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Habeas Corpus - a different kind of appeal

A conviction in a criminal case does not necessarily mean that a case is over. In some instances there were mistakes made at trial that can lead to an appeal. An appeal is where you ask a higher court to review what was done to ensure that someone received a fair trial. One type of appeal is called habeas corpus.

First and foremost, a petition for a writ of habeas corpus is deemed to be a civil filing. Therefore, there is NO RIGHT TO COUNSEL at such a hearing. If you want an attorney to represent you or a loved on in a habeas corpus action you will need to retain your own lawyer. At Spence & McPeek, LLC we have helped clients with this specific type of action. If you have questions please feel free to contact us at 404.236.6060 to talk about your specific situation.

A petition for a writ of habeas corpus is how someone challenges the legality of a person's restraint. It is often the last type of appeal that a person files in their criminal case. When Courts consider issuing a writ of habeas corpus they consider the following: (1) is the right arising under State or Federal law, (2) whether that rights has been waived, (3) whether a violation of that right occurred, and (4) whether the violation was harmless.

Common issues that arise in habeas corpus appeals are that the trial court made a mistake regarding the admission or suppression of certain evidence, that the trial lawyer was ineffective, and/or that an appellate lawyer made a mistake in handling the direct appeal.

When filing a habeas corpus petition, the petitioner must complete an application. this form is called HC-1. There are VERY specific rules governing this document. The person that is requesting the habeas petition may also file a brief that explains what mistakes were made and why the petition should be granted. The brief filed is very important as it shows the Court why the petition should be granted.

After the filing of these documents there will ultimately be a hearing on the petition and brief. Then the habeas corpus court will issue a ruling on the matter. Georgia law section 9-14-48 governs the rules and regulations of these types of appeals and hearings. There are also ways to appeal from an adverse ruling of a habeas corpus decision, but there is a whole new set of rules that need to be followed.

Habeas corpus proceedings are very different that a standard appeal. If you or a loved one are in a situation where this may be the right course of action, please feel free to call us at 404.236.6060 and one of our attorneys would be glad to speak with you!

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