Criminal Proceedings

15.1 Bail in criminal cases. (A) Misdemeanor cases. Bail in misdemeanor cases shall be set as provided in OCGA §§ 17-6-1; 17-6-1.1; and 17-6-2. (B) Categories of bail. The court may set bail which may be secured by: 1. Cash—by a deposit with the clerk, or by internal procedure of an amount equal to the required cash bail; or 2. Property — by real estate located within the State of Georgia with unencumbered equity, not exempted, owned by the accused or surety, as approved by the Sheriff of the county where the property is located; or 3. Recognizance — in the discretion of the court; or 4. Professional—by a professional bail bondsman authorized by the sheriff and in compliance with the rules and regulations for execution of a surety bail bond. (C) Conditions and restrictions by court. Bail may be conditioned upon such other specified and reasonable conditions as the court may consider just and proper. The court may restrict the type of security permitted for the bond although the local governing body shall determine what sureties are acceptable when a surety bond is permitted. (D) Amendment of bail. The probate court has the authority to amend any bail previously authorized. (E) Bail on bind over or jury demand. Whenever a probate court has set bail on cases that are bound over to another court for any reason, the bond shall be transferred as required by law. 15.2 Maintenance of criminal evidence. A clerk or the court reporter, in possession of documents, electronic documents, audio and video recordings of whatever form, exhibits, and other material objects or any other items 37 admitted as evidence in a criminal case shall, if such items are separated from the original case file, maintain a log or inventory of all such items with the case number, party names, descriptions of the items, the name and official position of the custodian, and the location of the storage of the items. Unless retained in the original case file, all such items admitted as evidence shall be identified or tagged by a clerk or court reporter with the case number and the exhibit number and be recorded in the log or inventory. Within thirty (30) days after disposition of the case, the court reporter, if in possession of items admitted into evidence, shall transfer such items of evidence along with the evidence log or inventory to a clerk of the originating court. A clerk shall update the log or inventory to show the current custodian and the location of the evidence. Dangerous or contraband items shall be transferred to the sheriff or other appropriate law enforcement agency along with a copy of the log or inventory. The sheriff or other law enforcement agency shall acknowledge the transfer with a signed receipt and the receipt shall be retained with the log or inventory created and maintained by a clerk. A clerk and the sheriff or other law enforcement agency shall each maintain a log or inventory of such items of evidence. In all cases, the court reporter shall be granted the right of access to such items of evidence necessary to complete the transcript of the case. In any case in which no court reporter was retained, a clerk shall keep and store the evidence or ensure that it is maintained in an appropriate location. Evidence in the possession of a clerk or court reporter, during court proceeding, shall be maintained in accordance with the provisions of OCGA § 17-5-55 and other applicable law. The designated custodian shall be responsible for recording on the evidence log or inventory the name of the counsel or party, the date, and the purpose for the release of any such items of evidence. Subsequent to admission of any item into evidence by the court, no substitution for the item admitted into evidence shall be made except by leave of the court. Any counsel or party seeking to make a substitution for admitted evidence after the close of evidence shall file a motion for an order authorizing such substitution. Upon granting of an order for substitution, the order shall be entered into the log or inventory. The log or inventory of any evidence separated from the original case file shall be maintained in the original case file. Upon the expiration of the time for the filing of an appeal during which no motion for new trial or appeal has been filed by any party, a clerk, court reporter, sheriff or other law enforcement agency may, and shall upon written request, return any item of admitted evidence to the counsel or party who tendered the same; provided, however, that no item which is contraband or illegal to possess in the state of Georgia shall be returned to any counsel or party, and all such items shall, upon the expiration of the time for the filing of an appeal during which no motion for new trial or appeal has been filed by any party, be delivered over to the sheriff of the county for appropriate disposition. Upon the expiration of the time for the filing of an appeal during which no motion for new trial or appeal has been filed by any party, a clerk, court reporter, sheriff or other law enforcement agency may notify in writing the counsel or party who tendered any admitted evidence in the possession of such clerk, court reporter, sheriff or law enforcement agency, to retrieve such item(s) within thirty (30) days of the written notice, and, upon the failure of the counsel or party to retrieve same within such thirty (30) days, a clerk, court reporter, sheriff or law enforcement agency may dispose of the item(s). 38 15.3 Arraignment. (A) Calendar. The judge or the judge’s designee shall set the time of arraignment unless arraignment is waived either by the defendant or by operation of law. Notice of the date, time, and place of arraignment shall be delivered to the clerk and sent to attorneys of record, defendants, and bondsmen. (B) Call for arraignment. Before arraignment, the court shall inquire whether the defendant is represented by counsel and, if not, inquire into the defendant’s desires and financial circumstances. If the defendant desires an attorney and is indigent, the court shall authorize the immediate appointment of counsel. Upon the call of the case for arraignment, the defendant or the attorney for the defendant shall answer whether the defendant pleads guilty or not guilty or desires to enter a plea of nolo contendere to the offense or offenses charged; a plea of not guilty shall constitute a joining of the issue. 15.4 Motions, demurrers, special pleas, etc. (A) Time for filing. All motions, demurrers, and special pleas shall be made and filed at or before the time set by law, unless time therefor is extended by the judge in writing prior to trial. (B) Time for hearing. All such motions, demurrers, special pleas and notices shall be heard and considered at such time, date, and place as set by the judge. Generally, such will be heard at or after the time of arraignment and prior to the time at which such case is scheduled for trial. (C) Notice of intention of defense to raise issue of insanity, mental illness, or intellectual disability. Uniform Superior Court Rules 31.4 and 31.5, as amended from time to time, and as applicable to probate courts, are hereby adopted verbatim. 15.5 Criminal trial calendar. (A) Calendar preparation. All cases shall be set for trial within a reasonable time after arraignment. The judge or the judge's designee shall prepare a trial calendar, shall deliver a copy thereof to the clerk, and shall give notice in person or by mail to each counsel of record, the bondsman (if any) and the defendant at the last address indicated in court records, not less than seven (7) days before the trial date. The calendar shall list the dates that cases are set for trial, the cases to be tried at that session of court, the case numbers, the names of the defendants and the names of the defense counsel. (B) Removal from calendar. No case shall be postponed or removed from the calendar except by the judge. 39 15.6 Pleas. 15.6.1 Alternatives. (A) A defendant may plead guilty, not guilty, or in the discretion of the judge, nolo contendere. A plea of guilty or nolo contendere should be received only from the defendant personally in open court, except when the defendant is a corporation, in which case the plea may be entered by counsel or a corporate officer. In misdemeanor cases, upon the request of a defendant who has made, in writing, a knowing, intelligent and voluntary waiver of his right to be present, the court may accept a plea of guilty or nolo contendere in absentia. (B) A defendant may plead nolo contendere only with the consent of the judge. Such a plea should be accepted by the judge only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. Procedurally, a plea of nolo contendere should be handled under these rules in a manner similar to a plea of guilty. 15.6.2 Aid of counsel -- time for deliberation. (A) A defendant shall not be called upon to plead before having an opportunity to retain counsel, or if defendant is eligible for appointment of counsel, until counsel has been appointed or right to counsel waived. A defendant with counsel shall not be required to enter a plea if counsel makes a reasonable request for additional time to represent the defendant's interest, or if the defendant has not had a reasonable time to consult with counsel. (B) A defendant without counsel should not be called upon to plead to any offense without having had a reasonable time to consider this decision. When a defendant without counsel tenders a plea of guilty or nolo contendere to an offense, the court should not accept the plea unless it is reaffirmed by the defendant after a reasonable time for deliberation, following the advice from the court required in Rule 15.6.8. 15.6.3 Propriety of plea discussions and plea agreements. (A) In cases in which it appears that the interests of the public in the effective administration of criminal justice (as stated in Rule 15.6.6) would thereby be served, the prosecuting attorney may engage in plea discussions for the purpose of reaching a plea agreement. The prosecuting attorney should engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when the defendant is not eligible for or does not desire appointment of counsel and has not retained counsel. (B) The prosecuting attorney, in reaching a plea agreement, may agree to one or more of the following, as dictated by the circumstances of the individual case: 1. To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or nolo contendere; 2. To seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to defendant's conduct; or 3. To seek or not to oppose dismissal of other charges or potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere. 40 15.6.4 Attorney-client relationship. (A) Defense counsel should conclude a plea agreement only with the consent of the defendant, and should ensure that the decision to enter or not enter a plea of guilty or nolo contendere is ultimately made by the defendant. (B) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and of considerations deemed important by him in reaching a decision. 15.6.5 Responsibilities of the trial judge. (A) The trial judge should not participate in plea discussions. (B) If a tentative plea agreement has been reached, upon request of the parties, the trial judge may permit the parties to disclose the tentative agreement and the reasons therefor in advance of the time for the tendering of the plea. The judge may then indicate to the prosecuting attorney and defense counsel whether the judge will likely concur in the proposed disposition if the information developed in the plea hearing or presented in the pre-sentence report is consistent with the representations made by the parties. If the trial judge concurs but the final disposition differs from that contemplated by the plea agreement, then the judge shall state for the record what information in the pre-sentence report or hearing contributed to the decision not to sentence in accordance with the plea agreement. (C) When a plea of guilty or nolo contendere is tendered or received as a result of a plea agreement, the trial judge should give the agreement due consideration, but notwithstanding its existence, must reach an independent decision on whether to grant charge or sentence leniency under the principles set forth in Rule 15.6.6. 15.6.6 Consideration of plea in final disposition. (A) It is proper for the judge to grant charge or sentence leniency to defendants who enter pleas of guilty or nolo contendere when the interests of the public in the effective administration of criminal justice are thereby served. Among the considerations which are appropriate in determining this question are: 1. That the defendant by entering a plea has aided in ensuring the prompt and certain application of correctional measures; 2. That the defendant has acknowledged guilt and shown a willingness to assume responsibility for conduct; 3. That the leniency will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction; 4. That the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial; 5. That the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct; 6. That the defendant by entering a plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders. 41 (B) The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove the defendant's guilt at trial rather than to enter a plea of guilty or nolo contendere. 15.6.7 Determining voluntariness of plea. The judge shall not accept a plea of guilty or nolo contendere without first determining, on the record, that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the judge should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence leniency which must be approved by the judge, the judge must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the judge. The judge should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea. 15.6.8 Defendant to be informed. The judge should not accept a plea of guilty or nolo contendere from a defendant without first: (A) Determining on the record that the defendant understands the nature of the charge(s); (B) Informing the defendant on the record that by entering a plea of guilty or nolo contendere one waives: 1. The right to trial by jury; 2. The presumption of innocence; 3. The right to confront witnesses against oneself; 4. The right to subpoena witnesses; 5. The right to testify and to offer other evidence; 6. The right to assistance of counsel during trial; 7. The right not to incriminate oneself; and that by pleading not guilty or remaining silent and not entering a plea, one obtains a jury trial; and (C) Informing the defendant on the record: 1. Of the terms of any negotiated plea; 2. That a plea of guilty may have an impact on his immigration status if the defendant is not a citizen of the United States; 3. Of the maximum possible sentence on the charge, including that possible from consecutive sentences and enhanced sentences where provided by law; and/or 4. Of the mandatory minimum sentence, if any, on the charge. This information may be developed by questions from the judge, the district attorney or the defense attorney, or a combination of any of these. 15.6.9 Determining accuracy of plea. Notwithstanding the acceptance of a plea of guilty, judgment should not be entered upon such plea without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea. 42 15.6.10 Stating intention to reject the plea agreement. If the trial court intends to reject the plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement; (2) the trial court intends to reject the plea agreement presently before it; (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement; and (4) that the defendant may then withdraw his guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced. 15.6.11 Record of proceedings. (A) A verbatim record, consisting of a mechanical recording and a contemporaneous paper record of the proceedings at which a defendant enters a plea of guilty or nolo contendere shall be made and preserved for a minimum of two years. (B) A record of proceedings should include: 1. The inquiry into the voluntariness of the plea (as required in Rule 15.6.7); 2. The advice to the defendant (as required in Rule 15.6.8); 3. The inquiry into the accuracy of the plea (as required in Rule 15.6.9); and 4. The notice to the defendant that the trial court intends to reject the plea agreement and the defendant’s right to withdraw the guilty plea before sentence is pronounced. 15.6.12 Plea withdrawal. (A) After sentence is pronounced, the judge should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice. (B) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty or nolo contendere as a matter of right once sentence has been pronounced by the judge. 15.7 Dockets. (A) Docket categories. Each probate court shall keep a docket for criminal cases and arrests, and a separate docket for all other actions. (B) Time of docketing. Actions shall be entered by the clerk, deputy clerk, or judge in the proper docket immediately or within a reasonable period after being received in the clerk's office. 15.8 Initial appearance/commitment hearings. (A) Initial appearance hearing. As soon as is reasonably practicable following any arrest but not later than forty-eight (48) hours if the arrest was without a warrant, or seventy-two (72) hours following an arrest with a warrant, unless the accused has made bond in the meantime, the arresting officer or other law enforcement officer having custody of the accused shall present the accused in person before a judge or other judicial officer for first appearance. At the first appearance, the judge or judicial officer shall: 1. Inform the accused of the charges; 43 2. Inform the accused that he has a right to remain silent, that any statement made may be used against him, and that he has the right to the presence and advice of an attorney, either retained or appointed; 3. Determine whether or not the accused desires and is in need of an appointed attorney and, if appropriate, advise the accused of the necessity for filing a written application; 4. Inform the accused of his right to a commitment hearing, unless the first appearance covers the commitment hearing issues, and inform the accused that giving a bond shall be a waiver of the right to a commitment hearing; 5. In the case of a warrantless arrest, make a fair and reliable determination of the probable cause for the arrest unless a warrant has been issued before the first appearance; 6. Inform the accused of the right to a trial by jury; 7. Inform the accused that if he desires to waive these rights and plead guilty, then the accused shall so notify the judge or the law officer having custody, who shall in turn notify the judge; 8. Set the amount of bail. (B) Commitment hearing. 1. A judge, in his or her discretion, may hold a commitment hearing even though the defendant has posted a bail bond. 2. At the commitment hearing by the court of inquiry, the judge or judicial officer shall perform the following duties: (a) Explain the probable cause purpose of the hearing; (b) Repeat to the accused the rights explained at the first appearance as listed in Rule 15.8 (A) above; (c) Determine whether the accused intends to plead guilty, nolo contendere, or not guilty, or waives the commitment hearing; (d) If the accused intends to plead guilty or waives the hearing, if applicable, the court shall immediately bind the entire case over to the court having jurisdiction of the most serious offense charged; (e) If the accused pleads “not guilty,” the court shall immediately proceed to conduct the commitment evidentiary hearing unless, for good cause, the hearing is continued to a later scheduled date; (f) Cause an accurate record to be made of the testimony and proceeding by a reliable method; (g) The judicial officer, if applicable, shall bind the entire case over to the court having jurisdiction of the most serious offense for which probable cause has been shown by sufficient evidence and dismiss any charge for which probable cause has not been shown; (h) On each case which is bound over, a memorandum of the commitment shall be entered on the warrant or accusation by the judicial officer. The warrant, accusation, bail bond, and all other papers pertaining to the case shall be forwarded to the clerk of the appropriate court having jurisdiction over the offense. Each bail bond shall contain the full name, telephone number, residence, business and mailing address(es) of the accused and any surety; (i) A copy of the record of any testimony and the proceedings of the first appearance and the commitment hearing shall be provided to the proper prosecuting officer and to the accused upon payment of the reasonable cost for preparation of the record; 44 (j) A judicial officer, conducting a commitment hearing, is without jurisdiction to make final disposition of the case or cases at the hearing by imposing any fine or punishment. 3. At the commitment hearing, the following procedures shall be utilized: (a) The rules of evidence shall apply except that hearsay may be allowed; (b) The prosecuting entity shall have the burden of proving probable cause; and may be represented by a law enforcement officer, a district attorney, a solicitor, or otherwise as is customary in that court; (c) The accused may be represented by an attorney or may appear pro se; and (d) The accused shall be permitted to introduce evidence. 15.9 Appointment of counsel for indigent defendants. The probate court shall have a procedure and forms consistent with applicable law in order to determine indigence and to appoint counsel to defendants who apply and qualify for appointed counsel. The applications shall be available through the clerk. 45