate court lacked jurisdiction over bail conditions.

- Appellate court was without jurisdiction to consider the defendant's arguments regarding bail conditions because under O.C.G.A. § 5-6-45(c), such conditions were reviewable by the trial court. Barnett v. State, 275 Ga. App. 464, 620 S.E.2d 663 (2005).

Cited in State v. Gilmer, 154 Ga. App. 673, 270 S.E.2d 25 (1980); Cowan v. State, 156 Ga. App. 650, 275 S.E.2d 665 (1980); Sharp v. State, 183 Ga. App. 641, 360 S.E.2d 50 (1987); Serpentfoot v. State, 241 Ga. App. 35, 524 S.E.2d 516 (1999); Brown v. State, 322 Ga. App. 446, 745 S.E.2d 699 (2013); Graham v. State, 331 Ga. App. 36, 769 S.E.2d 753 (2015), cert. denied, 2015 Ga. LEXIS 428 (Ga. 2015).

Revocation of Bail Bond

Power of trial judge to revoke bail bond pending appeal.

- Intent of legislature in passing section was not that supersedeas deprive trial judge of power to revoke bail bond pending appeal. It merely deprived the judge of the judge's power to execute sentence. Riggins v. State, 134 Ga. App. 941, 216 S.E.2d 723 (1975).

While trial judge may not execute sentence under supersedeas, the judge may nevertheless revoke bail bond to make the defendant amenable to execution when and if that time should come. Riggins v. State, 134 Ga. App. 941, 216 S.E.2d 723 (1975).

Notice and hearing required upon decision to revoke appeal bail bond.

- Due process requirements of Fifth and Fourteenth Amendments mandate notice and an evidentiary hearing upon trial court's decision to revoke appeal bail bond. Riggins v. State, 134 Ga. App. 941, 216 S.E.2d 723 (1975).

Forfeiture of Bond

Forfeiture.

- Forfeiture of appeal or supersedeas bond granted under former Code 1933, § 6-1005 (see O.C.G.A. § 5-6-45) was is accomplished pursuant to former Code 1933, § 27-906 (see O.C.G.A. § 17-6-7) by issuing rule nisi and writ of scire facias. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).

Whether the defendant was admitted to bail under former Code 1933, § 70-308 (see O.C.G.A. § 5-5-46), pending decision on the defendant's motion for new trial, or under former Code 1933, § 6-1005 (see O.C.G.A. § 5-6-45), pending decision on his appeal, forfeiture procedures of former Code 1933, § 27-906 (see O.C.G.A. § 17-6-71) applied to bond. Under either section, the trial judge would exercise the judge's discretion in permitting release on bail. State v. Slaughter, 246 Ga. 174, 269 S.E.2d 446 (1980).

OPINIONS OF THE ATTORNEY GENERAL

Suspension of execution of sentences in criminal cases.

- Execution of sentence imposed in criminal case is suspended when notice of appeal is filed. 1975 Op. Att'y Gen. No. 75-30.

Execution of probated sentence involving payment of fines and restitution is suspended pending appeal. 1975 Op. Att'y Gen. No. 75-30.

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Appellate Review, § 201 et seq.

2 Am. Jur. Pleading and Practice Forms, Appeal and Error, § 702.

C.J.S.

- 4 C.J.S., Appeal and Error, § 477 et seq., 531 et seq.

ALR.

- Bail pending appeal from conviction, 45 A.L.R. 458.

Constitutional right to bail pending appeal from conviction, 77 A.L.R. 1235.

When appeal is or is not deemed to have been prosecuted "with effect" or "to effect" within condition of supersedeas bond, 163 A.L.R. 410.

Review for excessiveness of sentence in narcotics case, 55 A.L.R.3d 812.

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