Georgia Appeals Law Guide / Appellate Law Treatise

Discretionary Review

OCGA § 5-6-35 provides that in certain categories of cases, the appellant must petition the appeals court for the opportunity to appeal, and only if the petition is granted may the appellant then pursue an appeal. “[T]he intent of the statutory scheme in OCGA § 5-6-35 is to alleviate the massive caseloads in the appellate courts by providing for discretionary review rather than right of direct appeal in certain types of cases.” Brown v. Associates Fin. Serv. Corp., 255 Ga. 457, 457 (339 SE2d 590) (1986).

Before beginning any appeal, it is crucial to review OCGA § 5-6-35(a) to determine whether the discretionary review procedure applies and must be followed. The appeals court will dismiss the appeal if the case is of a type listed in OCGA § 5-6-35(a) and the appellant does not apply for discretionary review. The appeals courts dismiss dozens of appeals every year for this reason. See generally Georgia Court of Appeals Caseload Statistics, Applications Disposed 2013 (160 applications dismissed in 2013; note, however, this figure includes interlocutory applications, and discretionary applications can be dismissed for other reasons). In many cases, dismissal for failure to timely file the discretionary application will mean the appellant permanently loses the right to appeal the decision. See Gable v. State, 290 Ga. 81 (720 SE2d 170) (2011) (holding Georgia courts do not have authority to grant an out-of-time discretionary appeal as a remedy for failure to timely file a discretionary application, where remedy was not required by a violation of appellant’s constitutional rights).

There is no unifying feature of the categories listed in OCGA § 5-6-35(a), but several reflect types of cases that involve small dollar amounts, or where another decisionmaking authority will have ruled on the case before review in the lower court. See OCGA §§ 5-6-35(a)(1) (decisions of the superior courts reviewing decisions of lower courts and specified state agencies); 5-6-35(a)(5) (orders revoking probation); 5-6-35(a)(6) (“actions for damages in which the judgment is $10,000.00 or less”).

Georgia discretionary appeal application procedure

An appellant seeking to appeal a case falling into one of the categories listed in Section 5-6-35(a) must file and serve an “application in the nature of a petition” within 30 days of entry of the order being appealed. OCGA §§ 5-6-35(b), (d). The application must include copies of the order and the briefing that led to the order, and “may include copies of … other parts of the record.” OCGA § 5-6-35(c). Within 10 days of the filing of the application, the appellant may file a response, and within 30 days of the filing of the application, the appeals court grants or denies the appeal. OCGA §§ 5-6-35(e), (f). If the appeals court grants the appeal, the appellant has 10 days to file a notice of appeal, after which the appeal proceeds as if it were a direct appeal. OCGA § 5-6-35(g).

Interaction with direct review under OCGA § 5-6-34(a)

An appellant whose case falls into one of the OCGA § 5-6-35(a) categories must follow the discretionary appeal procedure, even if the order also falls into one of the OCGA § 5-6-34(a) direct appeal categories. “Where both OCGA § 5-6-34(a) and OCGA § 5-6-35(a) are involved, an application for appeal is required when ‘the underlying subject matter’ of the appeal is listed in OCGA § 5-6-35(a), even though the party may be appealing a judgment or order that is procedurally subject to a direct appeal under § 5-6-34(a).” Avren v. Garten, 289 Ga. 186, 192 (710 SE2d 130) (2011) (citation omitted). In other words, if both statutory sections apply, Section 5-6-35 takes precedence.

Interaction with interlocutory review under OCGA § 5-6-34(b)

“The discretionary appeal statute does not excuse a party seeking appellate review of an interlocutory order from complying with the additional requirements of OCGA § 5-6-34(b).” Bailey v. Bailey, 266 Ga. 832, 833 (471 SE2d 213) (1996). So, in an interlocutory appeal of a matter subject to discretionary review, the appellant must comply with both the interlocutory review procedure of Section 5-6-34(b) and the discretionary review procedure of Section 5-6-35.

Judgments $10,000 or less

Section 5-6-35(a)(6) does not require discretionary review procedures where the judgment is not for damages, even though an amount of money less than $10,000 may have been somehow at issue in the case. See Brown v. Associates Fin. Serv. Corp., 255 Ga. 457 (339 SE2d 590) (1986) (holding this section does not require discretionary review application for a judgment granting a writ of possession, even where balance due on possessed property was $1,790.25).

Unnecessary filing of discretionary appeal application

If an appellant files an application for discretionary appeal in a case in which direct appeal is available under OCGA § 5-6-34(a), Section 5-6-35(j) provides that the appeals court “shall grant the application,” and the appeal then proceeds as normal.

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