Georgia Criminal Procedure, The Basics

Daily, many individuals find themselves faced with the unfortunate circumstance of being arrested for a criminal offense. This article will shed some light on what to expect in the event of an arrest in Georgia.

A criminal case is tried in the City or County where the crime occurred, and venue pertains to the actual court that will hear the case. Venue is determined by the following factors: (1) whether the offense is a city ordinance, local county ordinance, or a State charge, and whether the offense is a misdemeanor or a felony. If an individual is arrested by a “City” police officer for a misdemeanor offense, then venue would be proper in the Municipal Court of that City. If an individual is arrested by a County Police Officer, then venue would be proper in that County, whether misdemeanor or felony.

Georgia criminal courts include: Municipal Courts (i.e., “City” Courts) that have jurisdiction over misdemeanor offenses committed in that City. Magistrate Courts hear both criminal and civil matters. The criminal section of the Magistrate Court handles bond hearings, probable cause hearings, and warrant application hearings. Recorders Courts (not all counties have “Recorders Courts”) in DeKalb County and Gwinnett County hear misdemeanor, criminal offenses such as traffic offenses and misdemeanor theft offenses. Gwinnett County Recorders Court also hears misdemeanor DUI offenses. State Courts (most counties have State Courts) handle misdemeanor criminal offenses where the crime was committed in that particular county. Superior Courts hear all felony matters where the offense was committed in that particular county.

The Court of Appeals handles the initial appeal, if a criminal trial ends with a “conviction”. The Defendant has thirty (30) days from the date of the conviction to either file a “motion for a new trial”(in the Superior Court) or a “notice of appeal” (in the Superior Court). If a “motion for new trial” is filed, and at the conclusion of the hearing the motion is denied, then the Defendant has thirty (30) days from the order of the court to file his/her Notice of Appeal. The entire record is then forwarded to the Court of Appeals which will send a notice of the “docketing date” to the appellate attorney and the District Attorney’s office notifying each of the deadline by which their Briefs and Enumeration of Errors must be filed. Once all of the briefs and enumeration of errors have been filed, a panel of judges will review the record, the briefs and the enumeration of errors and render a decision to either uphold the conviction, reverse the conviction, or remand the case back to the Superior Court for further hearings.

The Supreme Court is the highest court of the State to address appellate matters. In the event that the Defendant is not satisfied with the ruling of the Court of Appeals, he/she may seek further appellate review from the Supreme Court.

Probable Cause is necessary before an arrest may be made. And if a law enforcement officer believes he or she has probable cause to make an arrest, the officer may apply for a warrant before hand, or if he/she witnesses a crime occur, he/she may make the arrest and then obtain a warrant. The officer may also make an arrest based on the allegations of a witness or victim, and then a warrant must be obtained.

In some instances, an individual citizen who believes that he/she is a victim of a crime may go to the Magistrate Court and apply for a warrant. At the time of making their application, if the judge believes the facts as alleged are questionable, the judge may schedule a “warrant application hearing” to give the accused an opportunity to appear and give his/her side of the story. At the conclusion of the warrant application hearing, the judge will either dismiss the case or sign a warrant for the arrest of the accused.

A Probable Cause Hearing (Magistrate Court) must be requested by the Defendant. The purpose of the hearing is to determine whether the officer had enough probable cause to make the arrest. Most jurisdictions only grant probable cause hearings to the Defendant if he or she is still in custody. Probable cause hearings are vital to the defense of the case, as this is the only opportunity that the defense attorney can actually cross examine the State’s witnesses on the stand, under oath, short of a trial hearing. The judge may also find that there is not enough probable cause for the actual crime charged, but that there is evidence of a lesser criminal offense. In that case, the judge can either dismiss all charges or bind the case over to the State or Superior Court on the lesser charge only.

Bond Hearings are typically held in Magistrate Courts but are also held in State and Superior Courts where the Defendant is still in custody. Elements that must be addressed in requesting a bond include: (a) Whether the Defendant has any ties to the community; (b) Whether the Defendant is likely to intimidate any witnesses; (c) Whether the Defendant is likely to commit any new criminal offenses while out on bond; and (d) Whether the Defendant is likely to flee the jurisdiction of the Court if released on bond. In determining bond, the judge will consider the severity of the offense, as well as, the facts testified to and the criminal record of the Defendant. In the event bond is denied or too high, the Defendant may apply at a later date for a “bond reduction.”

The arraignment is the initial hearing in the State or Superior Court at which the Defendant is notified of the charges and is asked to enter a plea (guilty or not guilty) or some other resolution. A “nolo contendere” (also known as a “nolo” or “no contest” plea). is at the discretion of the Court and may only be used once every five years for the same offense.

Also, discovery motions must be filed by the Defendant or his/her attorney at or prior to the arraignment, unless granted additional time by the Court. These motions are a request for the State turn over its evidence and witness information.

A pre-trial conference is held for the purpose of negotiating with the State in an attempt to resolve a case. In Clayton and DeKalb Counties, pre-trial conferences are held before the judge. In Fulton County, pre-trial conferences are typically held only between the defense attorney and the prosecutor, unless requested otherwise. In Cobb and Gwinnett Counties, pre-trial conferences are normally held at the prosecutor’s table and typically do not involve the judge. Where a pre-trial conference includes the judge, at the conclusion of the pre-trial conference, the judge will notify the prosecutor and the defense attorney what his or her sentence will likely be if the Defendant enters a guilty plea. At that time, the Defendant knows what he/she is facing if he/she wants to resolve the case without a trial. Typically, if the Defendant rejects the plea and is convicted at the conclusion of trial, the punishment will be more severe than had he/she entered the guilty plea.

Plea negotiations are discussions between the defense attorney and prosecutor in attempt to resolve a case through some form of plea. A negotiated plea is a plea deal that has been reached and agreed upon by the Defendant, his/her attorney, and the State (prosecutor). Most judges will approve a “negotiated plea” by all parties. However, if the judge indicates that he/she will not accept the plea as negotiated, then the Defendant has the right to withdraw his/her guilty plea prior to sentencing.

A non-negotiated plea (aka “Blind Plea”) is a plea in which the defense and the State (prosecutor) have not reached an agreement as to the punishment upon the entry of a guilty plea. In this instance, the State will request the resolution they are seeking. The defense will then ask the judge to impose a different resolution. The judge will then sentence the Defendant as he/she sees fit.

After the arraignment, unless there is a motions calendar, the next court appearance will typically be the “trial calendar call” or actual trial date for those Defendants who entered a plea of “not guilty” at the arraignment. A bench trial (also known as a “non-jury trial”), is a trial without a jury where the judge alone determines the guilt or innocence; whereby, a jury trial is a trial in which six (6) jurors in State Court or twelve (12) jurors in Superior Court determine the guilt or innocence of the accused. For a conviction, all jurors must be unanimous.

Copyright (c) 2013 VANJOHNSON LAW FIRM, LLC