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ABUSE OF DISCRETION

 

ABUSE OF DISCRETION

  


LEGAL DEFINITION OF ABUSE OF DISCRETION

An error of judgment by a trial court in making a decision that is clearly unreasonable, inaccurate, or arbitrary and not justified by the facts or the law applicable to the case

 

OR

 

Failure to properly consider the facts and the law relating to a particular case, An Arbitrary or unreasonable departure from prior and settled judicial custom.

 

 

 

 

 

ERROR BY TRIAL COURT

Where a trial court must use discretion in deciding a question, it must do so in a way that is not clearly against logic and evidence. An unfair practice is an error of law and grounds for reversing judgment on appeal of discretion.

However, this does not necessarily amount to bad faith, willful wrongdoing, or misconduct by the trial judge.

 

For example, the traditional standard of appellate review for questions relating to evidence arising during a trial is the "abuse of discretion" standard. Most judicial determinations are based on the evidence presented in legal proceedings. Evidence may include oral testimony, written testimony, videotapes and sound recordings, exhibitions and professional records such as documentary evidence and a set of other material, including voice examiners, handwriting samples, and blood tests.

 

 

 

When a court does not apply the correct law or if it rests its decision on a clearly erroneous finding of a material fact. U.S. v. Rahm, 993 F.2d 1405, 1410 (9th Cir.'93). A court may also abuse its discretion when the record contains no evidence to support its decision. MGIC v. Moore, 952 F.2d 1120, 1122 (9th Cir.'91), When judges make decisions on various questions, they must, of course, follow the standards set out by law. These standards, though, often allow judges a lot of leeway (which is called discretion). Judges are given this discretion so they can make decisions that are fair in a particular case, instead of being locked into a formula that may not suit every situation.

 

The exercise of judicial discretion is difficult to attack on appeal, because the decision, by law, was left to the judge in the first place. Nevertheless, judicial discretion must be exercised fairly and impartially, and a showing to the contrary may result in the ruling being reversed as an abuse of discretion.

 



ABUSE OF DISCRETION

Trial courts have the discretion to decide certain issues as they see fit, and appeals courts cannot reverse such decisions unless the trial court abuses its discretion. The "abuse of discretion" standard of review is disregard for the trial court's decision, while the "de novo" standard is not. The cases describe the trial court as having "latitude" to make certain decisions under the misuse of the deliberation standard.


Hammond v. Hammond, 290 Ga. 518, 519, 520 (722 SE2d 729) (2012) Appeal courts state that they will not substitute "[their] decision for trial court" on these issues. General Motors Corp v. Konkle, 226 Ga. App. 34 (486 SE2d 180) (1997) (Blackburn, J, especially concurrent). See generally Hon. Henry j. Favorable, Conscience About Conscience, 31 Amory LJ 747 (1982).

"Discretion" is defined as, "the latitude of judgment within which a court or judge raises questions according to the circumstances in a particular case and according to the decision of the court or judge, expressly governed by the prescribed rules of law." No…. ”Columbus Foundries, Inc. V. Moore, 175 Ga. App. 387, 388–89 (333 SE2d 212) (1985) (citation and quotation marks omitted). Generally, the types of cases reviewed under an abuse of discretionary standard are legal judgments (as with any type of trial court's "any evidence" or "clearly erroneous" standard of fact reviewed under Contrary to the findings) is in a better position to create an appeals court. These include scheduling decisions, search cases, and several explicit rules.

 

 

 


ANY EVIDENCE / CLEARLY FLAWED VS. ABUSE OF DISCRETION

Although the "de novo" standard is easy to understand, the difference between "abuse of conscience" and "obviously wrong" causes some confusion. The situation is not helped by the fact that, in Georgia, "clearly erroneous" and "any evidence" are considered two descriptions of the same standard.

 

Reid v. state, 291 Ga. 10, 13 (727 SE2d 112) (2012) (citation omitted), the Supreme Court held that "'abuse of discretion' ... is 'at least slightly deferential than any evidence' trial." And conversely, "'abuse' of conscience is different from the norm and not so much as a 'clearly erroneous' test."

"As the court further noted, various standards of review sometimes apply to different parts of the lower court's decision, so that the appeals court will" accept factual findings unless they are clearly erroneous and specifically.

 

 

A useful depiction of the difference between "any evidence" and "abuse of discretion" arises in the context of a lawyer's fee award under OCGA-159-15-14. Section 9-15-14 (a) If a party has faced a complete absence of any position or any reasonable issue of law with due respect, it is presumed that it cannot be believed "The court will accept [it]. In other words, once the trial court makes a factual finding that there was not a" complete absence of any justifiable issue ", the trial court's ruling on the fees should automatically follow; The trial court has no discretion to pay fees if there was a reasonable issue, or a reasonable issue, not to award fees.

 

Thus, the "no evidence" standard applies. On the other hand, section 9-15- 14 (b) allows the trial court to award fees where an action was "unnecessarily extended" by "lack of sufficient justification," "was interfered with for delay or harassment," or other improper conduct . "After making the facts of these issues relevant, the trial court has the discretion to pay or not pay the fees, and accordingly, review the abuse of discretion under a decision under section 9-15-14 (b) The treatment is done. See generally Fulton County Sch. District. v. Harsh, 320 Ga. App. 808, 814–15 (740 SE2d 760) (2013).

 




REFUSAL TO EXERCISE, LEADS TO MISCARRIAGE

When a trial court has discretion to decide an issue, but imposes a strict rule instead of exercising its discretion, it abuses discretion.


For example, in Flanagan v. State, 218 Ga. App. 598 (462 SE2d 469) (1995), the trial court denied the defendant's request to appoint counsel solely based on the fact that the defendants' income was too high, considering other discretionary factors Including exercise without due diligence in effort. Maintain a lawyer. The Court of Appeals overturned, a stay of abuse of discretion. "While it is not the duty of the court to appoint counsel for candidates who do not meet the standard of indigestion, it is discretionary to do so." And this discretion should be exercised positively based on the individual circumstances of each case; The court cannot deny all such requests as a matter of policy.

 

Similarly, V. in Cottingham. State, 206 Ga. App. 197 (424 SE2d 794) (1992), the trial court ordered that the defendant's sentence be consecutive to a sentence the defendant was already serving in Alabama, and said, "It [is] to run my sentence concurrently." It is not my policy to have any other sentence until I have imposed that other sentence…. I always make it a policy to apply any sentence to any sentence they are serving now.

 

 

The court of appeals vacated this part of the trial court's order. "Because of the wide discretion in the sentence contained in the trial court, it is the duty of the courts to assign that discretion to all aspects of the sentence. We hold that the trial court has used a mechanical sentencing formula or policy as part of a sentencing amount to refuse to use its discretion and is therefore an indication of judicial responsibility. Here, the trial court discharged its judicial responsibility by basing a portion of its sentence on the stricter policy that it would never pursue a sentence that would apply to a sentence imposed by another court. The trial court failed to exercise its discretion, ordering that Cottingham's sentence be based solely on the stated policy of Alabama's conviction in the case.

But see McCullough v. State, 317 Ga. App. 853, 855 (733 SE2d 36) (2012) (affirming trial court's decision not to grant defendant first offender status, where trial judge "[Y] yes, the comment was made, but I'm not going to do it" that judge was required to first consider delinquent treatment, because, "looking at the judge's comment overall," the trial court Did not refuse to use discretion "explicitly" or "explicitly".

 




DISSIDENTS OUT THE LATITUDE OF DISCIPLINE

A trial court may also abuse its discretion if it exercises discretion but arrive at a decision that is beyond the scope of permissible discretion. For example, decisions of evidence such as a decision to exclude a witness are generally within the trial court's discretion, but can be reversed for abuse of discretion.

Kroger Company vs Walters, 319 Ga. App. 52 (735 SE2d 99) (2012), the trial court granted a motion to prohibit a witness from testifying, even if the witness's testimony was relevant, on the basis that the witness was not identified in time. The Court of Appeal overturned the exclusion of witnesses, it was an abuse of discretion. "In a civil suit it is an abuse of discretion to completely exclude a relevant witness on the ground that the witness was not identified during the search or on time."


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