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Ch 2, p.28 CRIMINAL PROCEDURE August 2010
plea is found to be defective is failure to establish a factual basis for the charge, the court shall afford
the state an opportunity to establish an adequate factual basis before ruling on the motion in arrest of
judgment.
e. Proceedings after order arresting judgment on any ground other than a defect in a guilty plea
proceeding. If, from the evidence on the trial, there is reasonable ground to believe the defendant
guilty, and a new indictment or information can be framed, the court may order the defendant to be
recommited to the officer of the proper county, or admitted to bail or otherwise released anew, to
answer the new indictment. In such case the order arresting judgment shall not be a bar to another
prosecution. But if the evidence upon trial appears to the trial court insufficient to charge the defendant
with any offense, the defendant must, if in custody, be released; or, if admitted to bail, the defendant’s
bail be exonerated; or if money has been deposited instead of bail, it must be refunded to the defendant
or to the person or persons found by the court to have deposited said money on behalf of the defendant.
f. Time of decision. A motion in arrest of judgment shall be heard and determined by the court
within 30 days from the date it is filed, except upon good cause entered in the record.
2.24(4) General principles.
a. Extensions. The time for filing motions for new trial or in arrest of judgment may be extended
to such further time as the court may fix.
b. Disposition. If the defendant moves for a new trial, or in arrest of judgment, the court shall
defer the judgment and proceed to hear and decide the motions.
c. Appeal. Appeal from an order granting or denying a motion for new trial or in arrest of judgment
may be taken by the state or the defendant. Where the court has denied the motion for new trial or in
arrest of judgment, or both, appeal may be had only after judgment is pronounced.
d. Custody pending appellate determination. Pending determination by the appellate court of such
appeal, the trial court shall determine whether the defendant shall remain in custody, or whether, if
in custody, the defendant should be released on bail or the defendant’s own recognizance. Where the
trial court has arrested judgment and an appeal is taken by the state, and it further appears to the trial
court that there is no evidence sufficient to charge the defendant with an offense, the defendant shall
not be held in custody.
e. Reinstatement of verdict. In the event the appellate court reverses the order of the trial court
arresting judgment or granting a new trial, it shall order that the verdict be reinstated, unless the
appellate court finds other reversible errors, in which event it may enter an appropriate different order.
2.24(5) Correction of sentence.
a. Time when correction of sentence may be made. The court may correct an illegal sentence at
any time.
b. Credit for time served. The defendant shall receive full credit for time spent in custody under
the sentence prior to correction or reduction.
[66GA, ch 1245(2), §1301; 67GA, ch 153, §69 to 73; Report 1978, effective July 1, 1979; amendment 1983;
November 9, 2001, effective February 15, 2002]
Rule 2.25 Bill of exceptions.
2.25(1) Purpose. The purpose of a bill of exceptions is to make the proceedings or evidence
appear of record which would not otherwise so appear.
2.25(2) What constitutes record; exceptions unnecessary. All papers pertaining to the cause and
filed with the clerk, and all entries made by the clerk in the record book pertaining to them, and
showing the action or decision of the court upon them or any part of them, and the judgment, are to
be deemed parts of the record, and it is not necessary to except to any action or decision of the court
so appearing of record.
2.25(3) Grounds for exceptions. On the trial of an indictable offense, exceptions may be taken by
the state or by the defendant to any decision of the court upon matters of law, in any of the following
cases:
a. In disallowing a challenge to an individual juror.
b. In admitting or rejecting witnesses or evidence on the trial of any challenge to an individual
juror.
c. In admitting or rejecting witnesses or evidence.
d. In deciding any matter of law, not purely discretionary on the trial of the issue.
Exceptions may also be taken to any action or decision of the court which affects any other material
or substantial right of either party, whether before or after the trial of the indictment, or on the trial.