GA Code § 5-5-41 (2021)
2021 Georgia Code|Title 5 - Appeal and Error|Chapter 5 - New Trial|Article 3 - Procedure|§ 5-5-41. Requirements as to Extraordinary Motions for New Trial Generally; Notice of Filing of Motion; Limitations as to Number of Extraordinary Motions in Criminal Cases; Dna Testing

  When a motion for a new trial is made after the expiration of a 30 day period from the entry of judgment, some good reason must be shown why the motion was not made during such period, which reason shall be judged by the court. In all such cases, 20 days' notice shall be given to the opposite party.   Whenever a motion for a new trial has been made within the 30 day period in any criminal case and overruled or when a motion for a new trial has not been made during such period, no motion for a new trial from the same verdict or judgment shall be made or received unless the same is an extraordinary motion or case; and only one such extraordinary motion shall be made or allowed.     Subject to the provisions of subsections (a) and (b) of this Code section, a person convicted of a felony may file a written motion before the trial court that entered the judgment of conviction in his or her case for the performance of forensic deoxyribonucleic acid (DNA) testing.   The filing of the motion as provided in paragraph (1) of this subsection shall not automatically stay an execution.   The motion shall be verified by the petitioner and shall show or provide the following:   Evidence that potentially contains deoxyribonucleic acid (DNA) was obtained in relation to the crime and subsequent indictment, which resulted in his or her conviction;   The evidence was not subjected to the requested DNA testing because the existence of the evidence was unknown to the petitioner or to the petitioner's trial attorney prior to trial or because the technology for the testing was not available at the time of trial;   The identity of the perpetrator was, or should have been, a significant issue in the case;   The requested DNA testing would raise a reasonable probability that the petitioner would have been acquitted if the results of DNA testing had been available at the time of conviction, in light of all the evidence in the case;   A description of the evidence to be tested and, if known, its present location, its origin and the date, time, and means of its original collection;   The results of any DNA or other biological evidence testing that was conducted previously by either the prosecution or the defense, if known;   If known, the names, addresses, and telephone numbers of all persons or entities who are known or believed to have possession of any evidence described by subparagraphs (A) through (F) of this paragraph, and any persons or entities who have provided any of the information contained in petitioner's motion, indicating which person or entity has which items of evidence or information; and   The names, addresses, and telephone numbers of all persons or entities who may testify for the petitioner and a description of the subject matter and summary of the facts to which each person or entity may testify.     The petitioner shall state:   That the motion is not filed for the purpose of delay; and   That the issue was not raised by the petitioner or the requested DNA testing was not ordered in a prior proceeding in the courts of this state or the United States.     The motion shall be served upon the district attorney and the Attorney General. The state shall file its response, if any, within 60 days of being served with the motion. The state shall be given notice and an opportunity to respond at any hearing conducted pursuant to this subsection.     If, after the state files its response, if any, and the court determines that the motion complies with the requirements of paragraphs (3) and (4) of this subsection, the court shall order a hearing to occur after the state has filed its response, but not more than 90 days from the date the motion was filed.   The motion shall be heard by the judge who conducted the trial that resulted in the petitioner's conviction unless the presiding judge determines that the trial judge is unavailable.   Upon request of either party, the court may order, in the interest of justice, that the petitioner be at the hearing on the motion. The court may receive additional memoranda of law or evidence from the parties for up to 30 days after the hearing.   The petitioner and the state may present evidence by sworn and notarized affidavits or testimony; provided, however, any affidavit shall be served on the opposing party at least 15 days prior to the hearing.   The purpose of the hearing shall be to allow the parties to be heard on the issue of whether the petitioner's motion complies with the requirements of paragraphs (3) and (4) of this subsection, whether upon consideration of all of the evidence there is a reasonable probability that the verdict would have been different if the results of the requested DNA testing had been available at the time of trial, and whether the requirements of paragraph (7) of this subsection have been established.     The court shall grant the motion for DNA testing if it determines that the petitioner has met the requirements set forth in paragraphs (3) and (4) of this subsection and that all of the following have been established:   The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;   The evidence to be tested has been subject to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;   The evidence was not tested previously or, if tested previously, the requested DNA test would provide results that are reasonably more discriminating or probative of the identity of the perpetrator than prior test results;   The motion is not made for the purpose of delay;   The identity of the perpetrator of the crime was a significant issue in the case;   The testing requested employs a scientific method that has reached a scientific state of verifiable certainty such that the procedure rests upon the laws of nature; and   The petitioner has made a prima facie showing that the evidence sought to be tested is material to the issue of the petitioner's identity as the perpetrator of, or accomplice to, the crime, aggravating circumstance, or similar transaction that resulted in the conviction.     If the court orders testing pursuant to this subsection, the court shall determine the method of testing and responsibility for payment for the cost of testing, if necessary, and may require the petitioner to pay the costs of testing if the court determines that the petitioner has the ability to pay. If the petitioner is indigent, the cost shall be paid from the fine and bond forfeiture fund as provided in Article 3 of Chapter 21 of Title 15.   If the court orders testing pursuant to this subsection, the court shall order that the evidence be tested by the Division of Forensic Sciences of the Georgia Bureau of Investigation. In addition, the court may also authorize the testing of the evidence by a laboratory that meets the standards of the DNA advisory board established pursuant to the DNA Identification Act of 1994, Section 14131 of Title 42 of the United States Code, to conduct the testing. The court shall order that a sample of the petitioner's DNA be submitted to the Division of Forensic Sciences of the Georgia Bureau of Investigation and that the DNA analysis be stored and maintained by the bureau in the DNA data bank.   If a motion is filed pursuant to this subsection the court shall order the state to preserve during the pendency of the proceeding all evidence that contains biological material, including, but not limited to, stains, fluids, or hair samples in the state's possession or control.   The result of any test ordered under this subsection shall be fully disclosed to the petitioner, the district attorney, and the Attorney General.   The judge shall set forth by written order the rationale for the grant or denial of the motion for new trial filed pursuant to this subsection.   The petitioner or the state may appeal an order, decision, or judgment rendered pursuant to this Code section.      (Orig. Code 1863, § 3645; Code 1868, § 3670; Ga. L. 1873, p. 47, § 1; Code 1873, § 3721; Code 1882, § 3721; Civil Code 1895, § 5487; Penal Code 1895, § 1064; Civil Code 1910, § 6092; Penal Code 1910, § 1091; Code 1933, § 70-303; Ga. L. 2003, p. 247, § 1; Ga. L. 2011, p. 264, § 1-2/SB 80; Ga. L. 2012, p. 775, § 5/HB 942; Ga. L. 2015, p. 693, § 3-4/HB 233.)    The 2011 amendment,  effective May 11, 2011, deleted "serious violent" and "as defined in Code Section 17-10-6.1" preceding and following "felony" in paragraph (c)(1).    The 2012 amendment,  effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, revised punctuation in paragraph (c)(1).    The 2015 amendment,  effective July 1, 2015, substituted "fine and bond forfeiture fund as provided in Article 3 of Chapter 21" for "fine and forfeiture fund as provided in Article 3 of Chapter 5" at the end of paragraph (c)(8). See Editor's notes for applicability.   Cross references.   - Granting of new trial based on newly discovered evidence, § 5-5-23.    Extensions of time for filing of motions for new trial, § 9-11-6.   Editor's notes.   - Ga. L. 2003, p. 247, § 5, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval. Notwithstanding the provisions of subsection (b) of Code Section 5-5-41, any person convicted of a serious violent felony as defined in Code Section 17-10-6.1, which conviction was imposed prior to the effective date of this Act, who has, prior to the effective date of this Act, filed an extraordinary motion for new trial, may file an extraordinary motion for new trial pursuant to Section 1 of this Act if the issue of DNA testing was not raised or denied in the prior extraordinary motion for new trial. In any extraordinary motion for new trial allowed pursuant to Section 1 of this Act, the court shall not have jurisdiction to reconsider any other issue raised in the first extraordinary motion for new trial. Notwithstanding the provisions of subparagraph (c)(4)(B) of Code Section 5-5-41, any person convicted of a serious violent felony as defined in Code Section 17-10-6.1, which conviction was imposed prior to the effective date of this Act, who has, prior to the effective date of this Act, previously litigated in a court of this state or the United States the issue of postconviction DNA testing and who was denied DNA testing may file an extraordinary motion for new trial pursuant to Section 1 of this Act." This Act became effective May 27, 2003.   Ga. L. 2011, p. 264, § 1-1/SB 80, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Johnia Berry Act.'"   Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."   Law reviews.   - For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For note on the 2003 amendment to this Code section, see 20 Ga. St. U.L. Rev. 119 (2003). For note, "Seen But Not Heard: An Argument for Granting Evidentiary Hearings to Weigh the Credibility of Recanted Testimony," see 46 Ga. L. Rev. 213 (2011). For note, "It's All In The DNA - How United States v. Hano Extends the Statute of Limitations for the Eleventh Circuit," see 71 Mercer L. Rev. 1191 (2020). For comment on Williams v. Georgia, 24 U.S.L.W. 3191 (Jan. 17, 1956), discussing whether a challenge to the entire panel could be raised by an extraordinary motion for new trial, see 18 Ga. B.J. 350 (1956).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Trial Court's Discretion   Extraordinary Motions Based on Newly Discovered Evidence   Application    OPINIONS OF THE ATTORNEY GENERAL    Extraordinary motion for new trial may be filed at any time after conviction;  extraordinary motion must show that there is some material matter which would have been beneficial to the defendant at the time of trial and that such matters were unknown to the defendant and could not have been discovered by the defendant or defense counsel by use of due diligence. 1957 Op. Att'y Gen. p. 69.   RESEARCH REFERENCES   Admissibility and Reliability of Hair Sample Testing to Prove Illegal Drug Use, 47 POF3d 203.   ALR.    - Bill of review as the proper remedy where decree is entered after the death of a party, 6 A.L.R. 1524.   Delay as affecting right to coram nobis attacking criminal conviction, 62 A.L.R.2d 432.   Time for filing motion for new trial based on jury conduct occurring before, but discovered after, verdict, 97 A.L.R.2d 788.