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title-17•Title 17 — Criminal Procedure
Official Code of Georgia Annotated — Title 17. Criminal Procedure
Snapshot of the Georgia code as mirrored by FindLaw, current as of 2024-03-28.
(a) Unless otherwise provided by law or by order of the court, every pleading subsequent to the entry of the initial indictment or accusation upon which the defendant is to be tried; every order not entered in open court; every written motion, unless it is one as to which a hearing ex parte is authorized; and every written notice, demand, and similar paper shall be served upon each party.
(b)(1) Where service is required to be made, the service shall be made upon the party's attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court.
(2) As used in this subsection, delivering a copy means:
(A) Handing it to the attorney or to the party;
(B) Leaving it at his office with his clerk or other person in charge thereof; or
(C) If the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
(3) Service by mail shall be deemed complete upon mailing.
(c) All original papers, copies of which are required to be served upon parties, shall be filed with the court either before service or immediately thereafter.
(d) The filing of pleadings and other papers with the court shall be made by filing them with the clerk of the court unless the judge permits the papers to be filed with him, in which event he shall note thereon the filing date and transmit them to the office of the clerk.
(e)(1) Proof of service may be made by certificate of an attorney or of his employee, written admission, affidavit, or other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service.
(2) When an attorney executes a certificate, which shall be attached to the original of the paper to be served, certifying as to the service thereof, the certificate shall be taken as prima-facie proof of such service.
(3) The certificate of service provided for in this subsection shall read substantially as follows:
--Certificate of Service--
I do certify that (copy) (copies) hereof have been furnished to (here insert name or names) by (delivery) (mail) this _____ day of _____, _____.
| | _________________________________________________ | | --- | --- | | | Attorney |
A “penal action” is an action allowed in pursuance of public justice under particular laws. If no special officer is authorized to be the plaintiff therein, the state, the Governor, the Attorney General, or the prosecuting attorney may be the plaintiff.
The mistake or misprision of a clerk or other ministerial officer shall in no case work to the injury of a party where by amendment justice may be promoted.
Any judgment, verdict, rule, or order of court which may have been obtained or entered shall be set aside and be of no effect if it appears that the same was entered in consequence of corrupt and willful perjury. It shall be the duty of the court in which the verdict, judgment, rule, or order was obtained or entered to cause the same to be vacated upon motion and notice to the adverse party; but it shall not be lawful for the court to do so unless the person charged with perjury shall have been duly convicted thereof and unless it appears to the court that the verdict, judgment, rule, or order could not have been obtained and entered without the evidence of the perjured person, saving always to third persons innocent of such perjury the rights which they may lawfully have acquired under the verdict, judgment, rule, or order before the same shall have been actually vacated.
(a) It is the policy of this state to exercise its jurisdiction over crime and persons charged with the commission of crime to the fullest extent allowable under, and consistent with, the Constitution of this state and the Constitution of the United States.
(b) Pursuant to this policy, a person shall be subject to prosecution in this state for a crime which he commits, while either within or outside the state, by his own conduct or that of another for which he is legally accountable, if:
(1) The crime is committed either wholly or partly within the state;
(2) The conduct outside the state constitutes an attempt to commit a crime within the state; or
(3) The conduct within the state constitutes an attempt to commit in another jurisdiction a crime under the laws of both this state and the other jurisdiction.
(c) A crime is committed partly within this state if either the conduct which is an element of the crime or the result which is such an element occurs within the state. In homicide, the “result” is either the act which causes death or the death itself; and, if the body of a homicide victim is found within this state, the death is presumed to have occurred within the state.
(d) A crime which is based on an omission to perform a duty imposed by the law of this state is committed within the state, regardless of the location of the accused at the time of the omission.
(a) In general. Criminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.
(b) Crime committed on boundary line of two counties. If a crime is committed on, or immediately adjacent to, the boundary line between two counties, the crime shall be considered as having been committed in either county.
(c) Criminal homicide. Criminal homicide shall be considered as having been committed in the county in which the cause of death was inflicted. If it cannot be determined in which county the cause of death was inflicted, it shall be considered that it was inflicted in the county in which the death occurred. If a dead body is discovered in this state and it cannot be readily determined in what county the cause of death was inflicted, it shall be considered that the cause of death was inflicted in the county in which the dead body was discovered.
(d) Crime commenced outside the state. If the commission of a crime under the laws of this state commenced outside the state is consummated within this state, the crime shall be considered as having been committed in the county where it is consummated.
(e) Crime committed while in transit. If a crime is committed upon any railroad car, vehicle, watercraft, or aircraft traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the railroad car, vehicle, watercraft, or aircraft has traveled.
(f) Crime committed on water boundaries of two counties. Whenever a stream or body of water is the boundary between two counties, the jurisdiction of each county shall extend to the center of the main channel of the stream or the center of the body of water; and, if a crime is committed on the stream or body of water and it cannot be readily determined in which county the crime was committed, the crime shall be considered as having been committed in either county.
(g) Crime committed on water boundaries of two states. Whenever a crime is committed on any river or body of water which forms a boundary between this state and another state, the accused shall be tried in the county of this state which is situated opposite the point where the crime is committed. If it cannot be readily determined on which side of the line a crime was committed between two counties which border the river or body of water, the crime shall be considered as having been committed in either county.
(h) Crime in more than one county. If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.
(i) Cumulative effect of Code section. This Code section is cumulative and shall not supersede venue provisions found in other parts of this Code.
This state claims jurisdiction of an offense committed on any of her boundary lines with other states for the county bordering on that part of the line where the offense was committed and, if doubtful as to which of two counties as set forth in subsection (g) of Code Section 17-2-2, for either county, and will proceed to arrest, indict, try, and punish unless the other state makes a demand for the accused person as a fugitive from justice, in which event the progress of the case shall be suspended by order of the Governor until the question of jurisdiction is settled.
(a) A defendant arrested, held, or present in a county other than that in which an indictment or accusation is pending against that defendant may state in writing a wish to plead guilty, guilty but mentally ill, guilty but with intellectual disability, or nolo contendere; to waive trial in the county in which the indictment or accusation is pending; and to consent to disposition of the case in the county in which the defendant was arrested, held, or present, subject to the approval of the prosecuting attorney for each county. Upon receipt of the defendant's statement and the written approval of the prosecuting attorney for each county, the clerk of the court in which the indictment or accusation is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the county in which the defendant was arrested, held, or present, and the prosecution shall continue in that county.
(b) A defendant arrested, held, or present in a county other than the county in which a complaint or arrest warrant is pending against that defendant may state in writing a wish to plead guilty, guilty but mentally ill, guilty but with intellectual disability, or nolo contendere; to waive venue and trial in the county in which the complaint or warrant was issued; and to consent to disposition of the case in the county in which the defendant was arrested, held, or present, subject to the approval of the prosecuting attorney for each county. Upon receipt of the defendant's statement and the written approval of the prosecuting attorney for each county, the clerk of the court in which the complaint or arrest warrant is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the county in which the defendant was arrested, held, or present, and the prosecution shall continue in that county.
(c) If after the proceeding has been transferred pursuant to subsection (a) or (b) of this Code section the defendant pleads not guilty or not guilty by reason of insanity, the clerk shall return the papers to the court in which the prosecution was commenced and the proceeding shall be restored to the docket of that court. A defendant's statement that the defendant wishes to plead guilty, guilty but mentally ill, guilty but with intellectual disability, or nolo contendere shall not be used against the defendant.
(a) A prosecution for murder may be commenced at any time.
(b) Except as otherwise provided in Code Section 17-3-2.1, prosecution for other crimes punishable by death or life imprisonment shall be commenced within seven years after the commission of the crime except as provided by subsection (d) of this Code section; provided, however, that prosecution for the crime of forcible rape shall be commenced within 15 years after the commission of the crime.
(c) Except as otherwise provided in Code Section 17-3-2.1, prosecution for felonies other than those specified in subsections (a), (b), and (d) of this Code section shall be commenced within four years after the commission of the crime, provided that prosecution for felonies committed against victims who are at the time of the commission of the offense under the age of 18 years shall be commenced within seven years after the commission of the crime.
(d) A prosecution for the following offenses may be commenced at any time when deoxyribonucleic acid (DNA) evidence is used to establish the identity of the accused:
(1) Armed robbery, as defined in Code Section 16-8-41;
(2) Kidnapping, as defined in Code Section 16-5-40;
(3) Rape, as defined in Code Section 16-6-1;
(4) Aggravated child molestation, as defined in Code Section 16-6-4;
(5) Aggravated sodomy, as defined in Code Section 16-6-2; or
(6) Aggravated sexual battery, as defined in Code Section 16-6-22.2;
provided, however, that a sufficient portion of the physical evidence tested for DNA is preserved and available for testing by the accused and provided, further, that if the DNA evidence does not establish the identity of the accused, the limitation on prosecution shall be as provided in subsections (b) and (c) of this Code section.
(e) Prosecution for misdemeanors shall be commenced within two years after the commission of the crime.
The period within which a prosecution must be commenced under Code Section 17-3-1 or other applicable statute does not include any period in which:
(1) The accused is not usually and publicly a resident within this state;
(2) The person committing the crime is unknown or the crime is unknown;
(3) The accused is a government officer or employee and the crime charged is theft by conversion of public property while such an officer or employee; or
(4) The accused is a guardian or trustee and the crime charged is theft by conversion of property of the ward or beneficiary.
(a) For crimes committed during the period beginning on July 1, 1992, and ending on June 30, 2012, if the victim of a violation of:
(1) Cruelty to children, as defined in Code Section 16-5-70;
(2) Rape, as defined in Code Section 16-6-1;
(3) Sodomy or aggravated sodomy, as defined in Code Section 16-6-2;
(4) Statutory rape, as defined in Code Section 16-6-3;
(5) Child molestation or aggravated child molestation, as defined in Code Section 16-6-4;
(6) Enticing a child for indecent purposes, as defined in Code Section 16-6-5; or
(7) Incest, as defined in Code Section 16-6-22,
is under 16 years of age on the date of the violation, the applicable period within which a prosecution shall be commenced under Code Section 17-3-1 or other applicable statute shall not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency, prosecuting attorney, or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the appropriate prosecuting attorney.
(b) For crimes committed on and after July 1, 2012, if the victim of a violation of:
(1) Trafficking a person for sexual servitude, as defined in Code Section 16-5-46;
(2) Cruelty to children in the first degree, as defined in Code Section 16-5-70;
(3) Rape, as defined in Code Section 16-6-1;
(4) Aggravated sodomy, as defined in Code Section 16-6-2;
(5) Child molestation or aggravated child molestation, as defined in Code Section 16-6-4;
(6) Enticing a child for indecent purposes, as defined in Code Section 16-6-5; or
(7) Incest, as defined in Code Section 16-6-22,
is under 16 years of age on the date of the violation and the violation is not subject to punishment as provided in paragraph (2) of subsection (b) of Code Section 16-6-4, paragraph (2) of subsection (d) of Code Section 16-6-4, or subsection (c) of Code Section 16-6-5, a prosecution may be commenced at any time.
In addition to any periods excluded pursuant to Code Section 17-3-2, if the victim is a person who is 65 years of age or older, the applicable period within which a prosecution must be commenced under Code Section 17-3-1 or other applicable statute shall not begin to run until the violation is reported to or discovered by a law enforcement agency, prosecuting attorney, or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the appropriate prosecuting attorney. Except for prosecutions for crimes for which the law provides a statute of limitations longer than 15 years, prosecution shall not commence more than 15 years after the commission of the crime.
If an indictment is found within the time provided for in Code Section 17-3-1 or 17-3-2, or other applicable statute, and is quashed or a nolle prosequi entered, the limitation shall be extended six months from the time the first indictment is quashed or the nolle prosequi entered.
An actual touching of a person with a hand is not essential to constitute a valid arrest. If the person voluntarily submits to being considered under arrest or yields on condition of being allowed his freedom of locomotion, under the discretion of the officer, the arrest is complete.
The members of the organized militia or military forces shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at drills, parades, meetings, encampments, and the election of officers and going to, during, and returning from the performance of any active duty as such members.
In order to arrest under a warrant charging a crime, the officer may break open the door of any house where the offender is concealed.
(a)(1) An arrest for a crime may be made by a law enforcement officer:
(A) Under a warrant; or
(B) Without a warrant if:
(i) The offense is committed in such officer's presence or within such officer's immediate knowledge;
(ii) The offender is endeavoring to escape;
(iii) The officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed;
(iv) The officer has probable cause to believe that the offender has violated a criminal family violence order, as defined in Code Section 16-5-95; provided, however, that such officer shall not have any prior or current familial relationship with the alleged victim or the offender;
(v) The officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult, who shall be for the purposes of this subsection a person 18 years old or older who is unable to protect himself or herself from physical or mental abuse because of a physical or mental impairment; or
(vi) For other cause there is likely to be failure of justice for want of a judicial officer to issue a warrant.
(2) Except where otherwise provided by law with respect to a law enforcement officer's jurisdictional duties and limitations, a law enforcement officer may make an arrest for an offense outside of the jurisdiction of the law enforcement agency by which he or she is employed without a warrant:
(A) If the offense is committed in such officer's presence or within such officer's immediate knowledge;
(B) When in immediate pursuit of an offender for an offense committed within the jurisdiction of the law enforcement agency that employs such law enforcement officer; or
(C) While aiding or assisting another law enforcement officer in the jurisdiction of the law enforcement agency employing such other law enforcement officer.
(3) Nothing in paragraph (2) of this subsection shall be construed as limiting sheriffs or deputy sheriffs in the performance of the duties and responsibilities imposed on them by the Constitution and laws of this state.
(b) Sheriffs and peace officers who are appointed or employed in conformity with Chapter 8 of Title 35 may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm. Nothing in this Code section shall be construed so as to restrict such sheriffs or peace officers from the use of such reasonable nondeadly force as may be necessary to apprehend and arrest a suspected felon or misdemeanant.
(c) Nothing in this Code section shall be construed so as to restrict the use of deadly force by employees of state and county correctional institutions, jails, and other places of lawful confinement or by peace officers of any agency in the State of Georgia when reasonably necessary to prevent escapes or apprehend escapees from such institutions.
(d) No law enforcement agency of this state or of any political subdivision of this state shall adopt or promulgate any rule, regulation, or policy which prohibits a peace officer from using that degree of force to apprehend a suspected felon which is allowed by the statutory and case law of this state.
(e) Each peace officer shall be provided with a copy of this Code section. Training regarding elder abuse, abuse of vulnerable adults, and the requirements of this Code section should be offered as part of at least one in-service training program each year conducted by or on behalf of each law enforcement department and agency in this state.
(f) A nuclear power facility security officer, including a contract security officer, employed by a federally licensed nuclear power facility or licensee thereof for the purpose of securing that facility shall have the authority to:
(1) Threaten or use force against another in defense of a federally licensed nuclear power facility and the persons therein as provided for under Code Sections 16-3-21 and 16-3-23;
(2) Search any person on the premises of the nuclear power facility or the properties adjacent to the facility if the facility is under imminent threat or danger pursuant to a written agreement entered into with the local enforcement agency having jurisdiction over the facility for the purpose of determining if such person possesses unauthorized weapons, explosives, or other similarly prohibited material; provided, however, that if such person objects to any search, he or she shall be detained as provided in paragraph (3) of this subsection or shall be required to immediately vacate the premises. Any person refusing to submit to a search and refusing to vacate the premises of a facility upon the request of a security officer as provided for in this Code section shall be guilty of a misdemeanor; and
(3) In accordance with a nuclear security plan approved by the United States Nuclear Regulatory Commission or other federal agency authorized to regulate nuclear facility security, detain any person located on the premises of a nuclear power facility or on the properties adjacent thereto if the facility is under imminent threat or danger pursuant to a written agreement entered into with the local law enforcement agency having jurisdiction over the facility, where there is reasonable suspicion to believe that such person poses a threat to the security of the nuclear power facility, regardless of whether such prohibited act occurred in the officer's presence. In the event of such detention, the law enforcement agency having jurisdiction over the facility shall be immediately contacted. The detention shall not exceed the amount of time reasonably necessary to allow for law enforcement officers to arrive at the facility.
(a) Whenever a law enforcement officer responds to an incident in which an act of family violence, as defined in Code Section 19-13-1, has been committed, the officer shall not base the decision of whether to arrest and charge a person on the specific consent of the victim or on a request by the victim solely or on consideration of the relationship of the parties. No officer investigating an incident of family violence shall threaten, suggest, or otherwise indicate the arrest of all parties for the purpose of discouraging requests for law enforcement intervention.
(b)(1) As used in this subsection, the term “predominant aggressor” means the individual who poses the most serious, ongoing threat, which may not be the initial aggressor in a specific incident.
(2) When complaints of family violence are received from two or more opposing parties, or if both parties have injuries, the officer shall evaluate each complaint separately to attempt to determine who was the predominant aggressor. Such officer shall not threaten, suggest, or otherwise indicate that all parties will be arrested. If such officer determines that one of the parties was the predominant physical aggressor, that person may be arrested. Such officer shall not be required to arrest any other person believed to have committed an act of family violence during the incident. In determining whether a person is a predominant physical aggressor, an officer shall consider all of the following:
(A) Prior family violence involving either party;
(B) The relative severity of the injuries inflicted on each person, including whether the injuries are offensive versus defensive in nature;
(C) Threats that created the fear of physical injury;
(D) The potential for future injury;
(E) Whether one of the parties acted in self-defense or in defense of a third party;
(F) Prior complaints of family violence; and
(G) Whether the person had reasonable cause to believe he or she was in imminent danger of becoming a victim of any act of family violence.
(c) Whenever a law enforcement officer investigates an incident of family violence, whether or not an arrest is made, the officer shall prepare and submit to the supervisor or other designated person a written report of the incident entitled “Family Violence Report.” Forms for such reports shall be designed and provided by the Georgia Bureau of Investigation. The report shall include the following:
(1) Name of the parties;
(2) Relationship of the parties;
(3) Sex of the parties;
(4) Date of birth of the parties;
(5) Time, place, and date of the incident;
(6) Whether children were involved or whether the act of family violence was committed in the presence of children;
(7) Type and extent of the alleged abuse;
(8) Existence of substance abuse;
(9) Number and types of weapons involved;
(10) Existence of any prior court orders;
(11) Type of police action taken in disposition of case, the reasons for the officer's determination that one party was the predominant physical aggressor, and mitigating circumstances for why an arrest was not made;
(12) Whether the victim was apprised of available remedies and services; and
(13) Any other information that may be pertinent.
(d) The report provided for in subsection (c) of this Code section shall be considered as being made for statistical purposes only and where no arrests are made shall not be subject to the provisions of Article 4 of Chapter 18 of Title 50. However, upon request, a defendant who has been arrested for an act of family violence or the victim shall be entitled to review and copy any report prepared in accordance with this Code section relating to the defendant.
(e) Each police department, including local precincts and county sheriff departments, shall report, according to rules and regulations of the Georgia Crime Information Center, all family violence incidents, both arrests and nonarrests, to the Georgia Bureau of Investigation, which shall compile and analyze statistics of family violence crimes and cause them to be published annually in the Georgia Uniform Crime Reports. An offense shall be counted for each incident reported to the police. A zero shall be reported if no incidents have occurred during the reporting period.
(a) Whenever a law enforcement officer investigates an incident of a crime in which it appears that the defendant intentionally selected any victim or group of victims or any property as the object of the offense because of such victim's or group of victims' actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability, whether or not an arrest is made, the officer shall prepare and submit to the law enforcement officer's supervisor or other designated person a written report of the incident entitled “Bias Crime Report.” Forms for such reports shall be designed and provided by the Georgia Bureau of Investigation. The report shall include:
(1) Names of the parties;
(2) Relationship of the parties;
(3) Sex and gender of the parties;
(4) Race of the parties;
(5) Religion of the parties;
(6) Dates of birth of the parties;
(7) Time, place, and date of the incident;
(8) Whether there is evidence to indicate that the incident occurred because of a person's actual or perceived attributes as specified by subsection (a) of this Code section;
(9) Type and extent of the alleged violation;
(10) Existence of any objects or symbols associated with the terrorizing of persons based upon actual or perceived race, religion, or sex;
(11) Number and types of weapons involved, if any;
(12) Existence of any prior difficulties between the parties;
(13) Type of police action taken in disposition of case;
(14) Whether the victim was apprised of available remedies and services; and
(15) Any other information the officer deems pertinent.
(b) The report provided for in subsection (a) of this Code section shall be considered for statistical purposes only and, where no arrests are made, shall not be subject to the provisions of Article 4 of Chapter 18 of Title 50. However, upon request, a defendant who has been arrested for a criminal violation subject to Code Section 17-10-17 and the victim shall be entitled to review and copy any report prepared in accordance with this Code section relating to the defendant.
(c) Each police department, including local precincts and county sheriff departments, shall report, according to rules and regulations of the Georgia Crime Information Center, all incidents involving alleged criminal violations subject to the provisions of this Code section, both arrests and nonarrests, to the Georgia Bureau of Investigation, which shall compile and analyze statistics of such crimes and cause them to be published annually in the Georgia Uniform Crime Reports. An offense shall be counted for each incident reported to the police. A zero shall be reported if no incidents have occurred during the reporting period.
The arresting officer shall take the arrested person before the most convenient and accessible judicial officer authorized to hear the case unless the arrested person requests otherwise, in which case, if there is no suspicion of improper motive, the arresting officer shall take him before some other judicial officer. An arrested person has no right to select the judicial officer before whom he shall be tried.
No peace officer of this state or of any political subdivision thereof shall be denied the authority to arrest any person because of the race, creed, or national origin of the peace officer nor because of the race, creed, or national origin of the person who is being arrested.
(a)(1) A law enforcement officer may arrest a person accused of violating any law or ordinance enacted by local law governing the operation, licensing, registration, maintenance, or inspection of motor vehicles or violating paragraph (2), (3), or (5) of subsection (a) of Code Section 3-3-23 by the issuance of a citation, provided that such offense is committed in his or her presence or information constituting a basis for such arrest was received by the arresting officer from a law enforcement officer observing such offense being committed, except that, when such offense results in an accident, an investigating officer may issue citations regardless of whether the offense occurred in the presence of a law enforcement officer.
(2) A law enforcement officer may arrest a person accused of any misdemeanor violation of Code Section 16-7-21, 16-8-14, 16-8-14.1, or 16-13-30 by the issuance of a citation, provided that such offense is committed in his or her presence or information constituting a basis for such arrest was received by the arresting officer or an investigating officer from another law enforcement officer or other individual observing or aware of such offense being committed. When an arrest is made for such offense, prior to releasing the accused on citation, the arresting law enforcement officer shall review the accused's criminal record as such is on file with the Federal Bureau of Investigation and the Georgia Crime Information Center within the Georgia Bureau of Investigation and ensure that the accused's fingerprints are obtained.
(3) The arresting officer shall issue a citation to the accused which shall enumerate the specific charges and the date upon which he or she is to appear and answer the charges or a notation that he or she will be later notified of the date upon which he or she is to appear and answer the charges. When an arresting officer makes an arrest concerning the operation of a motor vehicle based on information received from another law enforcement officer who observed the offense being committed, the citation shall list the name of each officer and each officer must be present when the charges against the accused are heard.
(b) If the accused fails to appear as specified in the citation, the judicial officer having jurisdiction of the offense may issue a warrant ordering the apprehension of the accused and commanding that he or she be brought before the court to answer the charge contained within the citation and the charge of his or her failure to appear as required. The accused shall then be allowed to make a reasonable bond to appear on a given date before the court.
(c) Notwithstanding subsection (b) of this Code section, when an accused was issued a citation for a violation of Code Section 16-7-21, 16-8-14, 16-8-14.1, or 16-13-30, and the accused fails to appear as specified in the citation, the judicial officer having jurisdiction of the offense, absent a finding of sufficient excuse to appear at the time and place specified in the citation, shall issue a warrant ordering the apprehension of the accused and commanding that he or she be brought before the court to answer the charge contained within the citation and the charge of his or her failure to appear as required. The accused shall then be allowed to make a reasonable bond to appear on a given date before the court.
Every law enforcement officer is bound to execute the penal warrants given to him to execute. He may summon to his assistance, either in writing or orally, any of the citizens of the neighborhood or county to assist in the execution of such warrants. The acts of the citizens formed as a posse by such officer shall be subject to the same protection and consequences as official acts.
(a) Under a warrant issued by a judicial officer, an arresting officer may, in any county without regard to the residence of the arresting officer, arrest any person charged with a crime. It is the duty of the arresting officer to take the accused, with the warrant under which he was arrested, to the county in which the offense is alleged to have been committed, for examination before any judicial officer of that county.
(b) The county where the offense is alleged to have been committed shall pay the expenses of the arresting officer in taking the arrested person to the county. The arresting officer may hold or imprison the arrested person in a county other than the county in which the offense is alleged to have been committed long enough to enable him to prepare to take the arrested person to the county in which the offense is alleged to have been committed.
(c) Should the county in which the offense is alleged to have been committed be a member of a regional jail authority created under Article 5 of Chapter 4 of Title 42, known as the “Regional Jail Authorities Act,” the arresting officer shall transport the prisoner to the regional jail. The judicial officer of the county in which the offense is alleged to have been committed may conduct the examination of the accused required by subsection (a) of this Code section in the county in which the offense is alleged to have been committed or in facilities available at the regional jail or by audio-visual communication between the two locations and between the accused, the court, the attorneys, and the witnesses.
(a) As provided in subsection (e) of this Code section, a sworn law enforcement officer from a county or municipality in which an offense is alleged to have been committed shall be authorized to transport an arrested person, with the warrant under which such person was arrested, from one jurisdiction to the county or municipality in which the offense is alleged to have been committed for examination before any judicial officer of that county or municipality.
(b) Unless otherwise provided by contract, the agency requesting the transportation of the arrested person pursuant to subsection (a) of this Code section shall be responsible for all costs associated with the transport. Such officer may hold or imprison the arrested person in a jurisdiction other than where the offense is alleged to have been committed long enough to enable such officer to prepare to take the arrested person to the jurisdiction in which the offense is alleged to have been committed.
(c) A sworn law enforcement officer from a county or municipality shall be authorized to transport a prisoner who is lawfully in the custody of such officer to a medical facility, juvenile detention facility as defined in Code Section 49-4A-1, or court appearance outside such county or municipality or to transport such prisoner to a location outside such county or municipality for any lawfully required or necessary purpose.
(d) This Code section shall not be construed to provide any general state-wide police powers or authority for county or municipal law enforcement officers or expand the arrest powers of such officers outside their properly authorized jurisdiction.
(e) Sheriffs and, with the approval of its governing authority, municipal or other law enforcement agency heads are authorized to enter into a contract for the purposes of transporting arrested individuals from the jurisdiction of the arrest to an appropriate detention facility where the alleged crime is to have occurred. In the absence of a written contract between the sheriff and municipal or other law enforcement agency head, the sheriff or his or her designee has the right of first refusal, as evidenced in writing, of transporting persons arrested on a warrant to an appropriate detention facility where the crime is alleged to have occurred. Any responsibility arising as a result of the transportation of an arrested individual as authorized in this Code section shall be that of the agency whose employee is transporting the arrested individual.
Every law enforcement officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial officer within 72 hours after arrest. The accused shall be notified as to when and where the commitment hearing is to be held. An arrested person who is not notified before the hearing of the time and place of the commitment hearing shall be released.
It shall be the duty of all sheriffs, chiefs of police, and the heads of any other law enforcement agencies of this state to obtain, or cause to be obtained, the name, address, and age of each person arrested by law enforcement officers under the supervision of such sheriffs, chiefs of police, or heads of any other law enforcement agencies of this state, when any such person is charged with an offense against the laws of this state, any other state, or the United States. The information shall be placed on appropriate records which each law enforcement agency shall maintain. The records shall be open for public inspection unless otherwise provided by law.
Any arresting officer who advises or encourages the dismissal or settlement of any criminal warrant placed in his hands for execution, either before or after an arrest is made on the warrant, or who procures or encourages the dismissal or settlement of such warrants by threats, duress, intimidation, promises, or any other artifice or means shall be guilty of a misdemeanor.
(a) Any arresting officer who collects or receives any costs or other charges of a prosecutor or defendant in a case made on a state's warrant, or of anyone acting in the interest of either of them, before the warrant is returned to the court to which it is made returnable, shall be guilty of a misdemeanor.
(b) Nothing in this Code section or in Code Section 17-4-28 shall be construed as prohibiting arresting officers from receiving from prosecutors sums of money sufficient to defray their expenses in going beyond the limits of the jurisdiction of such arresting officer to search for or to make the arrest of the accused person.
In the event a hearing impaired person is arrested for any alleged violation of a criminal law of this state, the arresting officer shall comply with the provisions of Article 3 of Chapter 6 of Title 24.
(a) Any judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate may issue a warrant for the arrest of any offender against the penal laws, based on probable cause either on the judge's or officer's own knowledge or on the information of others given to the judge or officer under oath. Any retired judge or judge emeritus of a state court may likewise issue arrest warrants if authorized in writing to do so by an active judge of the state court of the county wherein the warrants are to be issued.
(b)(1) If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in this subsection unless the person accused has been taken into custody by a peace officer or law enforcement officer or except as provided in paragraph (6) of this subsection; provided, however, that a warrant may be denied without the notice required in paragraph (2) of this subsection where the application form and any testimony from the affiant provided at the time of the application do not demonstrate probable cause for issuing a warrant.
(2) Except as otherwise provided in paragraph (6) of this subsection, a warrant application hearing shall be conducted only after attempting to notify the person whose arrest is sought by any means approved by the judge or other officer which is reasonably calculated to apprise such person of the date, time, and location of the hearing.
(3) If the person whose arrest is sought does not appear for the warrant application hearing, the judge or other officer shall proceed to hear the application and shall note on the warrant application that such person is not present.
(4) At the warrant application hearing, the rules of evidence at a commitment hearing shall apply as set forth in paragraph (1) of subsection (d) of Code Section 24-1-2. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge or other officer shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause.
(5) At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge or other officer finds that probable cause exists, the warrant may issue instanter.
(6) Nothing in this subsection shall be construed as prohibiting a judge or other officer from immediately issuing a warrant for the arrest of a person upon application of a person other than a peace officer or law enforcement officer if the judge or other officer determines from the application or other information available to the judge or other officer that:
(A) An immediate or continuing threat exists to the safety or well-being of the affiant or a third party;
(B) The person whose arrest is sought will attempt to evade arrest or otherwise obstruct justice if notice is given;
(C) The person whose arrest is sought is incarcerated or otherwise in the custody of a local, state, or federal law enforcement agency;
(D) The person whose arrest is sought is a fugitive from justice;
(E) The offense for which application for a warrant is made is deposit account fraud under Code Section 16-9-20, and the person whose arrest is sought has previously been served with the ten-day notice as provided in paragraph (2) of subsection (a) of Code Section 16-9-20; or
(F) The offense for which application for the warrant is made consists of an act of family violence as defined in Code Section 19-13-1.
In the event that the judge or officer finds such circumstances justifying dispensing with the requirement of a warrant application hearing, the judge or officer shall note such circumstances on the face of the warrant application.
(7) No warrant shall be quashed nor evidence suppressed because of any irregularity in proceedings conducted pursuant to this subsection not affecting the substantial rights of the accused under the Constitution of this state or of the United States.
(8) Nothing contained in this subsection shall prohibit a judge from denying a warrant based upon the application and testimony heard at the time such application is made without requiring notice to the person whose arrest is sought.
(c) Any warrant for the arrest of a peace officer, law enforcement officer, DFCS case manager, teacher, or school administrator for any offense alleged to have been committed while in the performance of his or her duties may be issued only by a judge of a superior court, a judge of a state court, or a judge of a probate court.
(a) An affidavit made or warrant issued for the arrest of a person who is accused of violating the penal laws of this state shall include, as nearly as practicable, the following facts:
(1) The offense, including the time, date, place of occurrence, against whom the offense was committed, and a statement describing the offense; and
(2) The county in which the offense was committed.
(b) When the offense charged is theft, the affidavit made or warrant issued shall state, in addition to the requirements of subsection (a) of this Code section, the following facts:
(1) Name of the property alleged to have been stolen, with a description thereof, including its value; and
(2) Name of the owner of the property and the person from whose possession such property was taken.
(c) It is the intent of these requirements that the accused person shall be informed of the specific charge against him and of all basic pertinent particulars pertaining thereto.
No judicial officer except a judge of the superior court shall issue a special warrant for arrest returnable only before himself; nor shall any superior court judge issue such warrant outside of his own judicial circuit. If issued outside the judicial circuit, the warrant shall be treated as a general arrest warrant.
The judicial officer issuing a warrant for arrest upon any sufficient grounds may first require the applicant to file a bond, with sufficient sureties, to prosecute the case in the event of a committal.
A warrant for arrest may be issued in any county, though the crime was committed in another county. A warrant, once issued, may be executed in any county without being backed or endorsed by a judicial officer in the county where the warrant is executed.
An affidavit for an arrest warrant substantially complying with the following form shall in all cases be sufficient:
Georgia, _____ County.
Personally came (name of affiant), who on oath says that, to the best of his knowledge and belief, (name of person against whom the warrant is sought) did, on the _____ day of _____, _____, in the county aforesaid, commit the offense of (insert here all information describing offense as required by Code Section 17-4-41) and this affiant makes this affidavit that a warrant may issue for his arrest.
| | _________________________________________________ | | --- | --- | | | (Signature of the affiant) |
Sworn to and subscribed before me, this _____ day of _____, _____.
| | _________________________________________________ | | --- | --- | | | Judicial officer |
An arrest warrant substantially complying with the following form shall in all cases be sufficient:
Georgia, _____ County.
To any sheriff, deputy sheriff, coroner, constable, or marshal of said state--Greetings:
(Name of the affiant) makes oath before me that on the _____ day of _____, in the year _____, in the county aforesaid, (name of person against whom the warrant is sought) did commit the offense of (insert here all information describing offense as required by Code Section 17-4-41). You are therefore commanded to arrest (name of person against whom the warrant is sought) and bring him before me, or some other judicial officer of this state, to be dealt with as the law directs. You will also levy on a sufficiency of the property of (name of person against whom the warrant is sought) to pay the costs in the event of his final conviction. Herein fail not.
| | _________________________________________________ | | --- | --- | | | Judicial officer |
(a) A judge of any court in this state authorized to issue arrest warrants pursuant to Code Section 17-4-40 may, as an alternative to other laws relating to the issuance of arrest warrants, conduct such applications for the issuance of arrest warrants by video conference. The issuance of an arrest warrant by video conference shall be valid irrespective of the physical location of the judge at the time of the video conference, provided that the judge issuing the warrant is authorized by law to issue such warrant.
(b) Arrest warrant applications heard by video conference shall be conducted in a manner to ensure that the judge conducting the hearing has visual and audible contact with all affiants and witnesses giving testimony.
(c) The affiant participating in an arrest warrant application by video conference shall sign the affidavit for an arrest warrant and any related documents by any reasonable means which identifies the affiant, including, but not limited to, his or her typewritten name, signature affixed by electronic stylus, or any other reasonable means which identifies the person signing the affidavit and any related documents. The judge participating in an arrest warrant application by video conference shall sign the affidavit for an arrest warrant, the arrest warrant, and any related documents by any reasonable means which identifies the judge, including, but not limited to, his or her typewritten name, signature affixed by electronic stylus, or any other reasonable means which identifies the judicial officer signing the affidavit and warrant and any related documents. Such authorization shall be deemed to comply with the signature requirements provided for in Code Sections 17-4-45 and 17-4-46.
(d) A judge may also utilize a video conference to conduct hearings relating to the issuance of an initial bond connected with an offense for which an arrest warrant is issued, provided that the setting of such bond is within the jurisdiction of that court.
(e) A judge hearing matters pursuant to this Code section shall administer an oath to any person testifying by means of a video conference.
(a) As used in this article, the terms:
(1) “Food service establishment” shall have the same meaning as provided in Code Section 26-2-370.
(2) “Law enforcement unit” shall have the same meaning as provided in Code Section 35-8-2.
(3) “Owner” means any person or his or her agent or employee who owns or operates a retail establishment or a food service establishment or any business owning personal property located on their own property or on the property of others on which they are conducting their business activities.
(4) “Retail establishment” shall have the same meaning as provided in Code Section 16-7-2.
(b) A private person may detain an individual if such private person is:
(1) An owner of a retail establishment who has reasonable grounds to believe that the individual sought to be detained has committed or attempted to commit the offense of theft by shoplifting as set forth in Code Section 16-8-14, refund fraud as set forth in Code Section 16-8-14.1, or theft by unlawful use of retail sales receipts or Universal Product Code labels as set forth in Code Section 16-8-17;
(2) An owner of a food service establishment who has reasonable grounds to believe that the individual sought to be detained has committed or attempted to commit theft by taking as set forth in Code Section 16-8-2 or theft of services as set forth in Code Section 16-8-5;
(3) An owner of any business entity operating on their own property or on the property of others on which they are doing business who have reasonable grounds to believe that the individual sought to be detained has committed or attempted to commit theft by taking as set forth in Code Section 16-8-2 or theft of services as set forth in Code Section 16-8-5;
(4) A weight inspector under Article 5 of Chapter 2 of Title 35 when needed for purposes of performing his or her duties under such article; or
(5) A licensee or registrant under Chapter 38 of Title 43 when needed in the performance of his or her business conducted in conformance with such chapter.
(c) A private person who detains an individual under this Code section shall either release said individual or, within a reasonable time, contact the law enforcement unit with appropriate jurisdiction. An individual detained by a private person under this Code section who is not released shall be surrendered to a law enforcement officer together with any personal belongings removed from such individual.
(d)(1) Nothing in this subsection shall be construed as limiting or altering any immunity or defense under Article 2 of Chapter 3 of Title 16.
(2) Except in circumstances involving use of force in defense of self or others, involving use of force in defense of a habitation, or involving use of force to prevent the commission of a forcible felony, a person acting pursuant to this Code section shall not use force which is intended or likely to cause great bodily harm or death, but may use reasonable force to the extent that he or she reasonably believes is necessary to detain an individual.
(a) When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within the person's immediate presence for the purpose of:
(1) Protecting the officer from attack;
(2) Preventing the person from escaping;
(3) Discovering or seizing the fruits of the crime for which the person has been arrested; or
(4) Discovering or seizing any instruments, articles, or things which are being used or which may have been used in the commission of the crime for which the person has been arrested.
(b) When the peace officer is in the process of effecting a lawful search, nothing in this Code section shall be construed to preclude him from discovering or seizing any stolen or embezzled property, any item, substance, object, thing, or matter, the possession of which is unlawful, or any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of a crime against the laws of this state.
An inventory of all instruments, articles, or things seized in a search without a search warrant shall be given to the person arrested and a copy thereof delivered to the judicial officer before whom the person arrested is taken. If the person arrested is released without a charge being preferred against him, all instruments, articles, or things seized, other than contraband or stolen property, shall be returned to him upon release.
(a) A search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws or a currently certified peace officer engaged in the course of official duty, whether said officer is employed by a law enforcement unit of:
(1) The state or a political subdivision of the state; or
(2) A university, college, or school.
(b) A search warrant shall not be issued upon the application of a private citizen or for his aid in the enforcement of personal, civil, or property rights.
(a) Upon the written complaint of any certified peace officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws and otherwise as authorized in Code Section 17-5-20 under oath or affirmation, which states facts sufficient to show probable cause that a crime is being committed or has been committed and which particularly describes the place or person, or both, to be searched and things to be seized, any judicial officer authorized to hold a court of inquiry to examine into an arrest of an offender against the penal laws, referred to in this Code section as “judicial officer,” may issue a search warrant for the seizure of the following:
(1) Any instruments, articles, or things, including the private papers of any person, which are designed, intended for use, or which have been used in the commission of the offense in connection with which the warrant is issued;
(2) Any person who has been kidnapped in violation of the laws of this state, who has been kidnapped in another jurisdiction and is now concealed within this state, or any human fetus or human corpse;
(3) Stolen or embezzled property;
(4) Any item, substance, object, thing, or matter, the possession of which is unlawful; or
(5) Any instruments, articles or things, any information or data, and anything that is tangible or intangible, corporeal or incorporeal, visible or invisible evidence of the commission of the crime for which probable cause is shown, other than the private papers of any person.
(b) When the peace officer is in the process of effecting a lawful search, nothing in this Code section shall preclude such officer from discovering or seizing any stolen or embezzled property, any item, substance, object, thing, or matter, the possession of which is unlawful, or any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of a crime against the laws of this state, the United States, or another state. Other personnel, sworn or unsworn, acting under the direction of a peace officer executing a search warrant may assist in the execution of such warrant. While in the process of effecting a lawful arrest or lawful search, nothing in this Code section nor in Code Section 16-11-62 shall be construed to preclude the use of any device, as such term is defined in Code Section 16-11-60, by the peace officer executing the search warrant or other personnel assisting in the execution of such warrant.
(c) Any retired judge or judge emeritus of a state court may issue search warrants as authorized by this Code section if authorized in writing to do so by an active judge of the state court of the county wherein the warrants are to be issued.
(d) Notwithstanding any provisions of Code Section 17-5-20 or other provisions of this Code section to the contrary, with respect to the execution of a search warrant by a certified peace officer employed by a university, college, or school, which search warrant will be executed beyond the arrest jurisdiction of a campus policeman pursuant to Code Section 20-3-72, the execution of such search warrant shall be made jointly by the certified peace officer employed by a university, college, or school and a certified peace officer of a law enforcement unit of the political subdivision wherein the search will be conducted.
(a) A judge of any court in this state authorized to issue search warrants pursuant to Code Section 17-5-21 may, as an alternative to other laws relating to the issuance of search warrants, conduct such applications for the issuance of search warrants by video conference. The issuance of a search warrant by video conference shall be valid irrespective of the physical location of the judge at the time of the video conference, provided that the judge issuing the warrant is authorized by law to issue such warrant.
(b) Search warrant applications heard by video conference shall be conducted in a manner to ensure that the judge conducting the hearing has visual and audible contact with all affiants and witnesses giving testimony.
(c) The affiant participating in a search warrant application by video conference shall sign the affidavit for a search warrant and any related documents by any reasonable means which identifies the affiant, including, but not limited to, his or her typewritten name, signature affixed by electronic stylus, or any other reasonable means which identifies the person signing the affidavit and any related documents. The judge participating in a search warrant application by video conference shall sign the affidavit for a search warrant, the search warrant, and any related documents by any reasonable means which identifies the judge, including, but not limited to, his or her typewritten name, signature affixed by electronic stylus, or any other reasonable means which identifies the judicial officer signing the affidavit and warrant and any related documents. Such applications shall be deemed to be written within the meaning of Code Section 17-5-21. Such authorization shall be deemed to comply with the issuance requirements provided for in Code Section 17-5-22.
(d) A judge hearing matters pursuant to this Code section shall administer an oath to any person testifying by means of a video conference.
(e) A video recording of the application hearing and any documents submitted in conjunction with the application shall be maintained as part of the record.
All warrants shall state the time and date of issuance and are the warrants of the judicial officer issuing the same and not the warrants of the court in which he is then sitting. Such warrants need not bear the seal of the court or clerk thereof. The warrant, the complaint on which the warrant is issued, the affidavit or affidavits supporting the warrant, and the returns shall be filed with the clerk of the court of the judicial officer issuing the same, or with the court if there is no clerk, at the time the warrant has been executed or has been returned “not executed”; provided, however, that the judicial officer shall keep a docket record of all warrants issued by him, and upon issuing any warrant he shall immediately record the same, within a reasonable time, on the docket.
The search warrant shall command the officer directed to execute the same to search the place or person particularly described in the warrant and to seize the instruments, articles, or things particularly described in the search warrant.
The search warrant shall be issued in duplicate and shall be directed for execution to all peace officers of this state. However, the judicial officer may direct the search warrant to be executed by any peace officer named specially therein.
The search warrant shall be executed within ten days from the time of issuance. If the warrant is executed, the duplicate copy shall be left with any person from whom any instruments, articles, or things are seized; or, if no person is available, the copy shall be left in a conspicuous place on the premises from which the instruments, articles, or things were seized. Any search warrant not executed within ten days from the time of issuance shall be void and shall be returned to the court of the judicial officer issuing the same as “not executed.”
The search warrant may be executed at any reasonable time.
All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant if, after verbal notice or an attempt in good faith to give verbal notice by the officer directed to execute the same of his authority and purpose:
(1) He is refused admittance;
(2) The person or persons within the building or property or part thereof refuse to acknowledge and answer the verbal notice or the presence of the person or persons therein is unknown to the officer; or
(3) The building or property or part thereof is not then occupied by any person.
In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time:
(1) To protect himself from attack; or
(2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.
A written return of all instruments, articles, or things seized shall be made without unnecessary delay before the judicial officer named in the warrant or before any court of competent jurisdiction. An inventory of any instruments, articles, or things seized shall be filed with the return and signed under oath by the officer executing the warrant. The judicial officer or court shall, upon request, deliver a copy of the inventory to the persons from whom or from whose premises the instruments, articles, or things were taken and to the applicant for the warrant.
(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property, the possession of which is not otherwise unlawful, and to suppress as evidence anything so obtained on the grounds that:
(1) The search and seizure without a warrant was illegal; or
(2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.
(b) The motion shall be in writing and state facts showing that the search and seizure were unlawful. The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the state. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant in any trial.
(c) The motion shall be made only before a court with jurisdiction to try the offense. If a criminal accusation is filed or if an indictment or special presentment is returned by a grand jury, the motion shall be made only before the court in which the accusation, indictment, or special presentment is filed and pending.
No search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.
(a) As used in this Code section, the term “documentary evidence” includes but is not limited to writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, and papers of any type or description.
(b) Notwithstanding any other provision of law, no search and seizure without a warrant shall be conducted and no search warrant shall be issued for any documentary evidence in the possession of an attorney who is not a criminal suspect, unless the application for the search warrant specifies that the place to be searched is in the possession or custody of an attorney and also shows that there is probable cause to believe that the documentary evidence will be destroyed or secreted in the event a search warrant is not issued. This Code section shall not impair the ability to serve search warrants in cases in which the search is directed against an attorney if there is probable cause to suspect such attorney has committed a crime. This Code section shall not impair the ability to serve subpoenas on nonsuspect attorneys.
(c) In any case in which there is probable cause to believe that documentary evidence will be destroyed or secreted if a search warrant is not issued, no search warrant shall be issued or be executed for any documentary evidence in the possession or custody of an attorney who is not a criminal suspect unless:
(1) At the time the warrant is issued the court shall appoint a special master to accompany the person who will serve the warrant. The special master shall be an attorney who is a member in good standing of the State Bar of Georgia and who has been selected from a list of qualified attorneys maintained by the State Bar of Georgia. Upon service of the warrant, the special master shall inform the party served of the specific items being sought and that the party shall have the opportunity to provide the items requested. If the party, in the judgment of the special master, fails to provide the items requested, the special master shall conduct a search for the items in the areas indicated in the search warrant;
(2) If the party who has been served states that an item or items should not be disclosed, such item or items shall be sealed by the special master and taken to the superior court for a hearing. At the hearing the party whose premises has been searched shall be entitled to raise any issues which may be raised pursuant to Code Section 17-5-30 as well as claims that the item or items are privileged or claims that the item or items are inadmissible because they were obtained in violation of this Code section. Any such hearing shall be held in the superior court;
(3) Any such warrant must, whenever practicable, be served during normal business hours. The law enforcement officer or prosecutor serving the warrant shall not participate in the search but may accompany the special master when the special master is conducting the search;
(4) Any such warrant must be served upon a party who appears to have possession or control of the items sought. If, after reasonable efforts, the party serving the warrant is unable to locate any such person, the special master shall seal and return to the court for determination by the court any items which appear to be privileged;
(5) Any such warrant shall be issued only by the superior court. At the time of applying for such a warrant, the law enforcement officer or prosecutor shall submit a written search plan designed to minimize the intrusiveness of the search. When the warrant is executed, the special master carrying out the search shall have a duty to make reasonable efforts to minimize the intrusiveness of the search.
(d) Notwithstanding any provision of law to the contrary, evidence obtained in violation of this Code section shall be excluded and suppressed from the prosecution's case-in-chief or in rebuttal, and such evidence shall not be admissible either as substantive evidence or for impeachment purposes.
(a) The clerk or person having charge of the property section for any police department, sheriff's office, or other law enforcement agency in this state shall enter in a suitable book a description of every article of property alleged to be stolen, embezzled, or otherwise unlawfully obtained and brought into the office or taken from the person of a prisoner and shall attach a number to each article and make a corresponding entry thereof.
(b)(1) Any person claiming ownership of such allegedly stolen, embezzled, or otherwise unlawfully obtained property may make application to the law enforcement agency for the return of such property. Upon such an application being filed, the clerk or person in charge of the property section shall serve upon the person from whom custody of the property was taken a copy of such application. Such person from whom custody of the property was taken shall have a reasonable opportunity to claim ownership of such property and to request a hearing on forms provided by the person in charge of the property section.
(2) If the person from whom custody of the property was taken fails to assert a claim to such property, upon any applicant furnishing satisfactory proof of ownership of such property and presentation of proper personal identification, the person in charge of the property section may deliver such property to the applicant. The person to whom property is delivered shall sign, under penalty of false swearing, a declaration of ownership, which shall be retained by the person in charge of the property section. Such declaration, absent any other proof of ownership, shall be deemed satisfactory proof of ownership for the purposes of this Code section; provided, however, that, in the case of motor vehicles, trailers, tractors, or motorcycles which are required to be registered with the state revenue commissioner, any such stolen vehicle shall be returned to the person evidencing ownership of such vehicle through a certificate of title, tag receipt, bill of sale, or other such evidence. The stolen vehicle shall be returned to the person evidencing ownership within two days after such person makes application for the return of such vehicle unless a hearing on the ownership of such vehicle is required under this Code section or unless law enforcement needs the stolen vehicle for further criminal investigation purposes. Prior to such delivery, such person in charge of the property section shall make and retain a complete photographic record of such property. Such delivery shall be without prejudice to the state or to the person from whom custody of the property was taken or to any other person who may have a claim against the property.
(3) If the person from whom custody of the property was taken asserts a claim to such property and requests a hearing, the court which examines the charge against the person accused of stealing, embezzling, or otherwise unlawfully obtaining the property, or the court before whom the trial is had for stealing, embezzling, or otherwise unlawfully obtaining the property shall conduct the hearing to determine the ownership of such property.
(4) The provisions of this subsection shall not apply to any contraband or property subject to forfeiture under any provision of law.
(c) Photographs, video tapes, or other identification or analysis of the property involved, duly identified in writing by the law enforcement officer originally taking custody of the property as accurately representing such property, shall be admissible at trial in lieu of the original property.
(d) In the case of unknown or unapprehended defendants or defendants willfully absent from the jurisdiction, the court shall have discretion to appoint a guardian ad litem to represent the interest of the unknown or absent defendants.
(e) Statements made by the defendant or a person representing the defendant at a hearing provided for in subsection (b) of this Code section shall not be admissible for use against the defendant at trial.
Any device which is used as a weapon in the commission of any crime against any person or any attempt to commit any crime against any person, any weapon the possession or carrying of which constitutes a crime or delinquent act, and any weapon for which a person has been convicted of violating Code Section 16-11-126 are declared to be contraband and shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9, notwithstanding the time frames set forth in Code Section 9-16-7.
When a final judgment is entered finding a defendant guilty of the commission or attempted commission of a crime against any person or guilty of the commission of a crime or delinquent act involving the illegal possession or carrying of a weapon, any device which was used as a weapon in the commission of the crime or delinquent act shall be turned over by the person having custody of the weapon or device to the sheriff, chief of police, or other executive officer of the law enforcement agency that originally confiscated the weapon or device when the weapon or device is no longer needed for evidentiary purposes. Within one year after receiving the weapon or device, the sheriff, chief of police, or other executive officer of the law enforcement agency shall return or sell the weapon as provided in Code Section 17-5-54, or if the weapon or device is subject to forfeiture, the procedures set forth in Chapter 16 of Title 9 shall be followed notwithstanding the time frames set forth in Code Section 9-16-7. A state attorney seeking forfeiture under this Code section shall commence civil forfeiture proceedings within 60 days of the entry of a final judgment as contemplated by this Code section; the remaining provisions of Chapter 16 of Title 9 shall be applicable.
(a) After a forfeiture of a device used in a crime, in the event the director of the Division of Archives and History or the commissioner of public safety, in that order or priority, shall desire to receive and retain a device described in Code Section 17-5-51 for historical or instructional purposes of his or her division or department and gives written notice thereof to the sheriff, either prior to the sheriff's advertisement of the device for sale or within ten days thereafter, the sheriff shall forthwith deliver the device to the requesting division or department which shall retain the device for such purposes. A device delivered to either the division or the department in accordance with this Code section shall become the property of the state.
(b) This Code section shall prevail over Code Section 17-5-52.
(a) As used in this Code section, the term:
(1) “Civil forfeiture proceeding” shall have the same meaning as set forth in Code Section 9-16-2.
(2) “Firearm” means any handgun, rifle, shotgun, or similar device or weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.
(3) “Law enforcement agency” means a law enforcement agency of this state or a political subdivision of this state, including the Department of Natural Resources.
(4) “Rightful owner” means a person claiming ownership of property which is the subject of a crime or has been abandoned.
(b) This Code section shall not apply to:
(1) Personal property which is the subject of any civil forfeiture proceeding;
(2) Any property which is the subject of a disposition pursuant to Code Sections 17-5-50 through 17-5-53; and
(3) Any abandoned motor vehicle for which the provisions of Chapter 11 of Title 40 are applicable.
(c)(1) Except as provided in Chapter 16 of Title 9, Code Sections 17-5-55 and 17-5-56, and subsection (b) of this Code section, when a law enforcement agency assumes custody of any personal property which is the subject of a crime or has been abandoned, a disposition of such property shall be made in accordance with the provisions of this Code section.
(2) When a final verdict and judgment is entered finding a defendant guilty of the commission of a crime, any personal property used as evidence in the trial shall be returned to the rightful owner of the property within 30 days following the final judgment; provided, however, that if the judgment is appealed or if the defendant files a motion for a new trial and if photographs, videotapes, or other identification or analysis of the personal property will not be sufficient evidence for the appeal of the case or new trial of the case, such personal property shall be returned to the rightful owner within 30 days of the conclusion of the appeal or new trial, whichever occurs last.
(3) Any person claiming to be a rightful owner of property shall make an application to the entity holding his or her property and shall furnish satisfactory proof of ownership of such property and present personal identification. The person in charge of such property may return such property to the applicant. The person to whom property is delivered shall sign, under penalty of false swearing, a declaration of ownership, which shall be retained by the person in charge of the property. Such declaration, absent any other proof of ownership, shall be deemed satisfactory proof of ownership for the purposes of this Code section; provided, however, that with respect to motor vehicles, paragraph (3) of subsection (b) and subsection (f) of this Code section shall govern the return of motor vehicles.
(4) If more than one person claims ownership of property, a court with jurisdiction over the property shall conduct a hearing to determine the ownership of such property.
(d) After a period of 90 days following the final verdict and judgment, when personal property that is in the custody of a law enforcement agency was used as evidence in a criminal trial or was abandoned, it shall be subject to disposition as provided in subsection (e) of this Code section if the property is not a firearm and as provided in subsection (g) of this Code section if the property is a firearm if it is:
(1) No longer needed in a criminal investigation or for evidentiary purposes in accordance with Code Section 17-5-55 or 17-5-56;
(2) Not claimed pursuant to Code Section 17-5-50; and
(3) Not claimed pursuant to subsection (c) of this Code section.
(e) For any unclaimed personal property that is not a firearm, the sheriff, chief of police, or other executive officer of a law enforcement agency shall make application to the superior court for an order to retain, sell, or discard such property. In the application the officer shall state each item of personal property to be retained, sold, or discarded. Upon the superior court's granting an order for the law enforcement agency to retain such property, the law enforcement agency shall retain such property for official use. Upon the superior court's granting an order which authorizes that the property be discarded, the law enforcement agency shall dispose of the property as other salvage or nonserviceable equipment. Upon the superior court's granting an order for the sale of personal property, the officer shall provide for a notice to be placed once a week for four weeks in the legal organ of the county specifically describing each item and advising possible owners of items of the method of contacting the law enforcement agency; provided, however, that miscellaneous items having an estimated fair market value of $75.00 or less may be advertised or sold, or both, in lots. Such notice shall also stipulate a date, time, and place said items will be placed for public sale if not claimed. Such notice shall also stipulate whether said items or groups of items are to be sold in blocks, by lot numbers, by entire list of items, or separately. Such unclaimed personal property shall be sold at a sale which shall be conducted not less than seven nor more than 15 days after the final advertised notice has been run. The sale shall be to the highest bidder. If such personal property has not been bid on in two successive sales, the law enforcement agency may retain the property for official use or the property will be considered as salvage and disposed of as other county or municipal salvage or nonserviceable equipment. With respect to unclaimed perishable personal property or animals or other wildlife, an officer may make application to the superior court for an order authorizing the disposition of such property prior to the expiration of 90 days.
(f) With respect to a motor vehicle which is the subject of a crime or has been abandoned but which is not the subject of any civil forfeiture proceeding, the law enforcement agency shall be required to contact the Georgia Crime Information Center to determine if such motor vehicle has been stolen and to follow generally the procedures of Code Section 40-11-2 to ascertain the registered owner of such vehicle.
(g)(1) With respect to unclaimed firearms, if the sheriff, chief of police, agency director, or designee of such official certifies that a firearm is unsafe because of wear, damage, age, or modification or because any federal or state law prohibits the sale or distribution of such firearm, at the discretion of such official, it shall be transferred to the Division of Forensic Sciences of the Georgia Bureau of Investigation, a municipal or county law enforcement forensic laboratory for training or experimental purposes, or be destroyed.
(2) Otherwise, an unclaimed firearm:
(A) Possessed by a municipal corporation shall be disposed of as provided for in Code Section 36-37-6; provided, however, that municipal corporations shall not have the right to reject any bids or to cancel any proposed sale of such firearms, and all sales shall be to persons who are licensed as firearms collectors, dealers, importers, or manufacturers under the provisions of 18 U.S.C. Section 921, et seq., and who are authorized to receive such firearms under the terms of such license; or
(B) Possessed by the state or a political subdivision other than a municipal corporation, shall be disposed of by sale at public auction to persons who are licensed as firearms collectors, dealers, importers, or manufacturers under the provisions of 18 U.S.C. Section 921, et seq., and who are authorized to receive such firearms under the terms of such license. Auctions required by this subparagraph may occur online on a rolling basis or at live events, but in no event shall such auctions occur less frequently than once every 12 months during any time in which the political subdivision or state custodial agency has an inventory of five or more saleable firearms.
(3) If no bids from eligible recipients are received within six months from when bidding opened on a firearm offered for sale pursuant to paragraph (2) of this subsection, the firearm shall be transferred to the Division of Forensic Sciences of the Georgia Bureau of Investigation, a municipal or county law enforcement forensic laboratory for training or experimental purposes, or be destroyed.
(h) Records shall be maintained showing the manner in which each personal property item came into possession of the law enforcement agency, a description of the property, all efforts to locate the owner, any case or docket number, the date of publication of any newspaper notices, and the date on which the property was retained by the law enforcement agency, sold, or discarded. All agencies subject to the provisions of this Code section shall keep records of the firearms acquired and disposed of as provided by this Code section as well as records of the proceeds of the sales thereof and the disbursement of such proceeds in accordance with records retention schedules adopted in accordance with Article 5 of Chapter 18 of Title 50, the “Georgia Records Act.”
(i) The proceeds from the sale of personal property by the sheriff or other county law enforcement agency pursuant to this Code section shall be paid into the general fund of the county treasury. The proceeds from the sale of personal property by a municipal law enforcement agency pursuant to this Code section shall be paid into the general fund of the municipal treasury. The proceeds from the sale of personal property by a state agency pursuant to this Code section shall be paid into the general fund of the state.
(j) Neither the state nor any political subdivision of the state nor any of its officers, agents, or employees shall be liable to any person, including the purchaser of a firearm, for personal injuries or damage to property arising from the sale of a firearm under subsection (g) of this Code section unless the state or political subdivision acted with gross negligence or willful or wanton misconduct.
(a) In all criminal cases, the court shall designate either the clerk of court, the court reporter, or any other officer of the court to be the custodian of any property that is introduced into evidence during the pendency of the case. Property introduced into evidence shall be identified or tagged with an exhibit number. After verdict and judgment has been entered in any criminal case, the person who has custody of the physical evidence introduced in the case shall inventory the evidence and create an evidence log within 30 days of the entry of the judgment. Within 30 days following the creation of the evidence log, physical evidence shall be returned to the rightful owner of the property unless the physical evidence itself is necessary for the appeal of the case, for a new trial, or for purposes of complying with this Code section or Code Section 17-5-56. The evidence log shall contain the case number, style of the case, description of the item, exhibit number, the name of the person creating the evidence log, and the location where the physical evidence is stored. After the evidence log is completed, the judge shall designate the clerk of court, the prosecuting attorney, or the law enforcement agency involved in prosecuting the case to obtain and store the evidence, and a notation shall appear in the evidence log indicating the transfer of evidence. If evidence is transferred to any other party, the evidence log shall be annotated to show the identity of the person or entity receiving the evidence, the date of the transfer, and the location of the evidence. The signature of any person or entity to which physical evidence is transferred shall be captured through electronic means that will be linked to the evidence log or the use of a property transfer form that will be filed with the evidence log. When physical evidence, other than audio or video recordings, is transferred to any person or entity, a photograph or other visual image of the evidence shall be made and placed in the case file.
(b) Physical evidence classified as dangerous or contraband by state or federal law, including, but not limited to, items described by state or federal law as controlled substances, dangerous drugs, explosives, weapons, ammunition, biomedical waste, hazardous substances, or hazardous waste shall be properly secured in a manner authorized by state or federal law. This evidence may be transferred to a government agency authorized to store or dispose of the material.
(c) Documents, photographs, and similar evidence shall be maintained and disposed of in accordance with records retention schedules adopted in accordance with Article 5 of Chapter 18 of Title 50, known as the “Georgia Records Act.” Other physical evidence that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime, shall be maintained in accordance with Code Section 17-5-56. A party to an extraordinary motion for new trial or a habeas corpus action in which DNA testing is sought that was filed prior to the expiration of the time prescribed for the preservation of evidence by this Code section may apply to the court in which the defendant was convicted for an order directing that the evidence be preserved beyond the time period prescribed by this Code section and until judgment in the action shall become final.
(d) Except as is otherwise provided in subsections (b) and (c) of this Code section or by law, following the expiration of the period of time set forth in subsections (b) and (c) of this Code section, physical evidence may be disposed of in accordance with the provisions of Article 5 of Chapter 12 of Title 44, known as the “Disposition of Unclaimed Property Act,” or, in the case of property of historical or instructional value, as provided in Code Section 17-5-53.
(a) Except as otherwise provided in Code Section 17-5-55, on or after May 27, 2003, governmental entities in possession of any physical evidence in a criminal case, including, but not limited to, a law enforcement agency or a prosecuting attorney, shall maintain any physical evidence collected at the time of the crime that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime as provided in this Code section. Biological samples collected directly from any person for use as reference materials for testing or collected for the purpose of drug or alcohol testing shall not be preserved.
(b) In a case in which the death penalty is imposed, the evidence shall be maintained until the sentence in the case has been carried out. Evidence in all felony cases that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the crime shall be maintained for the period of time that the crime remains unsolved or until the sentence in the case is completed, whichever occurs last.
As used in this article, the term:
(1) “Forensic medical examination” means an examination by a health care provider of a person who is a victim of a sexual assault. Such examination shall include a physical examination, documentation of biological and physical findings, and collection of physical evidence from the victim.
(2) “Investigating law enforcement agency” means the law enforcement agency responsible for the investigation of the alleged sexual assault.
(3) “Sexual assault” means rape, sodomy, aggravated sodomy, statutory rape, child molestation, aggravated child molestation, sexual assault against a person in custody, sexual assault against a person detained in a hospital or other institution, sexual assault by a practitioner of psychotherapy against a patient, incest, bestiality, sexual battery, and aggravated sexual battery as those terms and offenses are set forth and defined in Chapter 6 of Title 16.
(a) In cases in which the victim reports an alleged sexual assault to law enforcement, the investigating law enforcement agency shall maintain any physical evidence collected as a result of an alleged sexual assault that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of an alleged sexual assault, for 30 years from the date of arrest, or seven years from completion of sentence, whichever occurs last, and if no arrests, then for 50 years.
(b) If the victim chooses not to report the alleged sexual assault to law enforcement at the time of evidence collection, the law enforcement agency with jurisdiction shall maintain any physical evidence collected as a result of such alleged sexual assault that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetrator of the alleged sexual assault, for not less than 12 months from the date any such physical evidence is collected.
A victim shall have the right to have a forensic medical examination regardless of whether the victim participates in the criminal justice system or cooperates with law enforcement in pursuing prosecution of the underlying crime. A victim shall not be required to pay, directly or indirectly, for the cost of a forensic medical examination. The cost of a forensic medical examination shall be paid for by the Georgia Crime Victims Emergency Fund, as provided for in Chapter 15 of this title.
No prosecuting attorney, investigating law enforcement agency, or government official shall ask or require any victim of a sexual assault to submit to a polygraph examination or any other truth-telling device as a condition precedent to investigating such alleged crime. The refusal of a victim to submit to a polygraph examination or any other truth-telling device shall not prevent an investigation or prosecution of any sexual assault.
(a) For the purposes of this Code section, the term “unreported sexual assault kit” means a sexual assault kit collected from a victim who has consented to the collection of the sexual assault kit but who has not reported the alleged crime to law enforcement.
(b) The Criminal Justice Coordinating Council shall create and operate a state-wide sexual assault kit tracking system. The council may contract with state or nonstate entities including, but not limited to, private software and technology providers, for the creation, operation, and maintenance of the system.
(c) The state-wide sexual assault kit tracking system shall:
(1) Track the location and status of sexual assault kits throughout the criminal justice process, including the initial collection in sexual assault forensic examinations performed at medical facilities, receipt and storage at law enforcement agencies, receipt and analysis at forensic laboratories, and storage and any destruction after completion of analysis;
(2) Designate sexual assault kits as unreported or reported;
(3) Allow medical facilities performing sexual assault forensic examinations, law enforcement agencies, prosecutors, the Division of Forensic Sciences of the Georgia Bureau of Investigation, and other entities having custody of sexual assault kits to update and track the status and location of sexual assault kits;
(4) Allow victims of sexual assault to anonymously track or receive updates regarding the status of their sexual assault kits; and
(5) Use electronic technology or technologies allowing continuous access.
(d) The Criminal Justice Coordinating Council may use a phased implementation process in order to launch the sexual assault kit tracking system and facilitate entry and use of the system for required participants. The council may phase initial participation according to region, volume, or other appropriate classifications. All law enforcement agencies and other entities having custody of sexual assault kits shall register for and utilize the system in order to fully participate no later than July 1, 2022. The council shall submit a report on the current status and plan for launching the system, including the plan for phased implementation, to the appropriate committees of the legislature and the Governor no later than January 1, 2022.
(e) The Criminal Justice Coordinating Council shall submit a report on the state-wide sexual assault kit tracking system to the appropriate committees of the legislature and the Governor. The council shall publish the current report on its website. The first report shall be submitted on or before December 31, 2022, and subsequent reports are to be submitted on or before December 31 of each year. Each report shall include the following:
(1) The number of sexual assault kits used by collection sites to conduct forensic medical examinations of assault victims;
(2) Of the sexual assault kits used by collection sites to conduct forensic medical examinations, the number of sexual assault kits for which a sexual assault has been reported to law enforcement, sorted by law enforcement agency;
(3) The average time for each law enforcement agency to collect reported sexual assault kits from collection sites;
(4) Of the sexual assault kits generated for reported cases, the number of sexual assault kits submitted to a laboratory for forensic testing;
(5) Of the sexual assault kits submitted for forensic testing, the number of kits for which forensic testing has been completed;
(6) The number of sexual assault kits for which a sexual assault has not been reported to law enforcement; and
(7) The jurisdictions in which reported sexual assault kits have not been submitted to the Division of Forensic Services of the Georgia Bureau of Investigation in accordance with Code Section 35-1-2.
(f) For the purpose of reports submitted under subsection (e) of this Code section, a sexual assault kit shall be assigned to the jurisdiction associated with the law enforcement agency anticipated to receive the sexual assault kit or otherwise having custody of the sexual assault kit.
(g) Any public agency or entity, including its officials and employees, and any hospital and its employees providing services to victims of sexual assault shall not be held civilly liable for damages arising from any release of information or the failure to release information related to the state-wide sexual assault kit tracking system, so long as the release was without gross negligence.
(h) The Criminal Justice Coordinating Council shall adopt rules as necessary to implement this Code section.
(a) As used in this Code section, the term:
(1) “Criminal violation” means a violation of state or federal criminal law but shall not include a violation of a county or municipal law, regulation, or ordinance.
(2) “Illegal alien” means a person who is verified by the federal government to be present in the United States in violation of federal immigration law.
(b) Except as provided in subsection (f) of this Code section, during any investigation of a criminal suspect by a peace officer, when such officer has probable cause to believe that a suspect has committed a criminal violation, the officer shall be authorized to seek to verify such suspect's immigration status when the suspect is unable to provide one of the following:
(1) A secure and verifiable document as defined in Code Section 50-36-2;
(2) A valid Georgia driver's license;
(3) A valid Georgia identification card issued by the Department of Driver Services;
(4) If the entity requires proof of legal presence in the United States before issuance, any valid driver's license from a state or district of the United States or any valid identification document issued by the United States federal government;
(5) A document used in compliance with paragraph (2) of subsection (a) of Code Section 40-5-21; or
(6) Other information as to the suspect's identity that is sufficient to allow the peace officer to independently identify the suspect.
(c) When attempting to determine the immigration status of a suspect pursuant to subsection (b) of this Code section, a peace officer shall be authorized to use any reasonable means available to determine the immigration status of the suspect, including:
(1) Use of any authorized federal identification data base;
(2) Identification methods authorized by federal law, including those authorized by 8 U.S.C.A. Section 1373(c) and 8 U.S.C.A. Section 1644;
(3) Use of electronic fingerprint readers or similar devices; or
(4) Contacting an appropriate federal agency.
(d) A peace officer shall not consider race, color, or national origin in implementing the requirements of this Code section except to the extent permitted by the Constitutions of Georgia and of the United States.
(e) If during the course of the investigation into such suspect's identity, a peace officer receives verification that such suspect is an illegal alien, then such peace officer may take any action authorized by state and federal law, including, but not limited to, detaining such suspected illegal alien, securely transporting such suspect to any authorized federal or state detention facility, or notifying the United States Department of Homeland Security or successor agency. Nothing in this Code section shall be construed to hinder or prevent a peace officer or law enforcement agency from arresting or detaining any criminal suspect on other criminal charges.
(f) No person who in good faith contacts or has contact with a state or local peace officer or prosecuting attorney or member of the staff of a prosecuting attorney for the purpose of acting as a witness to a crime, to report criminal activity, or to seek assistance as a victim to a crime shall have his or her immigration status investigated based on such contact or based on information arising from such contact.
(g) A peace officer, prosecuting attorney, or government official or employee, acting in good faith to carry out any provision of this Code section, shall have immunity from damages or liability from such actions.
(a) The following offenses are bailable only before a judge of the superior court:
(1) Treason;
(2) Murder;
(3) Rape;
(4) Aggravated sodomy;
(5) Armed robbery;
(5.1) Home invasion in the first degree;
(6) Aircraft hijacking and hijacking a motor vehicle in the first degree;
(7) Aggravated child molestation;
(8) Aggravated sexual battery;
(9) Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule I or under Code Section 16-13-26 as Schedule II;
(10) Violating Code Section 16-13-31 or Code Section 16-13-31.1;
(11) Kidnapping, arson, aggravated assault, or burglary in any degree if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary in any degree, had previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary in any degree, or one or more of the offenses listed in paragraphs (1) through (10) of this subsection;
(12) Aggravated stalking;
(13) Violating Code Section 16-5-46; and
(14) Violations of Chapter 15 of Title 16.
(b)(1) All offenses not included in subsection (a) of this Code section, inclusive of offenses that are violations of local ordinances, are bailable by a court of inquiry. Except as provided in subsection (g) of this Code section, at no time, either before a court of inquiry, when indicted or accused, after a motion for new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail. When determining bail for a person charged with a misdemeanor, courts shall not impose excessive bail and shall impose only the conditions reasonably necessary to ensure such person attends court appearances and to protect the safety of any person or the public given the circumstances of the alleged offense and the totality of circumstances.
(2) Except as otherwise provided in this chapter:
(A) A person charged with violating Code Section 40-6-391 whose alcohol concentration at the time of arrest, as determined by any method authorized by law, violates that provided in paragraph (5) of subsection (a) of Code Section 40-6-391 may be detained for a period of time up to six hours after booking and prior to being released on bail or on recognizance; and
(B) When an arrest is made by a law enforcement officer without a warrant upon an act of family violence or a violation of a criminal family violence order pursuant to Code Section 17-4-20, the person charged with the offense shall not be eligible for bail prior to the arresting officer or some other law enforcement officer taking the arrested person before a judicial officer pursuant to Code Section 17-4-21.
(3)(A) Notwithstanding any other provision of law, a judge of a court of inquiry may, as a condition of bail or other pretrial release of a person who is charged with violating Code Section 16-5-90 or 16-5-91, prohibit the defendant from entering or remaining present at the victim's school, place of employment, or other specified places at times when the victim is present or intentionally following such person.
(B) If the evidence shows that the defendant has previously violated the conditions of pretrial release or probation or parole which arose out of a violation of Code Section 16-5-90 or 16-5-91, the judge of a court of inquiry may impose such restrictions on the defendant which may be necessary to deter further stalking of the victim, including but not limited to denying bail or pretrial release.
(c)(1) In the event a person is detained in a facility other than a municipal jail for an offense which is bailable only before a judge of the superior court, as provided in subsection (a) of this Code section, and a hearing is held pursuant to Code Section 17-4-26, the presiding judicial officer shall notify the superior court in writing within 48 hours that the arrested person is being held without bail. If the detained person has not already petitioned for bail as provided in subsection (d) of this Code section, the superior court shall notify the district attorney and shall set a date for a hearing on the issue of bail within 30 days after receipt of such notice.
(2) In the event a person is detained in a municipal jail for an offense which is bailable only before a judge of the superior court as provided in subsection (a) of this Code section for a period of 30 days, the municipal court shall notify the superior court in writing within 48 hours that the arrested person has been held for such time without bail. If the detained person has not already petitioned for bail as provided in subsection (d) of this Code section, the superior court shall notify the district attorney and set a date for a hearing on the issue of bail within 30 days after receipt of such notice.
(3) Notice sent to the superior court pursuant to paragraph (1) or (2) of this subsection shall include any incident reports and criminal history reports relevant to the detention of such person.
(d) A person charged with any offense which is bailable only before a judge of the superior court as provided in subsection (a) of this Code section may petition the superior court requesting that such person be released on bail. The court shall notify the district attorney and set a date for a hearing within ten days after receipt of such petition.
(e)(1) A court shall be authorized to release a person on bail if the court finds that the person:
(A) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
(B) Poses no significant threat or danger to any person, to the community, or to any property in the community;
(C) Poses no significant risk of committing any felony pending trial; and
(D) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.
(2) When determining bail, as soon as possible, the court shall consider:
(A) The accused's financial resources and other assets, including whether any such assets are jointly controlled;
(B) The accused's earnings and other income;
(C) The accused's financial obligations, including obligations to dependents;
(D) The purpose of bail; and
(E) Any other factor the court deems appropriate.
(3) If the person is charged with a serious violent felony and has already been convicted of a serious violent felony, or of an offense under the laws of any other state or of the United States which offense if committed in this state would be a serious violent felony, there shall be a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the person as required or assure the safety of any other person or the community. As used in this subsection, the term “serious violent felony” means a serious violent felony as defined in Code Section 17-10-6.1.
(4) A bond set for any offense by an elected judge, an appointed judge filling the vacancy of an elected judge, or judge sitting by designation that purports a dollar amount shall be executed in the full-face amount of such bond through secured means as provided for in Code Section 17-6-4 or 17-6-50 or shall be executed by use of property as approved by the sheriff in the county where the offense was committed.
(5) Notwithstanding any other provision of law, nothing in this Code section shall prohibit a duly sworn sheriff from releasing an inmate from custody in cases of medical emergency with the consent of the judge in the county in which he or she presides.
(f)(1) Except as provided in subsection (a) of this Code section or as otherwise provided in this subsection, the judge of any court of inquiry may by written order establish a schedule of bails and unless otherwise ordered by the judge of any court, an accused shall be released from custody upon posting bail as fixed in the schedule.
(2) For offenses involving an act of family violence, as defined in Code Section 19-13-1, bail or other release from custody shall be set by a judge on an individual basis and a schedule of bails provided for in paragraph (1) of this subsection shall not be utilized; provided, however, that the judge shall include a listing of specific conditions which shall include, but not be limited to, having no contact of any kind or character with the victim or any member of the victim's family or household, not physically abusing or threatening to physically abuse the victim, the immediate enrollment in and participation in domestic violence counseling, substance abuse therapy, or other therapeutic requirements.
(3) For offenses involving an act of family violence, the judge shall determine whether one or more specific conditions shall be used, except that any offense involving an act of family violence and serious injury to the victim shall be bailable only before a judge when the judge or the arresting officer is of the opinion that the danger of further violence to or harassment or intimidation of the victim is such as to make it desirable that the consideration of the imposition of additional conditions as authorized in this Code section should be made. Upon setting bail in any case involving family violence, the judge shall give particular consideration to the exigencies of the case at hand and shall impose any specific conditions as he or she may deem necessary. As used in this Code section, the term “serious injury” means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, substantial bruises to body parts, fractured bones, or permanent disfigurements and wounds inflicted by deadly weapons or any other objects which, when used offensively against a person, are capable of causing serious bodily injury.
(4) For violations of Code Section 16-15-4, the court shall require increased bail and shall include as a condition of bail or pretrial release that the accused shall not have contact of any kind or character with any other member or associate of a criminal street gang and, in cases involving an alleged victim, that the accused shall not have contact of any kind or character with any such victim or any member of any such victim's family or household.
(5) For offenses involving violations of Code Section 40-6-393, bail or other release from custody shall be set by a judge on an individual basis and not a schedule of bails pursuant to this Code section.
(g) No appeal bond shall be granted to any person who has been convicted of murder, rape, aggravated sodomy, armed robbery, home invasion in any degree, aggravated child molestation, child molestation, kidnapping, trafficking in cocaine or marijuana, aggravated stalking, or aircraft hijacking and who has been sentenced to serve a period of incarceration of five years or more. The granting of an appeal bond to a person who has been convicted of any other felony offense or of any misdemeanor offense involving an act of family violence as defined in Code Section 19-13-1, or of any offense delineated as a high and aggravated misdemeanor or of any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court. Appeal bonds shall terminate when the right of appeal terminates, and such bonds shall not be effective as to any petition for review or petition or application for writ of certiorari unless the court in which the petition for review or petition or application is filed so specifies.
(h) Except in cases in which life imprisonment or the death penalty may be imposed, a judge of the superior court by written order may delegate the authority provided for in this Code section to any judge of any court of inquiry within such superior court judge's circuit. However, such authority may not be exercised outside the county in which said judge of the court of inquiry was appointed or elected. The written order delegating such authority shall be valid for a period of one year, but may be revoked by the superior court judge issuing such order at any time prior to the end of that one-year period.
(i) As used in this Code section, the term “bail” shall include the release of a person on an unsecured judicial release, except as limited by Code Section 17-6-12.
(j) For all persons who have been authorized by law or the court to be released on bail, sheriffs and constables shall accept such bail; provided, however, that the sureties tendered and offered on the bond are approved by the sheriff of the county in which the offense was committed.
(a) In addition to other methods of posting bail or as special condition of bond, a defendant may be released from custody pending the trial of his or her case on the condition that the defendant comply with the terms and conditions of an electronic pretrial release and monitoring program which is approved pursuant to subsection (j) of this Code section. The sheriff of a county may enter into agreements with such approved providers. A bonding company, bonding agent, or probation service provider may be a provider of such services.
(b) If it appears to the court that a defendant subject to its jurisdiction is a suitable candidate for electronic pretrial release and monitoring, the court may, in its sole discretion and subject to the eligibility requirements of this Code section, authorize the defendant to be released under the provisions of an electronic pretrial release and monitoring program. A judge may only authorize electronic pretrial release and monitoring if that judge has jurisdiction to set a bond for the offense charged and the defendant is otherwise eligible for bond under subsection (e) of Code Section 17-6-1. When a court of competent jurisdiction has already set bond for a defendant indicating that the defendant is otherwise eligible for release on bail pursuant to subsection (e) of Code Section 17-6-1, in addition to accepting cash in satisfaction of the bond set by a court, the court may instruct the sheriff that the defendant is to be released to an electronic pretrial release and monitoring program.
(c) The court, in its sole discretion, may revoke at any time the eligibility of any defendant to participate in the electronic pretrial release and monitoring program in which event the defendant shall be immediately returned to custody. If the defendant's case has not been assigned to a particular division of the court, the chief judge shall have such authority.
(d) A defendant may not be released to, or remain in, an electronic pretrial release and monitoring program if such defendant has any other outstanding warrants, accusations, indictments, holds, or incarceration orders from any other court, law enforcement agency, community supervision officer, county or Department of Juvenile Justice juvenile probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42 that require the posting of bond or further adjudication.
(e) A defendant released pursuant to an electronic pretrial release and monitoring program shall abide by such conditions as the court may impose relating to such program, including, but not limited to, the following:
(1) Periods of home confinement;
(2) Compliance with all requirements and conditions of the electronic pretrial release and monitoring program provider;
(3) Compliance with any court orders or special conditions of bond which may include an order directing that no contact, direct or indirect, be made with the victim or forbidding entry upon, about, or near certain premises;
(4) An order directing that the accused provide support and maintenance for the person's dependents to the best of his or her ability;
(5) Restrictions on the use of alcoholic beverages and controlled substances;
(6) Curfews;
(7) Limitations on work hours and employment;
(8) An order directing the accused to submit to test of breath, blood, or urine from time to time;
(9) Travel restrictions;
(10) An order directing that electronic pretrial release and monitoring equipment be kept in good working condition;
(11) An order directing that the person refrain from violating the criminal laws of any state, county, or municipality;
(12) An order directing timely payment of all fees connected with the electronic pretrial release and monitoring program;
(13) Payroll deductions to fund electronic pretrial release and monitoring fees;
(14) Provisions to permit reasonable medical treatment;
(15) Provisions for procuring reasonable necessities, such as grocery shopping;
(16) Provisions for attendance in educational, rehabilitative, and treatment programs; and
(17) Such other terms and conditions as the court may deem just and proper.
(f) Under no circumstances shall electronic pretrial release and monitoring equipment be introduced internally or beneath the skin of any person.
(g) In the event that a court of competent jurisdiction finds probable cause, upon oath, affirmation, or sworn affidavit, that a defendant has violated the terms or conditions of his or her electronic pretrial release and monitoring program, other than terms regarding home confinement set forth in paragraph (1) of subsection (e) of this Code section, or finds that the defendant provided false or misleading information concerning his or her qualifications to participate in the electronic pretrial release and monitoring program, including, but not limited to, name, date of birth, address, or other personal identification information, then the defendant's ongoing participation in such program shall be terminated immediately and, upon arrest of the defendant for such violation by any law enforcement officer, the defendant shall be returned to confinement at the county jail or other facility from which the defendant was released.
(h)(1) As an additional condition of electronic pretrial release and monitoring, a defendant authorized to participate in such program by the court shall pay a reasonable, nonrefundable fee for program enrollment, equipment use, and monitoring to the provider of such program. If a bonding company, bonding agent, or probation service provider is the provider, the fees earned in the capacity of being such a provider shall be in addition to the fees allowed in Code Sections 17-6-30, 42-8-34, and 42-8-102.
(2) The fees connected with the electronic pretrial release and monitoring program shall be timely paid by a defendant as a condition of his or her ongoing participation in the electronic pretrial release and monitoring program in accordance with the terms for such programs as approved by the court. Failure to make timely payments shall constitute a violation of the terms of the electronic pretrial release and monitoring program and shall result in the defendant's immediate return to custody.
(3) Defendants who have an extraordinary medical condition requiring ongoing medical treatment or indigent persons, as defined by the court, and who are selected by the court following the indigency standards established by the court may have such electronic pretrial release and monitoring fees paid by the sheriff with the consent of the governing authority.
(i) No defendant released under an electronic pretrial release and monitoring program under this Code section shall be deemed to be an agent, employee, or involuntary servant of the county or the electronic pretrial release and monitoring provider while so released, working, or participating in training or going to and from the defendant's place of employment or training. Neither the electronic pretrial release and monitoring provider nor the sheriff shall be civilly liable for the criminal acts of a defendant released pursuant to this Code section.
(j) Any person or corporation approved by the chief judge of the court and the sheriff in their discretion who meets the following minimum requirements may be approved to provide electronic pretrial release and monitoring services:
(1) The provider shall comply with all applicable federal, state, and local laws and all rules and regulations established by the chief judge and the sheriff in counties where the provider provides electronic pretrial release and monitoring services;
(2) The provider shall provide the chief judge and the sheriff with the name of the provider, the name of an individual who shall serve as the contact person for the provider, and the telephone number of such contact person;
(3) The provider shall promptly, not later than three business days after such change, notify the chief judge and sheriff of any changes in its address, ownership, or qualifications under this Code section;
(4) The provider shall provide simultaneous access to all records regarding all monitoring information, GPS tracking, home confinement, and victim protection regarding each person placed on electronic pretrial release and monitoring; and
(5) The provider shall act as surety for the bond.
(k) The sheriff shall maintain a list of approved providers of electronic pretrial release and monitoring services. The sheriff, in his or her discretion, may temporarily or permanently remove any provider from the list of approved providers should the provider:
(1) Fail to comply with the requirements of this Code section;
(2) Fail to monitor properly any defendant that the provider was required to monitor;
(3) Charge an excessive fee for use and monitoring of electronic monitoring equipment; or
(4) Act or fail to act in such a manner that, in the discretion of the sheriff, constitutes good cause for removal.
(a)(1) In all cases wherein a licensed driver of this state has been arrested, incarcerated, and charged with a violation of state law and where said violation is a misdemeanor, the sheriff of the county wherein the violation occurred shall be authorized, unless otherwise ordered by a judicial officer, after the individual has been incarcerated for not less than five days, to accept that individual's driver's license as collateral for any bail which has been set in the case, up to and including the amount of $1,000.00, provided such license is not under suspension or has not expired or been revoked.
(2) The individual posting a license as collateral pursuant to this subsection shall execute an acknowledgment and agreement between the individual and the State of Georgia as bond wherein the individual agrees to appear in court to answer the charges made against the individual and acknowledges that failure to appear in court when the case is scheduled for hearing, trial, or plea shall result in a forfeiture of the individual's license through suspension by operation of law effective upon the date of the individual's scheduled appearance. The individual shall also be notified that failure to appear in court as required may result in criminal prosecution for bail jumping as provided in Code Section 16-10-51. After execution of the agreement, except as otherwise provided by law, the license shall be returned to the individual and the original agreement shall be delivered to the prosecuting attorney for filing with the accusation, citation, or dismissal. Whenever an individual has been charged with a violation of Code Section 40-6-391, relating to driving under the influence of alcohol or drugs, then the provisions of Code Section 40-5-67 shall apply.
(3) A failure to appear by the individual who has been charged with a misdemeanor offense and who posted that individual's license as bail pursuant to this subsection shall, by operation of law, cause that individual's license to be suspended by the Department of Driver Services effective immediately, and the clerk of the court within five days after that failure to appear shall forward a copy of the agreement to the Department of Driver Services which shall enter the suspension upon the individual's driver history record. The posting of a license as provided in this subsection shall also be considered as bail for the purposes of Code Section 16-10-51. Where the original court date has been continued by the judge, clerk, or other officer of the court and there has been actual notice given to the defendant in open court or in writing by a court official or officer of the court or by mailing such notice to the defendant's last known address, then the provisions of this paragraph shall apply to the new court appearance date.
(4) A license suspended pursuant to this subsection shall only be reinstated when the individual shall pay to the Department of Driver Services a restoration fee of $25.00 together with a certified notice from the clerk of the originating court that the case has either been disposed of or has been rescheduled and a deposit of sufficient collateral approved by the sheriff of the county wherein the charges were made in an amount to satisfy the original bail amount has been paid. The court wherein the charges are pending shall be authorized to require payment of costs by the defendant in an amount not to exceed $100.00 to reschedule the case.
(5) Upon the trial of any individual charged with the offense of driving with a suspended license where such license was suspended as provided in this subsection, a copy of the acknowledgment and agreement executed by the individual together with certification by the clerk of the court of the individual's failure to appear shall be prima-facie evidence of actual notice to the individual that the individual's license was suspended.
(b) In all other misdemeanor cases, sheriffs and constables shall accept bail in such reasonable amount as may be just and fair for any person or persons charged with a misdemeanor, provided that the sureties tendered and offered on the bond are approved by the sheriff in the county where the offense was committed.
(a) In the case of any person engaged in military service who is charged with a misdemeanor and whose bond has been fixed at not more than $400.00 plus costs, any sheriff shall be allowed to accept, in lieu of bail, a recognizance bond executed and signed by the commanding officer of the person or the officer's lawfully delegated subordinates. Any person so charged may be taken into custody on behalf of the military installation by his commanding officer or by persons designated by the commanding officer of the military installation under the following terms and conditions:
(1) Immediately following his release he will be returned by the military police or other designated authority directly to the military installation and delivered to the duty officer of the command to which he is attached;
(2) He then will be restrained as appropriate in each case. The restraint will be for a minimum of 12 hours in all cases involving consumption of alcoholic beverages. He normally will be restricted to the limits of the military installation until such time as the charges are dismissed or his case has been adjudicated;
(3) He will not be transferred, granted leave, or discharged from the military service without 36 hours' notice to the sheriff or his deputy sheriff;
(4) He will be delivered to the sheriff or his deputy on demand; and
(5) These terms or conditions will be withdrawn only upon his posting the required bond or otherwise being released by the sheriff, his deputy, or the appropriate court.
(b) The recognizance bond shall be of the following type:
In consideration of the release of _____ (name of person charged) charged with _____ (name or description of offense) it is agreed that the aforementioned prisoner will be restrained at the _____ (appropriate military installation) in whatever degree considered to be appropriate by his commanding officer. This restraint will be for a minimum of 12 hours in all cases involving consumption of alcoholic beverages. It is further agreed that he will not be transferred, granted leave, or discharged from the _____ (appropriate service) without notice to the sheriff or his deputy and will be delivered to the sheriff or his deputy upon demand. These terms and conditions will be withdrawn only upon his posting of the required personal bond or upon the release by the sheriff, his deputy, or the appropriate court.
| | Signed ____________________________________________________ | | --- | --- | | | Official title ____________________________________________ |
(a) Any party, defendant, accused, or other person required or permitted by law to give or post bond (or bail) as surety or security for the happening of any event or act in criminal matters may discharge the requirement by depositing cash in the amount of the bond so required with the appropriate person, official, or other depository.
(b) Any official or other person receiving any such bond shall give a receipt therefor and shall cause the fact of the receipt to be entered and recorded on the docket of the case in which it was given. If bond is given in a matter not appearing as a separate court case on a docket, a docket shall be prepared, maintained, and kept of all such transactions and the name and address of the person giving or making the bond, the date of the receipt of the bond, the name of the person receiving the bond, the amount of the bond, and a description of the cause for giving the bond, together with any and all other information desirable concerning the bond, shall be a part of the record in that separate docket.
(c) In the event that any cash bail posted pursuant to this Code section or Code Section 17-6-5 is not later claimed by the surety on such bond after a period of two years from the earlier of either the date of the surety being released from liability pursuant to Code Section 17-6-31 or the date of disposition of the case by the prosecutor or the court, including any appeal of a verdict or sentence, then the cash shall be paid into the general fund of the county having trial venue of the case, as in the case of forfeited cash bonds, provided that the officer who is in possession of such cash bail shall first have notified the surety, by mailing notice to such surety at the last address given by such surety, that such funds shall be forfeited if they are not claimed within 90 days following the date of mailing of such notice. Any claim by a surety for refund of a cash bail shall include acceptable documentary proof of disposition of the case from the prosecuting official or appropriate court records or such other documentation as may be acceptable to the official holding such cash bail as proof that the case has been settled.
Any sheriff, deputy sheriff, county peace officer, or other county officer charged with the duty of enforcing the laws of this state relating to:
(1) Traffic or the operation or licensing of motor vehicles or operators;
(2) The width, height, or length of vehicles and loads;
(3) Motor common carriers and motor contract carriers;
(4) Commercial vehicle or driver safety;
(5) Hazardous materials transportation;
(6) Motor carrier insurance or registration;
(7) Road taxes on motor carriers as provided in Article 2 of Chapter 9 of Title 48;
(8) Game and fish;
(9) Boating; or
(10) Litter control
who makes an arrest outside the corporate limits of any municipality of this state for a violation of said laws and who is authorized, as provided herein by a court of record having jurisdiction over such offenses, to accept cash bonds may accept a cash bond from the person arrested in lieu of a statutory bond or recognizance. No such officer shall accept a cash bond unless he or she is authorized to receive cash bonds in such cases by an order of the court having jurisdiction over such offenses and unless such order has been entered on the minutes of the court. Any such order may be granted, revoked, or modified by the court at any time.
Other laws to the contrary notwithstanding, when an order is passed as provided for in Code Section 17-6-5 authorizing an officer to accept cash bonds, it shall be the duty of the clerk of the court, if there is one, or, if there is no clerk, the judge passing the order to furnish the officer or officers authorized under the order with a book of blank receipts, consecutively numbered in triplicate and readily distinguishable and identifiable. The receipts shall be completed by the officers when making an arrest and accepting a cash bond so as to show the name of the person arrested, date of arrest, nature of the offense, amount of the cash bond given, and the name of the arresting officer. The arresting officer or the person receiving the cash bond shall deliver a copy of the receipt to the person arrested at the time the cash bond is given and shall file the original receipt together with the cash bond with the clerk, or judge, as the case may be, of the court having jurisdiction of the offense not later than the next succeeding business day of such clerk or judge following the date of issuance of the receipt. The remaining copy of the receipt shall be mailed to the commissioner of public safety.
All receipts issued to arresting officers and all cash bonds received under Code Sections 17-6-5 and 17-6-6 shall be accounted for by the receiving officers to the court from which the receipts were issued and, in the event that any such officer fails to account for same, he shall be personally liable for any default and may be punished as for contempt by the court, in addition to any other penalties which are provided for by law in such cases.
If any person arrested for a misdemeanor arising out of a violation of the laws of this state relating to:
(1) Traffic or the operation or licensing of motor vehicles or operators;
(2) The width, height, or length of vehicles and loads;
(3) Motor common carriers and motor contract carriers;
(4) Commercial vehicle or driver safety;
(5) Hazardous materials transportation;
(6) Motor carrier insurance or registration;
(7) Road taxes on motor carriers as provided in Article 2 of Chapter 9 of Title 48;
(8) Game and fish;
(9) Boating; or
(10) Litter control
gives a cash bond for his or her appearance as provided in Code Section 17-6-5 and fails to appear on the date, time, and place specified in the citation or summons without legal excuse, the court may order said cash bond forfeited without the necessity of complying with the statutory procedure provided for in the forfeiture of statutory bail bonds. A judgment ordering the case disposed of and settled may be entered by the court and the proceeds shall be applied in the same manner as fines. If the court does not enter a judgment ordering the case disposed of and settled, the forfeiture of the cash bond shall not be a bar to subsequent prosecution of the person charged with the violation of such laws.
Any law enforcement officer or official of a political subdivision of this state who is authorized to enforce Part 2 of Article 2 of Chapter 7 of Title 16 and who is authorized by the judge having jurisdiction of the offense to accept cash bonds may accept a cash bond for the personal appearance at trial of the person arrested in lieu of a statutory bond or recognizance. The procedures connected with such cash bonds, including, but not limited to, duties of the arresting officer, forfeiture, distribution of proceeds, and discretion of court as to disposal of the cash bond, shall be the same procedures applicable to arrest by a sheriff for a violation of any litter law.
(a) All mayors or chief governing officers or their designated official or officials of municipalities are authorized to accept a cash bond for the personal appearance in court of any person charged with a violation of an ordinance or other offense against the municipality. The officer assessing and accepting a cash bond shall issue a receipt for the bond to the person charged with the violation.
(b) When any mayor or chief governing officer of any municipality of this state designates any municipal official to accept cash bonds under subsection (a) of this Code section, the delegation of authority shall be in writing and filed in the records of the municipality.
(c) Any person charged with a violation of an ordinance or other offense against a municipality who gives a cash bond for his personal appearance in court at a designated time and place and who fails to appear at said time and place shall forfeit the cash bond upon the call of the case for trial. It shall not be necessary for the municipality to take any further action to forfeit the cash bond. Forfeiture of a cash bond shall not be a bar to a subsequent prosecution of the accused for the violation.
(d) This Code section shall not apply to municipalities having provisions in their charters with reference to the subject matter of this Code section.
(a)(1) When an individual is apprehended by an officer for the violation of the laws of this state or ordinances relating to the offenses listed in paragraph (2) of this subsection, he or she may display his or her driver's license and be issued a uniform traffic citation in lieu of being:
(A) Brought before the proper magistrate or other judicial officer;
(B) Incarcerated;
(C) Ordered to post a bond; or
(D) Ordered a recognizance for his or her appearance for trial.
(2) This subsection shall apply to any violation:
(A) Of Title 40 except any offense:
(i) For which a driver's license may be suspended for a first offense by the commissioner of driver services;
(ii) Covered under Code Section 40-5-54; or
(iii) Covered under Article 15 of Chapter 6 of Title 40;
(B) Involving the width, height, and length of vehicles and loads;
(C) Involving motor common carriers and motor contract carriers;
(D) Involving hazardous materials transportation; or
(E) Involving road taxes on motor carriers as provided in Article 2 of Chapter 9 of Title 48.
(3) The apprehending officer shall include the individual's driver's license number on the uniform traffic citation. The uniform traffic citation, duly served as provided in this Code section, shall give the judicial officer jurisdiction to dispose of the matter.
(4) Upon display of the driver's license, the apprehending officer shall release the individual so charged for his or her further appearance before the proper judicial officer as required by the uniform traffic citation.
(b)(1) When a uniform traffic citation is issued and if the accused fails to appear for court or otherwise dispose of his or her charges before his or her scheduled court appearance as stated on the uniform traffic citation, prior to the court issuing a bench warrant, the clerk of court shall notify the accused by first-class mail or by postcard at the address listed on the uniform traffic citation of his or her failure to appear. Such notice shall be dated and allow the accused 30 days from such date to dispose of his or her charges or waive arraignment and plead not guilty. If after the expiration of such 30 day period the accused fails to dispose of his or her charges or waive arraignment and plead not guilty, the clerk of court in which the charges are lodged shall, within five days of such date, forward to the Department of Driver Services the accused's driver's license number unless otherwise ordered by the court. The commissioner of driver services shall, upon receipt of such driver's license number, suspend such accused's driver's license and driving privilege until notified by the clerk of court that the charge against the accused has been finally adjudicated or the court has ordered such accused driver's license to be reinstated. Such accused's driver's license shall be reinstated when the Department of Driver Services receives proof of the final adjudication or order of reinstatement by the court and the accused individual pays to the Department of Driver Services the applicable restoration fee as set forth in Code Section 40-5-56, unless such fee is waived by the court or otherwise as provided by law.
(2) This subsection shall not apply to any violation of Title 40:
(A) For which a driver's license may be suspended for a first offense by the commissioner of driver services;
(B) Covered under Code Section 40-5-54; or
(C) Covered under Article 15 of Chapter 6 of Title 40.
(b.1) It shall be the duty of a law enforcement officer or emergency medical technician responding to the scene of any motor vehicle accident or other accident involving a fatal injury to examine immediately the driver's license of the victim to determine the victim's wishes concerning organ donation. If the victim has indicated that he or she wishes to be an organ donor, it shall be the duty of such law enforcement officer or emergency medical technician to take appropriate action to ensure, if possible, that the victim's organs shall not be imperiled by delay in verification by the donor's next of kin.
(c) Nothing in this Code section bars any law enforcement officer from arresting or from seizing the driver's license of any individual possessing a fraudulent license or a suspended license or operating a motor vehicle while his or her license is suspended, outside the scope of a driving permit, or without a license.
(d) The commissioner of driver services shall be authorized to promulgate reasonable rules and regulations to carry out the purposes of this Code section and to establish agreements with other states whereby a valid license from that state may be accepted for purposes of this Code section.
(a) As used in this Code section, the term:
(1) “Bail restricted offense” means the person is charged with:
(A) An offense of:
(i) Murder or felony murder, as defined in Code Section 16-5-1;
(ii) Armed robbery, as defined in Code Section 16-8-41;
(iii) Kidnapping, as defined in Code Section 16-5-40;
(iv) Rape, as defined in Code Section 16-6-1;
(v) Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
(vi) Aggravated sodomy, as defined in Code Section 16-6-2; or
(vii) Aggravated sexual battery, as defined in Code Section 16-6-22.2;
(B) A felony offense of:
(i) Aggravated assault;
(ii) Aggravated battery;
(iii) Hijacking a motor vehicle in the first degree;
(iv) Aggravated stalking;
(v) Child molestation;
(vi) Enticing a child for indecent purposes;
(vii) Pimping;
(viii) Robbery;
(viii.1) Burglary;
(ix) Bail jumping;
(x) Escape;
(xi) Possession of a firearm or knife during the commission of or attempt to commit certain crimes;
(xii) Possession of firearms by convicted felons and first offender probationers;
(xiii) Trafficking in cocaine, illegal drugs, marijuana, or methamphetamine;
(xiv) Participating in criminal gang activity as defined in Code Section 16-15-3;
(xv) Habitual violator;
(xvi) Driving under the influence of alcohol, drugs, or other intoxicating substances;
(xvii) Entering an automobile or other mobile vehicle with intent to commit theft or felony, as defined in Code Section 16-8-18; or
(xviii) Stalking; or
(C) A misdemeanor offense of:
(i) Crimes involving family violence, as defined in Code Section 19-13-1; or
(ii) Stalking.
(2) “Unsecured judicial release” means any release that does not purport a dollar amount through secured means as provided for in Code Section 17-6-4 or 17-6-50 or property as approved by the sheriff in the county where the offense was committed and that is:
(A) On a person's own recognizance; or
(B) For the purpose of entering a pretrial release program, a pretrial release and diversion program as provided for in Article 4 of Chapter 3 of Title 42, or a pretrial intervention and diversion program as provided for in Article 4 of Chapter 18 of Title 15, or pursuant to Uniform Superior Court Rule 27.
(b)(1) An elected judge, an appointed judge filling the vacancy of an elected judge, or a judge sitting by designation may issue an unsecured judicial release under subparagraph (a)(2)(A) of this Code section if:
(A) Such unsecured judicial release is noted on the release order;
(B) The person is not charged with a bail restricted offense;
(C) The person has not been convicted of bail jumping as provided in Code Section 16-10-51 within the past five years; and
(D) No bench warrant has been issued for the person's arrest based on such person's failure to appear in court within the past five years; provided, however, that this subparagraph shall not apply if such warrant was recalled or issued on the basis of such person's failure to appear for a nonserious traffic offense, as such term is defined in Code Section 35-3-37.
(2) A person who is ineligible for unsecured judicial release pursuant to subparagraph (C) or (D) of paragraph (1) of this subsection may contest his or her ineligibility on the basis that his or her criminal history record information is inaccurate, incomplete, or misleading. In such instance, the prosecuting attorney shall bear the burden of establishing such person's ineligibility.
(c) An elected judge, an appointed judge filling the vacancy of an elected judge, or a judge sitting by designation may issue an unsecured judicial release under subparagraph (a)(2)(B) of this Code section if:
(1) Such unsecured judicial release is noted on the release order; and
(2) The person is not charged with a bail restricted offense.
(d) Except as provided in subsection (b) and subsection (c) of this Code section and in addition to other laws regarding the release of an accused person, the judge of any court having jurisdiction over a person charged with committing an offense against the criminal laws of this state shall have authority, in his or her sound discretion and in appropriate cases, to authorize the release of the person on an unsecured judicial release only.
(e) Upon the failure of a person released on an unsecured judicial release to appear for trial, if the release is not otherwise conditioned by the court, absent a finding of sufficient excuse to appear, the court shall summarily issue an order for his or her arrest which shall be enforced as in cases of forfeited bonds.
(f) Prior to issuing an unsecured judicial release, a judge shall, in addition to the considerations provided for in Code Section 17-6-1, consider the accused person's criminal history record information that is available at such time.
Except as otherwise provided in this chapter, each person who is entitled to bail under this article shall be permitted one bail for the same offense as a matter of right. Subsequent bails shall be in the discretion of the court.
(a) When a person posts bail bond prior to a preliminary or commitment hearing and is later bound over to another court for trial, the original bail bond shall not terminate but shall be valid to provide for the person's appearance at the trial of the case unless the amount of the bail is set higher by lawful authority, in which case new bail bond shall be posted.
(b) Nothing contained in subsection (a) of this Code section shall apply to any proceedings in which any federal court or United States commissioner is involved. Subsection (a) of this Code section shall apply only to those instances wherein the person required to post a bail bond shall be bound over to a court or grand jury of the same county wherein the committing court exercised its jurisdiction. Subsection (a) of this Code section shall not apply to those instances where a person is bound over to two or more courts or grand juries.
(c) Nothing contained in subsection (a) of this Code section shall be construed to require an additional bail bond in the event the court to which the person has been committed requires a lesser bail bond than the bond originally posted.
(a) After arrest, if bail is tendered and accepted, no regular commitment need be entered, but a simple memorandum of the fact of bail being taken shall be sufficient.
(b)(1) A reasonable opportunity shall be allowed the accused person to give bail; and, even after commitment and imprisonment, the committing court may order the accused person brought before it to receive bail. No person shall be imprisoned under a felony commitment when bail has been fixed, if the person tenders and offers to give bond in the amount fixed, with sureties acceptable to the sheriff of the county in which the alleged offense occurred; provided, however, the sheriff shall publish and make available written rules and regulations defining acceptable sureties and prescribing under what conditions sureties may be accepted. If the sheriff determines that a professional bonding company is an acceptable surety, the rules and regulations shall require, but shall not be limited to, the following:
(A) Complete documentation showing the composition of the company to be an individual, a trust, or a group of individuals, whether or not formed as a partnership or other legal entity, or a corporation or a combination of individuals, trusts, and corporations;
(B) Complete documentation for all employees, agents, or individuals authorized to sign or act on behalf of the bonding company;
(C) Complete documentation showing that the company holds a valid business license in the jurisdiction where bonds will be written;
(D) Fingerprints and background checks of every individual who acts as a professional bondsperson as defined in Code Section 17-6-50 for the professional bonding company seeking approval;
(E) Establishment of a cash escrow account or other form of collateral as follows:
(i) For any professional bonding company that is new to the county or that has operated continuously in the county for less than 18 months, in an amount and upon terms and conditions as determined and approved by the sheriff;
(ii) Once a professional bonding company has operated continuously for 18 months or longer in the county, then any such cash escrow account or other form of collateral shall not exceed 5 percent of the current outstanding bail bond liability of the professional bonding company and such cash escrow account shall not be required to have on deposit an amount in excess of $1,000,000.00; and
(iii) No professional bonding company shall purchase an insurance policy in lieu of establishing a cash escrow account or posting other collateral; provided, however, that any professional bonding company which was using an insurance policy as collateral as of December 31, 2013, may continue to do so at the discretion of the sheriff.
(F) Establishment of application, approval, and reporting procedures for the professional bonding company deemed appropriate by the sheriff which satisfy all rules and regulations required by the laws of this state and the rules and regulations established by the sheriff;
(G) Applicable fees to be paid by the applicant to cover the cost of copying the rules and regulations and processing and investigating all applications and all other costs relating thereto; or
(H) Additional criteria and requirements for approving and regulating bonding companies to be determined at the discretion of the sheriff.
(2) This Code section shall not be construed to require a sheriff to accept a professional bonding company or bondsperson as a surety.
(3) This Code section shall not be construed to prevent the posting of real property bonds and the sheriff may not prohibit the posting of property bonds. Additional requirements for the use of real property may be determined at the discretion of the sheriff. The sheriff shall not prohibit a nonresident of the county from posting a real property bond if such real property is located in the county in which it is offered as bond and if such property has sufficient unencumbered equity to satisfy the sheriff's posted rules and regulations as to acceptable sureties.
(c) This Code section shall not abrogate or repeal the common-law authority of the judge having jurisdiction.
If the accused person waives a commitment hearing and tenders bail, a memorandum of these facts shall be entered on the warrant by the person authorized to accept bail; and this waiver may be done by the person charged before arrest and, when done, shall operate as a supersedeas.
In addition to all other requirements prescribed for appearance bonds or recognizances, the appearance bond or recognizance given by a person accused of the commission of a crime shall be conditioned upon the person presenting himself before the court at the time fixed for his arraignment. Upon failure of a person charged with a penal offense to appear before the court at the time fixed for his arraignment, the prosecuting attorney may proceed to forfeit the bond or recognizance.
All bonds taken under requisition of law in the course of a judicial proceeding may be amended and new security given if necessary.
(a) Sureties on criminal bonds in any court shall not charge or receive more than 15 percent of the face amount of the bond set, which amount includes the principal and all applicable surcharges, as compensation from defendants or from anyone acting for defendants; provided, however, that a surety may charge and receive a minimum of $50.00 per bonded charge or offense as compensation, regardless of whether such compensation exceeds 15 percent of the face amount of any bond set.
(b) Any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor.
(a) When the court is not in session, a surety on a bond may surrender the surety's principal to the sheriff or to the responsible law enforcement officer of the jurisdiction in which the case is pending in order to be released from liability.
(b) When the court is in session, a surety on a bond may surrender the surety's principal in open court.
(c) The principal shall also be considered surrendered by plea of guilty or nolo contendere to the court or if the principal is present in person when the jury or judge, if tried without a jury, finds the principal guilty or if the judge dead dockets the case prior to entry of judgment and, upon such plea or finding of guilty or dead docketing, the surety shall be released from liability.
(d)(1) Furthermore, the surety shall be released from liability if, prior to entry of judgment, there is:
(A) A deferred sentence;
(B) A presentence investigation;
(C) A court ordered pretrial intervention program;
(D) A court ordered educational and rehabilitation program;
(E) A fine;
(F) A dead docket; or
(G) Death of the principal.
(2) Furthermore, the surety may be released from liability at the discretion of the court if:
(A) The principal used a false name when he or she was bound over and committed to jail or a correctional institution and was subsequently released from such facility unless the surety knew or should have known that the principal used a false name; and
(B) The surety shows to the satisfaction of the court that he or she acted with due diligence and used all practical means to secure the attendance of the principal before the court.
(e) If the prosecuting attorney does not try the charges against a defendant within a period of two years in the case of felonies and one year in the case of misdemeanors after the date of posting bond, then judgment rendered after such period may not be enforced against the surety on the bond and the surety shall thereafter be relieved of liability on the bond. This subsection shall not apply where the prosecuting attorney's failure to try the charges is due to the fault of the principal.
(f) No judgment shall be rendered on any appearance bond if it is shown to the satisfaction of the court that the surety was prevented from returning the principal to the jurisdiction because such principal was on active military duty.
(a) Bondsmen or persons who hold themselves out as signers or sureties of bonds for compensation are declared to be professional bondsmen.
(b) A professional bondsperson is one who holds himself or herself out as a signer or surety of bonds for compensation who must meet the following qualifications:
(1) Is 18 years of age or over;
(2) Is a resident of the State of Georgia for at least one year before making application to write bonds;
(3) Is a person of good moral character and has not been convicted of a felony or any crime involving moral turpitude; and
(4) Is approved by the sheriff and remains in good standing with respect to all applicable federal, state, and local laws and all rules and regulations established by the sheriff in the county where the bonding business is conducted.
(c) The sheriff of the county in which the bonding business is conducting business or is seeking approval to conduct business shall initiate a criminal background investigation to ensure that a professional bondsman has not been convicted of a felony or a crime involving moral turpitude in this state or any other jurisdiction. The sheriff shall require the professional bondsman to furnish two full sets of fingerprints which the sheriff shall submit to the Georgia Crime Information Center. The center shall submit a full set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check.
(d) It shall be the duty of each professional bondsman approved by the sheriff in accordance with this part to provide the clerk of each court before which one or more of such professional bondsman's principals are required to appear with the business name, complete address, telephone number, and e-mail address of the chief operating officer or his or her designee of such professional bondsman for the purpose of receiving any notices that may be sent pursuant to Code Section 17-6-71. Each professional bondsman shall have the duty to keep such information current and accurate. It shall be the duty of each clerk of court to keep, maintain, and update such information as provided by a professional bondsman.
(a) The Georgia Association of Professional Bondsmen shall approve continuing education programs offered by professional associations, educational institutions, government agencies, and others as deemed appropriate for professional bondsmen to attend.
(b) The fee for continuing education programs for professional bondsmen shall not exceed $250.00 annually.
(c) Professional bondsmen shall be required to obtain eight hours of continuing education annually.
(d) On or before January 31 of each year, each professional bondsman shall submit a certificate of completion of eight hours of approved continuing education to the individual or department which is responsible for issuing bail bonds for each jurisdiction in which he or she is doing business.
Professional bondsmen, their agents, or representatives shall not suggest or advise the employment of or name for employment any attorney or attorneys to represent a defendant, during the negotiations for the bondsmen to sign the bond or subsequent thereto.
Professional bondsmen, their agents, or employees shall not solicit business as bondsmen or loiter about or around jails, places where prisoners are confined, or the courts for the purpose of engaging in or soliciting business as such bondsmen. No state or municipal law enforcement officer or keeper or employee of a penal institution may suggest to or give advice to, in any manner whatsoever, any prisoner regarding the services of a professional bondsman to write a criminal bond for the appearance of a prisoner in any court at any time.
Professional bondsmen, their agents, or employees shall not advise defendants who are principals in bonds signed by them or give any directions in the defense or disposition of the cases in which they sign bonds.
(a) No professional bondsman or his or her agents or employees who receive compensation for becoming the surety on a criminal bond shall thereafter receive any other sum in the case. If the surety surrenders a defendant into the custody of the court, the sheriff, or another law enforcement officer in the jurisdiction where the bond was made before final disposition of the case, the surety is required to return to the principal the compensation received for signing the bond as surety if such surrender of the defendant is for reasons other than:
(1) The defendant's arrest for a crime other than a traffic violation or misdemeanor;
(2) The defendant's cosigner attests in writing the desire to be released from the bond;
(3) The defendant fails to provide to the court and the surety the defendant's change of address;
(4) The defendant fails to pay any fee due to the surety after being notified by certified mail or statutory overnight delivery that the same is past due;
(5) The defendant fails to notify the court and the surety upon leaving the jurisdiction of the court; or
(6) The defendant provides false information to the surety.
(b) In the event of a forfeiture on the bond by the defendant, the surety shall have the right to surrender into custody the defendant who is the principal on the bond without returning any compensation paid by the defendant for the signing of the bond.
Any person who violates any Code section in this part shall be guilty of a misdemeanor.
(a) As used in this Code section and Code Sections 17-6-57 and 17-6-58, the term “bail recovery agent” means any person who performs services or takes action for the purpose of apprehending the principal on a bail bond granted in this state or capturing a fugitive who has escaped from bail in this state for gratuity, benefit, or compensation.
(b) A bail recovery agent must be a United States citizen, 25 years of age or older, and must obtain a license pursuant to Code Section 16-11-129.
(c) Any sheriff of a county shall require any professional bondsman who is a resident of or doing business in the sheriff's county to register his or her bail recovery agents in that county. The professional bondsman must submit to the sheriff, in a form and manner to be determined by the sheriff, a list of all bail recovery agents whose services may be used by such bondsman.
(a) The Georgia Association of Professional Bondsmen shall approve continuing education programs offered by professional associations, educational institutions, government agencies, and others as deemed appropriate for bail recovery agents to attend.
(b) The fee for continuing education programs for bail recovery agents shall not exceed $125.00 annually.
(c) Bail recovery agents shall be required to obtain eight hours of continuing education annually.
(d) On or before January 31 of each year, each bail recovery agent shall submit a certificate of completion of eight hours of approved continuing education to the individual or department which is responsible for issuing bail bonds for each jurisdiction in which he or she is doing business.
(a) Any bail recovery agent who enters any local police jurisdiction in pursuit of and for the purpose of apprehending the principal on a bail bond or capturing a fugitive or engaging in surveillance of such principal or fugitive shall, prior to taking any action in his or her capacity as a bail recovery agent in that local police jurisdiction, notify by facsimile transmission or telephone the sheriff and police chief of the local police jurisdiction in which the surveillance, apprehension, or capture is to take place unless it is to take place in public.
(b) An out-of-state bail recovery agent shall submit proof to the sheriff or police chief that he or she is qualified to be a bail recovery agent under the requirements of his or her home state. An out-of-state bail recovery agent shall deliver a certified copy of the bail bond or of the forfeiture or failure to appear to the sheriff or chief of police. Such out-of-state bail recovery agent, if not qualified in his or her home state or if his or her home state does not require bail recovery agents to be qualified, shall employ a Georgia bail recovery agent who is lawfully registered pursuant to this part.
(c) Each professional bondsman shall issue a uniform identification card to each bail recovery agent registered by the professional bondsman which identification card shall include the bail recovery agent's name, height, weight, address, photograph, and signature. The identification card shall also include the signature of the professional bondsman who has registered the bail recovery agent as required in subsection (c) of Code Section 17-6-56. A bail recovery agent shall be required to carry such identification card while acting in the capacity as a bail recovery agent.
(a) Any bail recovery agent who fails to register with the local sheriff or who is otherwise unqualified to act as a bail recovery agent but who nonetheless attempts to apprehend or capture a principal on a bail bond or a fugitive or who succeeds in apprehending or capturing such person shall be guilty of a misdemeanor upon conviction for the first violation and shall be guilty of a felony upon conviction for the second and all subsequent violations punishable by imprisonment for not less than one nor more than five years.
(b) Any bondsman or bonding company owner, surety, or agent who hires a bail recovery agent who is not qualified to act as a bail recovery agent pursuant to Code Sections 17-6-56 and 17-6-57 shall be guilty of a misdemeanor upon conviction for the first violation and shall be guilty of a felony upon conviction for the second and all subsequent violations punishable by imprisonment for not less than one nor more than five years, or a fine of not more than $10,000.00, or both.
(c) No bail recovery agent shall wear, carry, or display any uniform, badge, shield, card, or other item with any printing, insignia, or emblem that purports to indicate that such bail recovery agent is an employee, officer, or agent of any state or federal government or any political subdivision of any state or federal government. A violation of this subsection shall be punished upon conviction as a felony punishable by imprisonment for not less than one nor more than five years, or a fine of not more than $10,000.00, or both.
(d) A bail recovery agent who enters the wrong property, causes damage to said property, or causes injury to anyone thereon is liable for all damages.
(a) A bond forfeiture occurs at the end of the court day upon the failure of appearance of a principal of any bond or recognizance given for the appearance of that person.
(b) An appearance bond shall not be forfeited unless the clerk of the court gave the surety at least 72 hours' written notice, exclusive of Saturdays, Sundays, and legal holidays, before the time of the required appearance of the principal. Notice shall not be necessary if the time for appearance is within 72 hours from the time of arrest, provided the time for appearance is stated on the bond, or where the principal is given actual notice in open court.
(a) The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond, issue a bench warrant for the principal's arrest, and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served by the clerk of the court in which the bond forfeiture occurred within ten days of such failure to appear by certified mail or by electronic means as provided in Code Section 17-6-50 to the surety at the address listed on the bond or by personal service to the surety within ten days of such failure to appear at its home office or to its designated registered agent. Service shall be considered complete upon the mailing of such certified notice. Such ten-day notice shall be adhered to strictly. If notice of the execution hearing is not served as specified in this subsection, the surety shall be relieved of liability on the appearance bond.
(b) If at the execution hearing it is determined that judgment should be entered, the judge shall so order and a writ of fieri facias shall be filed in the office of the clerk of the court where such judgment is entered. The provisions of this subsection shall apply to all bail bonds, whether returnable to superior court, state court, probate court, magistrate court, or municipal court.
(a) No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court by the written statement of a licensed physician that the principal on the bond was prevented from attending court due to a mental or physical disability or the principal on the bond was receiving inpatient treatment as involuntary treatment, as such terms are defined in Code Section 37-3-1.
(b) No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that the principal on the bond was prevented from attending because he or she was detained by reason of arrest, sentence, or confinement in a penal institution or jail in the State of Georgia, or so detained in another jurisdiction, or because he or she was involuntarily confined or detained pursuant to court order in a mental institution in the State of Georgia or in another jurisdiction. An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal's detention or confinement. Such notice may be sent from the holding institution by mail or e-mail or delivered by hand or by facsimile machine. Upon the presentation of such written notice to the clerk of the proper court, the prosecuting attorney, and the sheriff or other law enforcement officer having jurisdiction over the case, along with a letter of intent to pay all costs of returning the principal to the jurisdiction of the court, such notice and letter shall serve as the surety's request for a detainer or hold to be placed on the principal. Should there be a failure to place a detainer or hold within ten business days of the surety's service of a detainer or hold request, and after such presentation of such notice and letter of intent to pay costs, the surety shall then be relieved of the liability for the appearance bond without further order of the court.
(c) No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that prior to the entry of the judgment on the forfeiture the principal on the bond is in the custody of the sheriff or other responsible law enforcement agency. An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal's detention or confinement. Such notice may be sent from the holding institution by mail or e-mail or delivered by hand or by facsimile machine. Upon presentation of such written notice to the clerk of the proper court, the prosecuting attorney, and the sheriff or other law enforcement officer having jurisdiction over the case along with a letter of intent to pay all costs of returning the principal to the jurisdiction of the court, such notice and letter shall serve as the surety's request for a detainer or hold to be placed against the principal. Should there be a failure to place a detainer or hold within ten business days of the surety's service of a detainer or hold request, and after presentation of such notice and letter of intent to pay costs, the surety shall then be relieved of the liability for the appearance bond without further order of the court.
(c.1) No judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that the principal on the bond was prevented from attending because he or she was deported or removed from the United States by federal authorities. Official documentation from a federal official or agency shall be considered proof of the principal's deportation or removal. Such documentation may be delivered by mail or e-mail or delivered by hand or by facsimile machine.
(d) In cases in which subsection (e) of this Code section is not applicable, the court shall order remission under the following conditions:
(1) Provided the bond amount has been paid within 120 days after entry of the judgment and the delay has not prevented prosecution of the principal and upon application filed within 120 days from the payment of judgment with prior notice to the prosecuting attorney of such application, said court shall direct remission of 95 percent of the bond amount remitted to the surety if the principal is produced or otherwise appears before the court that has jurisdiction of the bond within such 120 day period following payment of the judgment;
(2) Provided the bond amount has been paid within 120 days after the entry of judgment and the delay has not prevented prosecution of the principal, should the surety, within two years of the principal's failure to appear, locate the principal in the custody of the sheriff in the jurisdiction where the bond was made or in another jurisdiction causing the return of the principal to the jurisdiction where the bond was made, apprehend, surrender, or produce the principal, if the apprehension or surrender of the principal is substantially procured or caused by the surety, or if the location of the principal by the surety causes the adjudication of the principal in the jurisdiction in which the bond was made, the surety shall be entitled to a refund of 50 percent of the bond amount. The application for 50 percent remission shall be filed no later than 30 days following the expiration of the two-year period following the date of judgment; or
(3) Remission shall be granted upon condition of the payment of court costs and of the expenses of returning the principal to the jurisdiction by the surety.
(e)(1) If, within 120 days from entry of the judgment, the surety surrenders the principal to the sheriff or responsible law enforcement officer, or said surrender has been denied by the sheriff or responsible law enforcement officer, or the surety locates the principal in custody in another jurisdiction, the surety shall only be required to pay costs and 5 percent of the face amount of the bond, which amount includes all surcharges. If it is shown to the satisfaction of the court, by the presentation of competent evidence from the sheriff or the holding institution, that said surrender has been made or denied or that the principal is in custody in another jurisdiction or that said surrender has been made and that 5 percent of the face amount of the bond and all costs have been tendered to the sheriff, the court shall direct that the judgment be marked satisfied and that the writ of fieri facias be canceled.
(2)(A) The court shall direct that the judgment be marked satisfied and that the writ of fieri facias be canceled, if within 120 days from entry of the judgment, the surety:
(i) Tenders an amount equal to 5 percent of the face amount of the bond and all costs to the sheriff; and
(ii) Provides, in writing, the court and the prosecuting attorney for the court that has jurisdiction of the bond with competent evidence giving probable cause to believe that the principal is located in another jurisdiction within the United States and states that it will provide for the reasonable remuneration for the rendition of the principal, as estimated by the sheriff; and
(B) The prosecuting attorney for the court that has jurisdiction of the bond:
(i) Declines, in writing, to authorize or facilitate extradition; or
(ii) Within ten business days of the notice provided pursuant to division (2)(A)(ii) of this subsection, fails to enter the appropriate extradition approval code into the computerized files maintained by the Federal Bureau of Investigation National Crime Information Center, thereby indicating an unwillingness to extradite the principal.
Every bond or recognizance given to secure the appearance of any person in any criminal proceeding shall have entered thereon the mailing address of the principal and each surety.
(a) Any judicial officer authorized to hold a court of inquiry may, upon the application of others under oath or upon his or her own motion, issue a notice to appear for a show cause hearing to any person whose conduct in the county is sufficient to justify the belief that the safety of any one or more persons in the county or the peace or property of the same is in danger of being injured or disturbed thereby. Such show cause hearing shall be held within seven days of such application or motion. Upon sufficient cause being shown, the court may require from the person a bond with sureties for such person's good behavior with reasonable conditions to ensure the safety of persons or property in the county or the preservation of the peace of the county for a period of up to six months.
(b) All bonds posted under this Code section shall be returnable in the court which required the bond and shall be amendable in the court's discretion.
(c) If it is determined at a hearing that there was not sufficient cause for a hearing to have been held, the affiant who caused the bond to be imposed shall pay all court costs.
(d) At the time of or at any time after the filing of an application as provided in subsection (a) of this Code section, the judicial officer may, in his or her sound discretion, issue an order of arrest for the person or persons named in the application if the sworn allegations regarding the conduct of such person or persons is sufficient to justify the belief that there is imminent danger of injury to any person in the county, damage to any property in the county, or disturbance of the peace of the county. Upon the arrest of such person, a hearing as provided in subsection (a) of this Code section shall be held within 24 hours; otherwise, such person shall be released on bond with sureties and reasonable conditions for his or her good behavior until a hearing can be held.
(e) As used in this Code section, the term “county” means the county in which the judicial officer is authorized to hold a court of inquiry.
A bond for good behavior posted pursuant to Code Section 17-6-90 may be extended for a period of six months by the court which required the bond. The sureties on the bond shall have the privilege of surrendering their principal as in other cases of bail.
Upon oral or written complaint by the injured party or upon motion by the prosecuting attorney, the court may, in its discretion, issue a rule for contempt against a party who violates the bond posted pursuant to Code Section 17-6-90. Upon hearing the rule, if the court finds that there has been a violation of the bond, the court may impose a sentence for contempt of court. If it should appear to the court from the evidence and the court finds that the violation of the bond was provoked or brought about by the conduct of the prosecuting witness, the witness, after notice and the opportunity for a hearing, may be ruled for contempt of court and sentenced as provided by law.
(a) Upon the information of any person, under oath, that he is in fear of bodily harm to himself or his family, or of violent injury to his property, from another person, any judicial officer authorized to hold a court of inquiry may issue his warrant requiring the arrest of such other person. If, after the return of the warrant and upon hearing the evidence of both parties, the court is satisfied that probable cause for such fear exists, the court may require the accused to give bond, with good security, to keep the peace as against the person, family, or property of the affiant. If the accused fails to give bond, the court shall commit him to jail. Any person against whom a warrant issues must, within 24 hours, be brought for a hearing before the court which issued the warrant or be released on bond by the sheriff.
(b) Nothing in this Code section shall prohibit the sheriff from releasing the person at any time prior to the hearing after posting bond. The amount of the bond shall be set by the sheriff but in no event shall the amount set by the sheriff exceed $1,000.00. Such bond shall contain the same conditions as a bond required after a hearing by the court of inquiry, except that, in counties in which a state court is established, all bonds posted under this Code section shall be returnable in the state court rather than in the superior court. Within five days after being released on bond by the sheriff, the person shall be entitled to a hearing before the court of inquiry.
(c) If it is determined at the hearing that there was not sufficient cause for the warrant to have been issued, the affiant who caused the warrant to be issued shall pay all court costs.
(d) A judicial officer shall not be required to issue the warrant provided for in this Code section until the person requesting the issuance of the warrant deposits with the judicial officer a sum, not to exceed $12.00, to be applied against the total cost in the proceedings. At the termination of the proceedings, any part of the deposit remaining because of dismissal or because the costs are assessed against another party shall be refunded to the depositor. If the person requesting the issuance of the warrant is unable to pay any deposit, fee, or other cost which would normally be required in the court and subscribes an affidavit to the effect that because of his indigence he is unable to pay these costs, the person shall be relieved from paying the costs and his rights shall be the same as if he had paid the costs.
A person may require a bond to keep the peace against the spouse of such person.
(a) Actual violence, a threat of violence, or any other act intended and calculated to excite alarm or to provoke a breach of the peace shall be a violation of the bond posted pursuant to Code Section 17-6-110. For every such act, the party at whose instance the bond was required shall have a right of action.
(b) In counties having a population of not less than 200,000 nor more than 250,000 according to the United States decennial census of 1950 or any future such census in which there is located a municipal court, upon oral or written complaint by the injured party, the court may in its discretion issue a rule for contempt against the offending defendant. Upon hearing the rule, if the court finds that there has been a violation of the bond, the court may, in addition to the remedy provided in subsection (a) of this Code section, impose a sentence for contempt of court. If it should appear to the court from the evidence and the court finds that the breach of the peace was provoked or brought about by the conduct of the prosecuting witness, the witness may be ruled for contempt of court and sentenced as provided by law.
If the person who required the bond provokes a violation thereof by the person who posted the bond, no recovery shall be had.
The superior or state court, as the case may be, may discharge the bond at any time unless a motion is made to extend it, accompanied by evidence to satisfy the court of the necessity of the extension.
When there is no secure jail in a county or when it is deemed necessary by the sheriff, any person committing an offense in the county may be sent to a jail in another county determined to be suitable by the sheriff. The county where the offense is committed shall be primarily liable for jail fees and costs and shall pay the same monthly in advance to the county holding the prisoner. For the purpose of raising funds to pay the costs, the county governing authority may levy and collect an additional tax.
The sheriff shall not be bound to receive a prisoner from another county until the jail fees and costs are provided for as set forth in Code Section 17-7-1.
The official in charge of any facility in which a child is detained pending trial in the superior, state, or juvenile courts, including but not limited to sheriffs, regional jail authorities, and the Department of Juvenile Justice, shall furnish at least once a week a list of all children so detained to the chief judge, or his or her designee, and the prosecuting attorney for the court or courts having jurisdiction to adjudicate the case against the child. The list shall include the following information pertaining to each child:
(1) The child's name;
(2) The date of arrest;
(3) The offense charged or other reason for being held;
(4) The amount of the bond, if known; and
(5) Whether the child is represented by an attorney and, if represented, the name of the attorney.
Any judge of a superior or state court, judge of the probate court, magistrate, or officer of a municipality who has the criminal jurisdiction of a magistrate may hold a court of inquiry to examine an accusation against a person legally arrested and brought before him or her. The time and place of the inquiry shall be determined by such judicial officer. Such judge may order the court of inquiry to be conducted by audio-visual communication between the accused, the court, the attorneys, and the witnesses.
The judicial officer before whom the accused is brought may associate with him, in the investigation, one or more magistrates, in which event a majority shall decide all questions. If there are only two presiding, the original officer shall determine all the questions where the court is not in agreement.
Any mayor, recorder, or other proper officer presiding in any court of a municipal corporation shall have authority to bind over or commit to jail offenders against any criminal law whenever, in the course of an investigation before such officer, a proper case therefor is made out by the evidence.
(a) The duty of a court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused and to require him to appear and answer before the court competent to try him. Whenever such probable cause exists, it is the duty of the court to commit.
(b) Any court, other than a superior court or a state court, to which any charge of a violation of Code Section 16-11-126 is referred for the determination required by this Code section shall thereafter have and exercise only the jurisdiction of a court of inquiry with respect to the charge and with respect to any other criminal violation arising from the transaction on which the charge was based and shall not thereafter be competent to try the accused for the charge or for any other criminal violation arising from the transaction on which the charge was based, irrespective of the jurisdiction that the court otherwise would have under any other law.
A reasonable time shall be given to the defendant and prosecutor for the preparation of the case. In no event shall the defendant be forced to attend the hearing without the aid of counsel if there is a reasonable probability of his securing counsel without too great delay. Where the hearing is postponed to a future day at the instance of either party or the court, it shall not be necessary to commit the defendant to jail pending the hearing; but he shall have the right to give bail for appearance at the hearing before the court of inquiry if the offense is bailable under the authority of the court.
A court of inquiry shall have the same power to compel the attendance of witnesses as in other criminal cases, as set forth in and subject to all of the provisions of Chapter 13 of Title 24, at any location where the court shall conduct a hearing, provided that notice is given at least 24 hours prior to the hearing. A court of inquiry may order the arrest of witnesses if required to compel their attendance.
In the event of a commitment of the accused person, the court, in its discretion, may require the witnesses, on behalf of the state or others, to give suitable bonds to secure their appearance at court, with or without sureties, as the circumstances seem to demand.
The sheriffs and constables shall accept bond in such reasonable amount as may be just and fair to secure the appearance of any witness to attend the courts, provided the sureties tendered and offered on the bond are approved by a sheriff of any county.
The court of inquiry shall hear all legal evidence submitted by either party. If the accused wishes to testify and announces in open court before the court of inquiry his or her intention to do so, the accused may testify in his or her own behalf. If the accused elects to testify, he or she shall be sworn as any other witness and may be examined and cross-examined as any other witness. The rules of evidence shall apply except that hearsay shall be admissible. The failure of an accused to testify shall create no presumption against the accused, and no comment may be made because of such failure.
A court of inquiry may commit the defendant for a different offense than that stated in the warrant if the evidence requires it.
The following form, or one in substance the same, shall be deemed to be a sufficient commitment:
Georgia, _____ County.
_____ (name of the defendant) having been arrested on a warrant for the offense of _____ and brought before me, after hearing evidence it is ordered that he be committed for trial for the offense of _____. The jailer of said county (or any other county, if necessary) is required to receive and safely keep him until discharged by due process of law.
Witness my hand and seal, this _____ day of _____, _____.
| | _________________________________________________ | | --- | --- | | | Judicial officer (Seal) |
Whenever any judicial officer sitting as a court of inquiry binds over a defendant to appear at an appropriate court to answer any charge, it shall be the duty of the judicial officer to write on the warrant the names of each witness for the state who appeared at the commitment hearing.
(a) The commitment form shall be delivered to the officer in whose charge the accused person is placed, and the officer shall deliver it with the accused person to the sheriff or the other person in charge of the jail. A memorandum of the commitment shall be entered on the warrant by the judicial officer.
(b)(1) The warrant and all other papers shall be forwarded to the clerk of the court having jurisdiction over the offense for delivery to the prosecuting attorney. After such delivery, if the prosecuting attorney decides to dismiss the case prior to filing an accusation or without seeking an indictment, he or she shall file a notice of such fact with the clerk of the court having jurisdiction over the offense. Such notice shall include the warrant number, if any, and any other identifying number assigned to the case by the Georgia Crime Information Center. Within 30 days of receiving such notice, the clerk of court shall transmit a copy of such notice to the Georgia Crime Information Center.
(2) Nothing in this subsection shall prevent a prosecuting attorney who has probable cause from seeking charges against an accused within the applicable statute of limitations.
No defendant shall be discharged on a writ of habeas corpus because of informality in the commitment or in the proceedings prior thereto, provided there has been substantial compliance with this article.
Any person who is arrested for a crime and who is refused bail shall, within 90 days after the date of confinement, be entitled to have the charge against him or her heard by a grand jury having jurisdiction over the accused person; provided, however, that if the person is arrested for a crime for which the death penalty is being sought, the superior court may, upon motion of the district attorney for an extension and after a hearing and good cause shown, grant one extension to the 90 day period not to exceed 90 additional days; and, provided, further, that if such extension is granted by the court, the person shall not be entitled to have the charge against him or her heard by the grand jury until the expiration of such extended period. In the event no grand jury considers the charges against the accused person within the 90 day period of confinement or within the extended period of confinement where such an extension is granted by the court, the accused shall have bail set upon application to the court.
(a) Any child who is charged with a crime that is within the jurisdiction of the superior court, as provided in Code Section 15-11-560 or 15-11-561, who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury. The superior court shall, upon motion for an extension of time and after a hearing and good cause shown, grant one extension to the original 180 day period, not to exceed 90 additional days.
(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child's case shall be transferred to the juvenile court and shall proceed thereafter as provided in Chapter 11 of Title 15.
(c) The provisions of this Code section shall not apply to any case in which the prosecuting attorney files notice with the court that the detained child is a codefendant to a case in which an adult is charged with committing the same offense and the state has filed a notice of its intention to seek the death penalty.
All special presentments by the grand jury charging defendants with violations of the penal laws shall be treated as indictments. It shall not be necessary for the clerk of the court to enter the special presentments in full upon the minutes, but only the statement of the case and finding of the grand jury as in cases of indictments. It shall not be necessary for the district attorney to frame bills of indictment on the special presentments, but he may arraign defendants upon the special presentments and put them on trial in like manner as if the presentments were bills of indictment.
(a) Before a bill of indictment or special presentment against a present or former peace officer charging the officer with a crime which is alleged to have occurred while he or she was in the performance of his or her duties is presented to a grand jury, the officer shall be given a copy of the proposed bill of indictment or special presentment and notified in writing of the contemplated action by the prosecuting attorney. Such notice and a copy of the proposed bill of indictment or special presentment shall be provided to such officer not less than 20 days prior to the date upon which a grand jury will begin hearing evidence, and such notice shall inform such officer:
(1) That the grand jury is investigating such officer's conduct to determine if there is probable cause to conclude that he or she has violated one or more laws of this state;
(2) Of the date upon which the grand jury will begin hearing testimony on the proposed bill of indictment or special presentment and the location of the hearing;
(3) That he or she may request, but cannot be compelled, to testify as a witness before the grand jury regarding his or her conduct; and
(4) That, if such officer requests to testify before the grand jury, he or she will be permitted to do so at the conclusion of the presentation of the state's case-in-chief and that he or she may be questioned by the prosecuting attorney or members of the grand jury as are any other witnesses.
(b) If the officer requests to appear as a witness, he or she shall notify the prosecuting attorney any time prior to the date the grand jury will begin hearing testimony in such investigation. The prosecuting attorney shall, after consulting with the grand jury, inform the officer in writing of the date and time when he or she shall be present in order to testify and of the procedure that the grand jury will follow pursuant to subsection (c) of this Code section. The prosecuting attorney shall further advise the grand jury that an officer has the right to appear and testify or not to appear and testify and that, if the officer chooses not to testify, the grand jury shall not consider that in any way in making its decision.
(c) Prior to the introduction of any evidence or the first witness being sworn, the prosecuting attorney shall advise the grand jury of the laws applicable to the conduct of such proceedings, all relevant sections of the Code relating to the crime or crimes alleged in the bill of indictment, and any Code section that excuses or justifies such conduct. In particular, the grand jury shall be advised of Code Sections 16-3-20, 16-3-21, 16-3-23.1, and 17-4-20.
(d) If the officer requests to testify before the grand jury and appears at the date and time specified, the case shall proceed as in any other criminal case heard by a grand jury, except that the officer shall be permitted to testify at the conclusion of the presentation of the state's case-in-chief and that he or she shall only be present in the grand jury room while he or she is testifying. Such officer may be questioned by the prosecuting attorney or members of the grand jury as are any other witnesses. After the officer has been sworn as a witness and prior to any testimony by the officer, the prosecuting attorney shall advise the officer substantially of the following:
(1) The officer's appearance before the grand jury is voluntary, and he or she cannot be compelled to appear as a witness;
(2) By agreeing to be sworn as a witness on the bill of indictment or special presentment that will be laid before the grand jury, he or she will be asked to testify and answer questions and may be asked to produce records, documents, or other physical evidence;
(3) The officer may refuse to answer any question or to produce records, documents, and other physical evidence if a truthful answer to the question or producing such records, documents, or other physical evidence would tend to incriminate the officer or would tend to bring infamy, disgrace, or public contempt upon the officer;
(4) Any testimony given by the officer may be used against him or her by the grand jury or in a subsequent legal proceeding; and
(5) If the officer is represented by an attorney, the attorney shall have the right to be present in the grand jury room while the officer is testifying, and the officer will be permitted reasonable opportunity to consult with his or her attorney outside the grand jury room.
(e) After being sworn as a witness but prior to being asked any questions by the prosecuting attorney or the grand jurors, the officer may make such sworn statement as he or she shall desire. The officer's attorney shall not propound questions to the officer nor object to questions propounded to the officer on evidentiary grounds.
(f) At the conclusion of the officer's testimony, if any, the prosecuting attorney may present rebuttal evidence and advise the grand jury on matters of law.
(g) At any time during the presentation of evidence or during deliberations, the grand jury may amend the bill of indictment or special presentment or instruct the prosecuting attorney to cause a new bill of indictment or special presentment to be created as in any other case. When a bill of indictment or special presentment is amended or newly created, the accused peace officer and his or her attorney shall be provided a copy of it.
(h) No individual other than the jurors, and any interpreter needed to assist a hearing impaired or speech impaired juror, shall be present while the grand jury is deliberating or voting.
(i)(1) As used in this subsection, the term “nonserious traffic offense” means any offense in violation of Title 40 which is not prohibited by Article 15 of Chapter 6 of Title 40.
(2) The requirements of this Code section shall apply to all prosecutions, whether for felonies or misdemeanors, other than nonserious traffic offenses, and no such prosecution shall proceed either in state or superior court without a grand jury indictment or special presentment.
Two returns of “no bill” by grand juries on the same charge or allegation shall be a bar to any future prosecution of a person for the same offense under the same or another name; provided, however, that, if the returns have been procured by the fraudulent conduct of the person charged or there is newly discovered evidence, upon proof, the judge may allow a third bill to be presented, found, and prosecuted.
If, upon the return of two “true bills” of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court's own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.
(a) Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct. The form of every indictment shall be substantially as follows:
Georgia, _____ County.
The grand jurors selected, chosen, and sworn for the County of _____, to wit: _____, in the name and behalf of the citizens of Georgia, charge and accuse (name of the accused) of the county and state aforesaid with the offense of _____; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same), contrary to the laws of said state, the good order, peace, and dignity thereof.
(b) If there should be more than one count, each additional count shall state:
And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse (name of the accused) with having committed the offense of _____; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same) contrary to the laws of said state, the good order, peace, and dignity thereof.
In any term of court when the public interest requires it, the court may empanel one or more concurrent grand juries in accordance with Part 1 of Article 4 of Chapter 12 of Title 15.
Judges of the superior court may open their courts at any time without the presence of either a grand jury or a trial jury to receive and act upon pleas of guilty in misdemeanor cases and in felony cases, except those punishable by death or life imprisonment, when the judge and the defendant consent thereto. The judge may try the issues in such cases without a jury upon an accusation filed by the district attorney where the defendant has waived indictment and consented thereto in writing and counsel is present in court representing the defendant either by virtue of his or her employment or by appointment by the court.
(a)(1) In felony cases involving violations of the following:
(A) Code Sections 16-8-2, 16-8-14, 16-8-18, 16-9-1, 16-9-20, 16-9-31, 16-9-33, 16-9-37, 16-10-52, and 40-5-58;
(B) Article 1 of Chapter 8 of Title 16, relating to theft;
(C) Chapter 9 of Title 16, relating to forgery and fraudulent practices;
(D) Article 3 of Chapter 10 of Title 16, relating to escape and other offenses related to confinement;
(E) Code Section 16-11-131, relating to possession of a firearm by a convicted felon or first offender probationer; or
(F) Code Section 16-13-30, relating to the purchase, possession, manufacture, distribution, or sale of controlled substances or marijuana,
in which defendants have either been bound over to the superior court based on a finding of probable cause pursuant to a commitment hearing under Article 2 of this chapter or have expressly or by operation of law waived a commitment hearing, the district attorney shall have authority to prefer accusations, and the defendants shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.
(2) All laws relating to rights and responsibilities attendant to indicted cases shall be applicable to cases brought by accusations signed by the district attorney.
(3) The accusation need not be supported by an affidavit except in those cases in which the defendant has not been previously arrested in conjunction with the transaction charged in the accusation or when the accusation is to be used as the basis for the issuance of an arrest warrant.
(b) Judges of the superior court may open their courts at any time without the presence of either a grand jury or a trial jury to receive and act upon pleas of guilty or nolo contendere in felony and misdemeanor cases. The judge of the superior court may try the issues in such cases without a jury upon an indictment or upon an accusation filed by the district attorney where the defendant has waived trial by jury.
(c) An accusation substantially complying with the form provided in subsections (d) and (e) of Code Section 17-7-71 shall in all cases be sufficient.
(d) The district attorney may not bring an accusation pursuant to this Code section in those cases where the grand jury has heard evidence or conducted an investigation or in which a no bill has been returned.
(e) Notwithstanding subsections (a) through (d) of this Code section, nothing in this Code section shall affect the rights of public officials to appear before a grand jury as provided in Code Sections 45-11-4 and 45-15-11 or peace officers to appear before a grand jury as provided in Code Section 17-7-52.
(a) In all misdemeanor cases, the defendant may be tried upon an accusation framed and signed by the prosecuting attorney of the court. The accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and where the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.
(b)(1) In all misdemeanor cases arising out of violations of the laws of this state, relating to (A) the operation and licensing of motor vehicles and operators; (B) the width, height, and length of vehicles and loads; (C) motor common carriers and motor contract carriers; or (D) road taxes on motor carriers as provided in Article 2 of Chapter 9 of Title 48, the defendant may be tried upon the uniform traffic citation and complaint provided for in Article 1 of Chapter 13 of Title 40.
(2) In all misdemeanor cases arising out of violations of the laws of this state relating to game, fish, or boating, the defendant may be tried upon the summons provided for in Code Section 27-1-35.
(c) Every accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct.
(d) An accusation substantially complying with the following form shall in all cases be sufficient:
IN THE _____ COURT OF _____ COUNTY STATE OF GEORGIA
On behalf of the people of the State of Georgia, the undersigned, as prosecuting attorney for the county and state aforesaid, does hereby charge and accuse (name of accused) with the offense of _____; for that the said (name of accused) (state with sufficient certainty the offense and the time and place it occurred) contrary to the laws of this state, the good order, peace, and dignity thereof.
| | /s/ _____________________________________________ | | --- | --- | | | (District attorney) | | | (Solicitor-general) |
(e) If there should be more than one count, each additional count shall state:
The undersigned, as prosecuting attorney, does further charge and accuse the said (name of accused) with the offense of _____ (the offense as before); for that the said (name of accused) (state with sufficient certainty the offense and the time and place it occurred), contrary to the laws of this state, the good order, peace, and dignity thereof.
(f) Prior to trial, the prosecuting attorney may amend the accusation, summons, or any citation to allege or to change the allegations regarding any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation, summons, or citation. A copy of any such amendment shall be served upon the defendant or his or her counsel and the original filed with the clerk of the court. On motion, the court shall grant the defendant a continuance which is reasonably necessitated by an amendment. If any additional charges against the defendant are made the judge shall advise the defendant that he or she has an automatic right to a continuance.
In probate courts which have jurisdiction over misdemeanor possession of marijuana in accordance with Code Sections 16-13-2 and 16-13-30 and certain misdemeanor violations of Code Section 3-3-23 pursuant to Code Section 15-9-30.6, the following offenses may be tried upon a summons or citation without an accusation:
(1) Possession of one ounce or less of marijuana, in accordance with Code Sections 16-13-2 and 16-13-30; and
(2) Any violation of paragraph (2) of subsection (a) of Code Section 3-3-23 which is punishable as a misdemeanor, but not violations punishable as high and aggravated misdemeanors.
In probate, magistrate, and municipal courts that have jurisdiction over violations of Part 2, Part 3, or Part 3A of Article 2 of Chapter 7 of Title 16 or Code Section 32-6-51 or 40-6-248.1 that are punishable as misdemeanors in accordance with Code Section 15-9-30.7, 15-10-2.1, or 36-32-10.3 such offenses may be tried upon a summons or citation with or without an accusation.
(a) A bench warrant may be issued by a judge for the arrest of a person:
(1) Accused of a crime by a grand jury;
(2) Except as otherwise provided in Code Section 17-6-11, charged with a crime who has failed to appear in court after:
(A) Actual notice of the time and place to appear to the person in open court;
(B) Notice of the time and place to appear to the person by mailing a notice to such person's last known address; or
(C) The person has otherwise been notified of the time and place to appear personally, in writing, by a court official or officer of the court;
(3) Charged with a crime upon the filing by the prosecutor of an accusation supported by affidavit; or
(4) Who failed to dispose of his or her charges or waive arraignment and plead not guilty after the expiration of the 30 day period set forth in subsection (b) of Code Section 17-6-11.
(b) Every officer is bound to execute a bench warrant within his or her jurisdiction, and every person so arrested shall be committed to jail until bail is tendered. Any judicial officer or the sheriff of the county where the charge was returned may receive the bail, fix the amount of the bond, and approve the sureties unless it is a case that is bailable only before some particular judicial officer.
(a) In all criminal cases the court shall fix a date on which the defendant shall be arraigned. The clerk of the court, at least five days prior to the date set therefor, shall mail to the accused and his attorney of record, if known, notice of the date which has been fixed for arraignment. For such first service of notice, the clerk shall receive the fee prescribed in Code Section 15-6-77. This notice may be served by the sheriff of the county in which the court is situated or his lawful deputies. If the defendant has posted a bond or recognizance, a copy of the notice shall be mailed to each surety on the bond.
(b) On the date fixed by the court the accused shall be arraigned. The court shall receive the plea of the accused and enter the plea as provided for in this chapter. In those cases in which a plea of not guilty is entered, the court shall set the case down for trial at such time as shall be determined by the court.
(c) The appearance and entering of a plea by the accused shall be a waiver of the notice required in this Code section.
Whenever an indictment, special presentment, or accusation against a corporation doing business in this state is returned or filed in any court having jurisdiction over the offense, the clerk of the court shall issue an original and copy notice to the defendant corporation of the filing of the indictment, special presentment, or accusation, which copy notice shall be served by a sheriff upon any officer of the corporation who is found in his county; or, if there is no such officer in his county, then service shall be upon any agent of the corporation. The sheriff serving the copy notice shall make an entry of such service on the original notice and return the same to the court from which it issued. Such service shall be deemed service upon the corporation. Upon the return of the notice, executed as provided for in this Code section, the indictment, special presentment, or accusation shall stand for trial. At the trial, if the defendant corporation fails to appear, or appearing, fails to plead, the judge shall cause a plea of not guilty to be entered, and the trial shall proceed as though the defendant had appeared and pleaded. Upon the conviction of any corporation in any such trial, there shall be rendered against it a judgment for the fine imposed, together with the costs of the prosecution. Upon judgment, an execution shall issue against the property of the defendant.
(a) Upon the arraignment of a person accused of committing a crime, the indictment or accusation shall be read to him and he shall be required to answer whether he is guilty or not guilty of the offense charged, which answer or plea shall be made orally by the accused person or his counsel.
(b) If the person pleads “guilty,” the plea shall be immediately recorded on the minutes of the court by the clerk, together with the arraignment; and the court shall pronounce the judgment of the law upon the person in the same manner as if he or she had been convicted of the offense by the verdict of a jury. At any time before judgment is pronounced, the accused person may withdraw the plea of “guilty” and plead “not guilty.”
(c) In addition to any other inquiry by the court prior to acceptance of a plea of guilty, the court shall determine whether the defendant is freely entering the plea with an understanding that if he or she is not a citizen of the United States, then the plea may have an impact on his or her immigration status. This subsection shall apply with respect to acceptance of any plea of guilty to any state offense in any court of this state or any political subdivision of this state.
If the person accused of committing a crime, upon being arraigned, pleads “not guilty” or stands mute, the clerk shall immediately record upon the minutes of the court the plea of “not guilty,” together with the arraignment; and the arraignment and plea shall constitute the issue between the accused and the state.
(a) The defendant in all criminal cases other than capital felonies in any court of this state, whether the offense charged is a felony or a misdemeanor, may, with the consent and approval of the judge of the court, enter a plea of nolo contendere instead of a plea of guilty or not guilty.
(b) Should the judge allow a plea of nolo contendere to be entered, he shall thereupon be authorized to impose such sentence as may be authorized by law as to the offense charged.
(c) Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose; and the plea shall not be deemed a plea of guilty for the purpose of effecting any civil disqualification of the defendant to hold public office, to vote, to serve upon any jury, or any other civil disqualification imposed upon a person convicted of any offense under the laws of this state. The plea shall be deemed and held to put the defendant in jeopardy within the meaning of Article I, Section I, Paragraph XVIII of the Constitution of this state after sentence has been imposed.
The arraignment and plea of the person accused of committing a crime shall be entered on the indictment or accusation by the prosecuting attorney or other person acting as prosecuting officer on the part of the state.
If the clerk of the court shall fail or neglect to record the arraignment and plea of the person accused of committing a crime at the time the arraignment and plea are made, the recordation may be done at any time afterward by order of the court; and this shall cure the error or omission of the clerk.
All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.
If the defendant, upon being arraigned, demurs to the indictment, pleads to the jurisdiction of the court, pleads in abatement, or enters any other special plea in bar, the demurrer or plea shall be made in writing. If the demurrer or plea is decided against the defendant, he may nevertheless plead and rely on the general issue of “not guilty.”
A plea of misnomer should state the true name of the accused person, that he had never been known by any other name than that, and that he was not known and called by the name which was contained in the indictment or accusation.
All exceptions which go merely to the form of an indictment or accusation shall be made before trial.
(a) When information becomes known to the court sufficient to raise a bona fide doubt regarding the accused's mental competency to stand trial, the court has a duty, sua sponte, to inquire into the accused's mental competency to stand trial. The court may order the Department of Behavioral Health and Developmental Disabilities to conduct an evaluation of the accused's competency. If the court determines that it is necessary to have a trial on the issue of competency, the court shall follow the procedures set forth in Code Section 17-7-130. The court's order shall set forth those facts which give rise to its bona fide doubt as to the accused's mental competency to stand trial. The evaluation of the Department of Behavioral Health and Developmental Disabilities shall be submitted to the court, and the court shall submit such evaluation to the attorney for the accused or, if pro se, to the accused, but otherwise, the report shall remain under seal.
(b) If the court orders a competency evaluation and the accused serves notice of a special plea of mental incompetency to stand trial or raises the issue of insanity, the court shall release the competency evaluation to the prosecuting attorney. Such evaluation shall not be released to any other person absent a court order.
(a) As used in this Code section, the term:
(1) “Child” means an accused person under the jurisdiction of the superior court pursuant to Code Section 15-11-560.
(2) “Civil commitment” means the accused's involuntary inpatient or outpatient commitment pursuant to Chapter 3 or 4 of Title 37, as appropriate.
(3) “Court” means the court which has jurisdiction over the criminal charges against the accused.
(4) “Department” means the Department of Behavioral Health and Developmental Disabilities.
(5) “Developmental disability” shall have the same meaning as set forth in paragraph (8) of Code Section 37-1-1.
(6) “Inpatient” shall have the same meaning as in paragraph (9.1) of Code Section 37-3-1; provided, however, that as applied to a child for purposes of this Code section, the term shall mean a child who is mentally ill or has a developmental disability and is in need of involuntary placement.
(7) “Nonviolent offense” means any offense other than a violent offense.
(8) “Outpatient” shall have the same meaning as in paragraph (12.1) of Code Section 37-3-1, provided that:
(A) As applied to a child for purposes of this Code section, the term shall mean a child who is mentally ill or has a developmental disability and is in need of involuntary placement; and
(B) The court determines that the accused meets the criteria for release on bail or other pre-trial release pursuant to Code Section 17-6-1.
(9) “Serious violent felony” shall have the same meaning as set forth in Code Section 17-10-6.1.
(10) “Sexual offense” shall have the same meaning as set forth in Code Section 17-10-6.2.
(11) “Violent offense” means:
(A)(i) A serious violent felony;
(ii) A sexual offense;
(iii) Criminal attempt to commit a serious violent felony;
(iv) Criminal attempt to commit a sexual offense;
(v) Aggravated assault;
(vi) Hijacking a motor vehicle in the first degree or hijacking an aircraft;
(vii) Aggravated battery;
(viii) Aggravated stalking;
(ix) Arson in the first degree or in the second degree;
(x) Stalking;
(xi) Fleeing and attempting to elude a police officer;
(xii) Any offense which involves the use of a deadly weapon or destructive device; and
(B) Those felony offenses deemed by the court to involve an allegation of actual or potential physical harm to another person.
(b)(1) If an accused files a motion requesting a competency evaluation, the court may order the department to conduct an evaluation by a physician or licensed psychologist to determine the accused's mental competency to stand trial and, if such physician or licensed psychologist determines the accused to be mentally incompetent to stand trial, to make recommendations as to restoring the accused to competency. If the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department. The department's evaluation shall be submitted to the court, and the court shall submit such evaluation to the attorney for the accused or if pro se, to the accused, but otherwise, the evaluation shall be under seal and shall not be released to any other person absent a court order.
(2) If the accused files a special plea alleging that the accused is mentally incompetent to stand trial, it shall be the duty of the court to have a bench trial, unless the state or the accused demands a special jury trial, to determine the accused's competency to stand trial. Once a special plea has been filed, the court shall submit the department's evaluation to the prosecuting attorney.
(c) If the court finds the accused is mentally incompetent to stand trial, the court may order a department physician or licensed psychologist to evaluate and diagnose the accused as to whether there is a substantial probability that the accused will attain mental competency to stand trial in the foreseeable future. The court shall retain jurisdiction over the accused and shall transfer the accused to the physical custody of the department. At its discretion, the court may allow the evaluation to be performed on the accused as an outpatient if the accused is charged with a nonviolent offense. Such evaluation shall be performed within 90 days after the department has received actual custody of an accused or, in the case of an outpatient, a court order requiring evaluation of an accused. If the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department. If the evaluation shows:
(1) That the accused is mentally competent to stand trial, the department shall immediately report that determination and the reasons therefor to the court, and the court shall submit such determination to the attorney for the accused or, if pro se, to the accused and to the prosecuting attorney. The accused shall be returned to the court as provided for in subsection (d) of this Code section;
(2) That the accused is mentally incompetent to stand trial and that there is not a substantial probability that the accused will attain competency in the foreseeable future, the court shall follow the procedures set forth in subsection (e) of this Code section for civil commitment or release; or
(3) That the accused is mentally incompetent to stand trial but there is a substantial probability that the accused will attain competency in the foreseeable future, by the end of the 90 day period, or at any prior time, the department shall report that finding and the reasons therefor to the court and shall retain custody over the accused for the purpose of continued treatment for an additional period not to exceed nine months; provided, however, that if the accused is charged with a misdemeanor offense or a nonviolent offense, the court shall retain jurisdiction over the accused but may, in its discretion, allow continued treatment to be done on an outpatient basis by the department. The department shall monitor the accused's outpatient treatment for the additional period not to exceed nine months. If, by the end of the nine-month period or at any prior time the accused's condition warrants, the accused is still determined by the department physician or licensed psychologist to be mentally incompetent to stand trial, irrespective of the probability of recovery in the foreseeable future, the department shall report that finding and the reasons therefor to the court. The court shall then follow the procedures in subsection (e) of this Code section for civil commitment or release.
(d)(1) If the department's physician or licensed psychologist determines at any time that the accused is mentally competent to stand trial, the department shall notify the court, and the accused shall be discharged into the custody of a sheriff of the jurisdiction of the court unless the charges which led to the evaluation or civil commitment have been dismissed, in which case, the accused shall be discharged from the department. In the event a sheriff does not appear and take custody of the accused within 20 days after notice to the appropriate sheriff of the jurisdiction of the court, the presiding judge of the court, and the prosecuting attorney for the court, the department shall itself return the accused to one of the court's detention facilities, and the cost of returning the accused shall be paid by the county in which the court is located. All notifications under this paragraph shall be sent by certified mail or statutory overnight delivery, return receipt requested. As an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. Regardless of where the accused is held, the court shall hold a bench trial to determine the accused's mental competency to stand trial within 45 days of receiving the department's evaluation or, if demanded, shall conduct a special jury trial within six months of receiving the department's evaluation.
(2) If the accused is an outpatient and the department's physician or licensed psychologist determines at any time that the accused is mentally competent to stand trial, the accused may remain in the community under conditions of bond or other conditions ordered by the court, if any, until the date of the accused's trial, which shall be within 45 days of the court receiving the department's evaluation if tried by the court or within six months of receiving the department's evaluation if a special jury trial is demanded.
(e) If the evaluation performed pursuant to subsection (c) of this Code section shows that the accused is mentally incompetent to stand trial and that there is not a substantial probability that the accused will attain competency in the foreseeable future:
(1) If the accused is charged with a misdemeanor, the department shall return the physical custody of the accused to a sheriff of the jurisdiction of the court; provided, however, that as an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. Regardless of where the accused is held, the court shall, within 45 days of receiving the department's evaluation:
(A) Consider entry of a nolle prosequi of the charges pursuant to Code Section 17-8-3 and, if the accused is not a child, request that the department petition the probate court of the jurisdiction of the accused's residence for civil commitment of the accused; or
(B) If the court finds that the accused does not meet the criteria for civil commitment, the accused shall be released in accordance with the provisions of Chapter 6 of this title; or
(2) If the accused is charged with a felony, the department shall return the physical custody of the accused to a sheriff of the jurisdiction of the court; provided, however, that as an alternative to returning the accused to the sheriff of the jurisdiction of the court, the department may hold the accused at the department's secure facility instead of at the court's detention facilities whenever a department physician or licensed psychologist provides written notice to the court that such detention in the court's facilities would be detrimental to the well-being of the accused. Such alternative detention shall continue only until the date of the accused's trial. The department shall report to the court its finding regarding the accused's mental competency to stand trial, the reasons therefor, and its opinion as to whether the accused currently meets the criteria for civil commitment. The court may order an independent evaluation of the accused by a court appointed licensed clinical psychologist or psychiatrist, who shall report to the court in writing as to the current mental and emotional condition of the accused. Regardless of where the accused is held, the court shall, within 45 days of receiving the department's evaluation:
(A) Consider entry of a nolle prosequi of the charges pursuant to Code Section 17-8-3 and, if the accused is not a child, request that the department petition the probate court of the jurisdiction of the accused's residence for civil commitment of the accused; or
(B) Retain jurisdiction of the accused and conduct a trial at which the court shall hear evidence and consider all psychiatric and psychological evaluations submitted to the court and determine whether the state has proved by clear and convincing evidence that the accused meets the criteria for civil commitment. The burden of proof in such trials shall be upon the state. Following the trial:
(i) If the court finds that the accused does not meet the criteria for civil commitment, the accused shall be released in accordance with the provisions of Chapter 6 of this title;
(ii) If the court finds that the accused meets the criteria for civil commitment, the judge may issue an order civilly committing the accused, and the court shall order the civil commitment to be on an inpatient or outpatient placement; provided, however, that if the accused is a child, the department shall be authorized to place such child in a secure facility designated by the department;
(iii) If the accused is civilly committed pursuant to division (ii) of this subparagraph and was charged with a nonviolent offense, the court may order civil commitment on an annual basis, but in no case for a period to exceed the maximum period for which the accused could have been sentenced on the most serious nonviolent offense charged or a period to exceed five years, whichever is less, provided that civil commitment shall be reevaluated by a department physician or licensed psychologist on an annual basis;
(iv) If the accused is civilly committed pursuant to division (ii) of this subparagraph and was charged with a violent offense, the court may order civil commitment on an annual basis, but in no case for a period to exceed the maximum period for which the accused could have been sentenced on the most serious violent offense charged, provided that civil commitment shall be reevaluated by a department physician or licensed psychologist on an annual basis;
(v) Following the civil commitment pursuant to division (ii) of this subparagraph, a department physician or licensed psychologist shall submit to the court his or her annual evaluation as to whether the civilly committed accused continues to meet the criteria for civil commitment. The court shall mail the annual evaluation to the attorney for the accused or, if pro se, to the accused and to the prosecuting attorney. The court shall review the case annually and enter the appropriate order to renew the civil commitment, to change the civil commitment status, or, in the event the charges are dismissed, to transfer the jurisdiction of the case to the probate court of the jurisdiction of the accused's residence for further civil commitment; provided, however, that after the department submits its annual evaluation, if the state or the accused requests a hearing regarding civil commitment, the court shall hold a hearing on such issue; and
(vi) An accused who is civilly committed pursuant to division (ii) of this subparagraph may make an application for release from civil commitment but shall only be released from that civil commitment by order of the court in accordance with the procedures specified in paragraphs (1) through (3) of subsection (f) of Code Section 17-7-131, except that the burden of proof in such release hearing shall be on the state, and if the civilly committed accused is indigent, the accused may petition the court to have an evaluation performed by a physician or licensed psychologist of the accused's choice, and the court may order the cost of such evaluation be paid for by the county.
(f) If, at any time, the department's physician or licensed psychologist determines that the accused is mentally incompetent to stand trial but later determines that the accused is mentally competent to stand trial, the court shall be so notified and shall order the accused detained or discharged in accordance with paragraph (1) of subsection (d) of this Code section. Any accused determined by a department physician or licensed psychologist to be mentally competent to stand trial and returned to the court as provided in subsection (d) of this Code section shall again be entitled to file a special plea as provided for in this Code section.
(g) If an accused is determined by a department physician or licensed psychologist to be mentally incompetent to stand trial, whether or not civilly committed pursuant to this Code section, the state may file at any time a motion for rehearing on the issue of the accused's mental competency to stand trial. If the state's motion is granted, the case shall proceed as provided in this Code section.
(h) Nothing in this Code section shall prevent the accused or the state from seeking a court order for a nondepartment mental competency evaluation of the accused at the cost of the movant. If a nondepartment mental competency evaluation is ordered, the court shall abide by the time frames for trial as set forth in this Code section unless the court determines, for good cause shown, that such time frames require adjustment for a nondepartment evaluation.
(i) The “Crime Victims' Bill of Rights,” as set forth in Chapter 17 of this title, shall be applicable to any judicial proceeding held pursuant to this Code section, and notice shall be provided to any victim as set forth in such chapter.
At the trial of a criminal case in which the defendant intends to interpose the defense of insanity, evidence may be introduced to prove the defendant's sanity or insanity at the time at which he is alleged to have committed the offense charged in the indictment or information. When notice of an insanity defense is filed, the court shall appoint at least one psychiatrist or licensed psychologist to examine the defendant and to testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including testimony of any medical experts employed by the state or by the defense. The medical witnesses appointed by the court may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness.
(a) For purposes of this Code section, the term:
(1) “Insane at the time of the crime” means meeting the criteria of Code Section 16-3-2 or 16-3-3. However, the term shall not include a mental state manifested only by repeated unlawful or antisocial conduct.
(2) “Intellectual disability” means having significantly subaverage general intellectual functioning resulting in or associated with impairments in adaptive behavior which manifested during the developmental period.
(3) “Mentally ill” means having a disorder of thought or mood which significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life. However, the term “mental illness” shall not include a mental state manifested only by repeated unlawful or antisocial conduct.
(b)(1) In all cases in which the defense of insanity, mental illness, or intellectual disability is interposed, the jury, or the court if tried by it, shall find whether the defendant is:
(A) Guilty;
(B) Not guilty;
(C) Not guilty by reason of insanity at the time of the crime;
(D) Guilty but mentally ill at the time of the crime, but the finding of guilty but mentally ill shall be made only in felony cases; or
(E) Guilty but with intellectual disability, but the finding of intellectual disability shall be made only in felony cases.
(2) A plea of guilty but mentally ill at the time of the crime or a plea of guilty but with intellectual disability shall not be accepted until the defendant has undergone examination by a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, held a hearing on the issue of the defendant's mental condition, and is satisfied that there is a factual basis that the defendant was mentally ill at the time of the offense or has intellectual disability to which the plea is entered.
(2.1) A plea of not guilty by reason of insanity at the time of the crime shall not be accepted and the defendant adjudicated not guilty by reason of insanity by the court without a jury until the defendant has undergone examination by a licensed psychologist or psychiatrist and the court has examined the psychological or psychiatric reports, has held a hearing on the issue of the defendant's mental condition, and the court is satisfied that the defendant was insane at the time of the crime according to the criteria of Code Section 16-3-2 or 16-3-3.
(3) In all cases in which the defense of insanity, mental illness, or intellectual disability is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following:
(A) I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law.
(B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be placed in the custody of the Department of Corrections which will have responsibility for the evaluation and treatment of the mental health needs of the defendant, which may include, at the discretion of the Department of Corrections, referral for temporary hospitalization at a facility operated by the Department of Behavioral Health and Developmental Disabilities.
(C) I charge you that should you find the defendant guilty but with intellectual disability, the defendant will be placed in the custody of the Department of Corrections, which will have responsibility for the evaluation and treatment of the mental health needs of the defendant, which may include, at the discretion of the Department of Corrections, referral for temporary hospitalization at a facility operated by the Department of Behavioral Health and Developmental Disabilities.
(c) In all criminal trials in any of the courts of this state wherein an accused shall contend that he or she was insane, mentally ill, or intellectually disabled at the time the act or acts charged against him or her were committed, the trial judge shall instruct the jury that they may consider, in addition to verdicts of “guilty” and “not guilty,” the additional verdicts of “not guilty by reason of insanity at the time of the crime,” “guilty but mentally ill at the time of the crime,” and “guilty but with intellectual disability.”
(1) The defendant may be found “not guilty by reason of insanity at the time of the crime” if he or she meets the criteria of Code Section 16-3-2 or 16-3-3 at the time of the commission of the crime. If the court or jury should make such finding, it shall so specify in its verdict.
(2) The defendant may be found “guilty but mentally ill at the time of the crime” if the jury, or court acting as trier of facts, finds beyond a reasonable doubt that the defendant is guilty of the crime charged and was mentally ill at the time of the commission of the crime. If the court or jury should make such finding, it shall so specify in its verdict.
(3) The defendant may be found “guilty but with intellectual disability” if the jury, or court acting as trier of facts, finds beyond a reasonable doubt that the defendant is guilty of the crime charged and is with intellectual disability. If the court or jury should make such finding, it shall so specify in its verdict.
(d) Whenever a defendant is found not guilty by reason of insanity at the time of the crime, the court shall retain jurisdiction over the person so acquitted and shall order such person to be detained in a state mental health facility, to be selected by the Department of Behavioral Health and Developmental Disabilities, for a period not to exceed 30 days from the date of the acquittal order, for evaluation of the defendant's present mental condition. Upon completion of the evaluation, the proper officials of the mental health facility shall send a report of the defendant's present mental condition to the trial judge, the prosecuting attorney, and the defendant's attorney, if any.
(e)(1) After the expiration of the 30 days' evaluation period in the state mental health facility, if the evaluation report from the Department of Behavioral Health and Developmental Disabilities indicates that the defendant does not meet the inpatient commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title 37, the trial judge may issue an order discharging the defendant from custody without a hearing.
(2) If the defendant is not so discharged, the trial judge shall order a hearing to determine if the defendant meets the inpatient commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title 37. If such criteria are not met, the defendant must be discharged.
(3) The defendant shall be detained in custody until completion of the hearing. The hearing shall be conducted at the earliest opportunity after the expiration of the 30 days' evaluation period but in any event within 30 days after receipt by the prosecuting attorney of the evaluation report from the mental health facility. The court may take judicial notice of evidence introduced during the trial of the defendant and may call for testimony from any person with knowledge concerning whether the defendant is currently a mentally ill person in need of involuntary treatment, as defined by paragraph (12) of Code Section 37-3-1, or a person with a developmental disability, as defined in paragraph (8) of Code Section 37-1-1, who presents a substantial risk of imminent harm to himself or herself or others. The prosecuting attorney may cross-examine the witnesses called by the court and the defendant's witnesses and present relevant evidence concerning the issues presented at the hearing.
(4) If the judge determines that the defendant meets the inpatient commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title 37, the judge shall order the defendant to be committed to the Department of Behavioral Health and Developmental Disabilities to receive involuntary treatment under Chapter 3 of Title 37 or to receive services under Chapter 4 of Title 37. The defendant is entitled to the following rights specified below and shall be notified in writing of these rights at the time of his or her admission for evaluation under subsection (d) of this Code section. Such rights are:
(A) A notice that a hearing will be held and the time and place thereof;
(B) A notice that the defendant has the right to counsel and that the defendant or his or her representatives may apply immediately to the court to have counsel appointed if the defendant cannot afford counsel and that the court will appoint counsel for the defendant unless he or she indicates in writing that he or she does not desire to be represented by counsel;
(C) The right to confront and cross-examine witnesses and to offer evidence;
(D) The right to subpoena witnesses and to require testimony before the court in person or by deposition from any person upon whose evaluation the decision of the court may rest;
(E) Notice of the right to have established an individualized service plan specifically tailored to the person's treatment needs, as such plans are defined in Chapter 3 of Title 37 and Chapter 4 of Title 37; and
(F) A notice that the defendant has the right to be examined by a physician or a licensed clinical psychologist of his or her own choice at his or her own expense and to have that physician or psychologist submit a suggested service plan for the patient which conforms with the requirements of Chapter 3 of Title 37 or Chapter 4 of Title 37, whichever is applicable.
(5)(A) If a defendant appears to meet the criteria for outpatient involuntary treatment as defined in Part 3 of Article 3 of Chapter 3 of Title 37, which shall be the criteria for release on a trial basis in the community in preparation for a full release, the court may order a period of conditional release subject to certain conditions set by the court. The court is authorized to appoint an appropriate community service provider to work in conjunction with the Department of Behavioral Health and Developmental Disabilities to monitor the defendant's compliance with these conditions and to make regular reports to the court.
(B) If the defendant successfully completes all requirements during this period of conditional release, the court shall discharge the individual from commitment at the end of that period. Such individuals may be referred for community mental health, developmental disabilities, or substance abuse services as appropriate. The court may require the individual to participate in outpatient treatment or any other services or programs authorized by Chapter 3, 4, or 7 of Title 37.
(C) If the defendant does not successfully complete any or all requirements of the conditional release period, the court may:
(i) Revoke the period of conditional release and return the defendant to a state hospital for inpatient services; or
(ii) Impose additional or revise existing conditions on the defendant as appropriate and continue the period of conditional release.
(D) For any decision rendered under subparagraph (C) of this paragraph, the defendant may request a review by the court of such decision within 20 days of the order of the court.
(E) The Department of Behavioral Health and Developmental Disabilities and any community services providers, including the employees and agents of both, providing supervision or treatment during a period of conditional release shall not be held criminally or civilly liable for any acts committed by a defendant placed by the committing court on a period of conditional release.
(f) A defendant who has been found not guilty by reason of insanity at the time of the crime and is ordered committed to the Department of Behavioral Health and Developmental Disabilities under subsection (e) of this Code section may only be discharged from that commitment by order of the committing court in accordance with the procedures specified in this subsection:
(1) Application for the release of a defendant who has been committed to the Department of Behavioral Health and Developmental Disabilities under subsection (e) of this Code section upon the ground that he or she does not meet the civil commitment criteria under Chapter 3 of Title 37 or Chapter 4 of Title 37 may be made to the committing court, either by such defendant or by the superintendent of the state hospital in which the said defendant is detained;
(2) The burden of proof in such release hearing shall be upon the applicant. The defendant shall have the same rights in the release hearing as set forth in subsection (e) of this Code section; and
(3) If the finding of the court is adverse to release in such hearing held pursuant to this subsection on the grounds that such defendant does meet the inpatient civil commitment criteria, a further release application by the defendant shall not be heard by the court until 12 months have elapsed from the date of the hearing upon the last preceding application. The Department of Behavioral Health and Developmental Disabilities shall have the independent right to request a release hearing once every 12 months.
(g)(1) Whenever a defendant is found guilty but mentally ill at the time of a felony or guilty but has intellectual disability, or enters a plea to that effect that is accepted by the court, the court shall sentence him or her in the same manner as a defendant found guilty of the offense, except as otherwise provided in subsection (j) of this Code section. A defendant who is found guilty but mentally ill at the time of the felony or guilty but has intellectual disability shall be committed to an appropriate penal facility and shall be evaluated then treated, if indicated, within the limits of state funds appropriated therefor, in such manner as is psychiatrically indicated for his or her mental illness or intellectual disability.
(2) If at any time following the defendant's conviction as a guilty but mentally ill or guilty but with intellectual disability offender it is determined that a temporary transfer to the Department of Behavioral Health and Developmental Disabilities is clinically indicated for his or her mental illness or intellectual disability, then the defendant shall be transferred to the Department of Behavioral Health and Developmental Disabilities pursuant to procedures set forth in regulations of the Department of Corrections and the Department of Behavioral Health and Developmental Disabilities. In all such cases, the legal custody of the defendant shall be retained by the Department of Corrections. Upon notification from the Department of Behavioral Health and Developmental Disabilities to the Department of Corrections that hospitalization at a Department of Behavioral Health and Developmental Disabilities facility is no longer clinically indicated for his or her mental illness or intellectual disability, the Department of Corrections shall transfer the defendant back to its physical custody and shall place such individual in an appropriate penal institution.
(h) If a defendant who is found guilty but mentally ill at the time of a felony or guilty but with intellectual disability is placed on probation under the “State-wide Probation Act,” Article 2 of Chapter 8 of Title 42, the court may require that the defendant undergo available outpatient medical or psychiatric treatment or seek similar available voluntary inpatient treatment as a condition of probation. Persons required to receive such services may be charged fees by the provider of the services.
(i) In any case in which the defense of insanity is interposed or a plea of guilty but mentally ill at the time of the felony or a plea of guilty but with intellectual disability is made and an examination is made of the defendant pursuant to Code Section 17-7-130.1 or paragraph (2) of subsection (b) of this Code section, upon the defendant's being found guilty or guilty but mentally ill at the time of the crime or guilty but with intellectual disability, a copy of any such examination report shall be forwarded to the Department of Corrections with the official sentencing document. The Department of Behavioral Health and Developmental Disabilities shall forward, in addition to its examination report, any records maintained by such department that it deems appropriate pursuant to an agreement with the Department of Corrections, within ten business days of receipt by the Department of Behavioral Health and Developmental Disabilities of the official sentencing document from the Department of Corrections.
(j)(1) In the trial of any case in which the death penalty is sought which commences on or after July 1, 1988, should the judge find in accepting a plea of guilty but mentally retarded, or the jury or court find in its verdict that the defendant is guilty of the crime charged but mentally retarded, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.
(2) In the trial of any case in which the death penalty is sought which commences on or after July 1, 2017, should the judge find in accepting a plea of guilty but with intellectual disability, or the jury or court find in its verdict that the defendant is guilty of the crime charged but with intellectual disability, the death penalty shall not be imposed and the court shall sentence the defendant to imprisonment for life.
(a)(1)(A) The defendant, in any criminal case in which a trial by jury is provided, may move in writing for a change of venue, whenever, in the defendant's or defense counsel's judgment, an impartial jury cannot be obtained in the county where the crime is alleged to have been committed. Upon the hearing of the motion it shall not be necessary to examine all persons in the county liable to serve on juries, but the judge shall hear evidence by affidavit or oral testimony in support of or against the motion. If, from the evidence submitted, the judge is satisfied that an impartial jury cannot be obtained to try the case, the judge shall grant a change in venue. The judge shall transfer the case to any county that may be agreed upon by the prosecuting attorney and the defendant or the defense counsel, to be tried in the county agreed upon. The judge has the discretion to reject any county agreed upon; if a county is not thus agreed upon, or if the judge, in the exercise of discretion, rejects a county agreed upon, the judge shall select such county as in the judge's judgment will afford a fair and impartial jury to try the case and have it transferred accordingly.
(B) The prosecuting attorney, in any criminal case in which a trial by jury is provided, may move in writing for a change of venue, whenever, in such prosecuting attorney's judgment, an impartial jury cannot be obtained in the county where the crime is alleged to have been committed if:
(i) A previous prosecuting attorney has recused himself or herself, been disqualified, or been removed from the case for cause; or
(ii) A local government official has publicly released information prejudicial to the administration of justice which has the potential to have tainted the local jury pool. Upon the hearing of the motion, it shall not be necessary to examine all persons in the county liable to serve on juries, but the judge shall hear evidence by affidavit or oral testimony in support of or against the motion. If, from the evidence submitted, the judge is satisfied that an impartial jury cannot be obtained to try the case, the judge shall grant a change in venue. The judge shall transfer the case to any county that may be agreed upon by the requesting prosecuting attorney and the defendant or the defense counsel and the case shall be tried in the county agreed upon. The judge has the discretion to reject any county agreed upon; if a county is not thus agreed upon, or if the judge, in the exercise of discretion, rejects a county agreed upon, the judge shall select such county as in the judge's judgment will afford a fair and impartial jury to try the case and have it transferred accordingly.
(2) In the exercise of such discretion, the judge shall consult with the chief superior court judge of the circuit in which a county of transfer lies and consider the following factors:
(A) The existing criminal and civil trial calendars of the transfer county;
(B) The frequency of use as a transfer county;
(C) The estimated length of trial;
(D) The proposed date of trial;
(E) Whether or not the jury is to be sequestered;
(F) Which county shall be responsible for court security, prisoner security, bailiffs, jailers, and clerks of court personnel;
(G) Jury transportation;
(H) Securing hotel accommodations in the event of jury sequestration;
(I) Securing of meals for jurors and other court personnel;
(J) Which county will guarantee and pay vendors for services rendered;
(K) The necessity for deposit or prepayment of expenses by the county of the crime venue; and
(L) All other matters which reasonably may affect the orderly administration of justice in the transfer county. In the event of disagreement between the trial judge and the chief judge of the transfer circuit, the district administrative judge for the proposed transfer of venue shall have final responsibility for resolving the dispute.
(3) Either by the agreement of the defense counsel, the prosecuting attorney, and the judge or by the exercise of discretion by the judge the trial jury may be selected from qualified jurors of the transfer county, although the trial of the criminal case may take place in the county of the venue of the alleged crime. In the exercise of discretion, to select the jury in the transfer county but to try the case in the county of venue of the alleged crime, the judge shall consult with the chief superior court judge of the circuit in which the county of transfer lies and consider all of the factors provided in subparagraphs (A) through (L) of paragraph (2) of this subsection as well as the following factors:
(A) The hardship of sequestration a distance from home on the jurors;
(B) The comparison of court space available;
(C) The comparison of security, jail, clerical, and support staff;
(D) The costs to conduct the trial in each place;
(E) The impact of trial on the orderly administration of justice in each county;
(F) The impact on witnesses;
(G) The availability of hotel accommodations and meals for jurors in each county;
(H) The effect on the prosecuting attorney and defense counsel in each county; and
(I) All other matters which would afford a fair trial and the orderly administration of justice.
In the event of disagreement between the trial judge and the chief judge of the transfer circuit, the district administrative judge for the proposed transfer of venue shall have final responsibility for resolving the dispute.
(b) The judge of the court in whose jurisdiction a crime is alleged to have been committed may change the venue for trial of the case on his own motion whenever, in his judgment, there is danger of violence being committed on the defendant, if carried back to, or allowed to remain in the county where the crime is alleged to have been committed. If a motion is made by the defendant for a change of venue, the judge shall hear the motion at such time and place as the judge may direct. If the evidence submitted shall reasonably show that there is probability or danger of violence, it shall be mandatory on the judge to change the venue to such other county as, in his judgment, will reasonably avoid violence.
(c) Notwithstanding other laws, the denial of a motion to change venue shall be appealable immediately only with a certificate of immediate review. Otherwise, the denial shall be appealed with the merits of the case.
Whenever a change of venue is made, the clerk of the court from which the case has been transferred shall send to the court to which the case has been transferred a transcript of the order for the change of venue, the evidence before the court of inquiry, a list of all the witnesses subpoenaed in the case, and all other papers connected with the case. The clerk of the court selected to try the case shall issue subpoenas to the witnesses and such others as may be applied for by either party.
If, on motion, the judge presiding in the court to which a case has been transferred is satisfied that a fair and impartial jury cannot be obtained therein, he shall, in the manner prescribed in subsection (a) of Code Section 17-7-150, transfer the case to some other county where a fair and impartial jury can be obtained.
(a) Any defendant against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting the defendant's life may enter a demand for speedy trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter; or, by special permission of the court, the defendant may at any subsequent court term thereafter demand a speedy trial. In either case, the demand for speedy trial shall be filed with the clerk of court and served upon the prosecutor and upon the judge to whom the case is assigned or, if the case is not assigned, upon the chief judge of the court in which the case is pending. A demand for speedy trial filed pursuant to this Code section shall be filed as a separate, distinct, and individual document and shall not be a part of any other pleading or document. Such demand shall clearly be titled “Demand for Speedy Trial”; reference this Code section within the pleading; and identify the indictment number or accusation number for which such demand is being made. The demand for speedy trial shall be binding only in the court in which the demand for speedy trial is filed, except where the case is transferred from one court to another without a request from the defendant.
(b) If the defendant is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation. For purposes of computing the term at which a misdemeanor must be tried under this Code section, there shall be excluded any civil term of court in a county in which civil and criminal terms of court are designated; and for purposes of this Code section it shall be as if such civil term was not held.
(c) Any demand for speedy trial filed pursuant to this Code section shall expire at the conclusion of the trial or upon the defendant entering a plea of guilty or nolo contendere.
(d) If a case in which a demand for speedy trial has been filed, as provided in this Code section, is reversed on direct appeal, a new demand for speedy trial shall be filed within the term of court in which the remittitur from the appellate court is received by the clerk of court or at the next succeeding regular court term thereafter.
(e) If the case in which a demand for speedy trial has been filed as provided in this Code section results in a mistrial, the case shall be tried at the next succeeding regular term of court.
(f) If a defendant files a special plea of incompetency to stand trial pursuant to Code Section 17-7-130 or if the court, pursuant to Code Section 17-7-129, conducts a trial on the competency of the defendant, the period of time during which such matter is pending shall not be included in the computation of determining whether a demand for speedy trial has been satisfied.
(a) Any person accused of a capital offense may enter a demand for speedy trial at the term of court at which the indictment is found or at the next succeeding regular term thereafter; or, by special permission of the court, the defendant may at any subsequent term thereafter demand a speedy trial. The demand for speedy trial shall be filed with the clerk of court and served upon the prosecutor and upon the judge to whom the case is assigned or, if the case is not assigned, upon the chief judge of the court in which the case is pending. A demand for trial filed pursuant to this Code section shall be filed as a separate, distinct, and individual document and shall not be a part of any other pleading or document. Such demand shall clearly be titled “Demand for Speedy Trial”; reference this Code section within the pleading; and identify the indictment number or accusation number for which such demand is being made. The demand for speedy trial shall be binding only in the court in which such demand is filed, except where the case is transferred from one court to another without a request from the defendant.
(b) If more than two regular terms of court are convened and adjourned after the term at which the demand for speedy trial is filed and the defendant is not given a trial, then the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment, provided that at both terms there were juries impaneled and qualified to try the defendant and provided, further, that the defendant was present in court announcing ready for trial and requesting a trial on the indictment.
(c) In cases involving a capital offense for which the death penalty is sought, if a demand for speedy trial is entered, the counting of terms under subsection (b) of this Code section shall not begin until the convening of the first term following the completion of pretrial review proceedings in the Supreme Court under Code Section 17-10-35.1.
(d) If a defendant files a special plea of incompetency to stand trial pursuant to Code Section 17-7-130 or if the court, pursuant to Code Section 17-7-129, conducts a trial on the competency of the defendant, the period of time during which such matter is pending shall not be included in the computation of determining whether a demand for speedy trial has been satisfied.
The state shall be required in every case to announce ready or not ready for trial, except in those cases where the defendant is entitled by law to demand a speedy trial, before the defendant shall be called on to make such announcement.
When any person accused of a criminal offense before a court of inquiry is bound over or committed for trial in superior court, the judicial officer holding the court of inquiry shall, at the time of the commitment hearing, give a subpoena to all material witnesses examined for the state to appear and testify before the grand jury at the term to which the defendant is committed or bound to appear; and, after the hearing and commitment or binding over, the prosecutor may apply to the clerk of the superior court and obtain a subpoena for any person deemed by him to be a material witness for the state before the grand jury. The subpoenas issued under this Code section shall be effectual in compelling the attendance of the witnesses to appear and give evidence before the grand jury. The judicial officer holding the court of inquiry and the clerk of the superior court shall, on the first day of the term of court to which the defendant is committed or bound to appear, furnish the prosecuting officers with a complete list of all persons so subpoenaed.
The defendant may, upon application to the committing judicial officer or to the clerk of the court to which he is committed or bound to appear for trial, obtain subpoenas for such witnesses as he deems material for his defense. The judicial officer or the clerk of the court shall issue such subpoenas requiring the witnesses to appear at the term of the court to which the defendant is committed or bound to appear and until his case is ended. The subpoenas so issued shall have the power and authority to compel the attendance of the witnesses at the court but shall not extend to witnesses for the defendant who reside outside the county until a true bill of indictment is found or an accusation is filed against the defendant.
A defendant who fails to use the subpoena power provided for in Code Section 17-7-191, when it is within his power to do so, shall not be entitled to a continuance because a witness material to his defense is not in attendance at the term of the court when his case is called for trial, if he is prosecuted for the same criminal act.
(a) The cases on the criminal docket shall be called in the order in which they stand on the docket unless the accused is in jail or, otherwise, in the sound discretion of the court.
(b)(1) As used in this Code section, the terms “disabled adult” and “elder person” shall have the same meaning as set forth in Code Section 16-5-100.
(2) When the alleged victim is a disabled adult or elder person, the prosecuting attorney shall notify the accused if it intends to seek preferred scheduling. The notice shall be in writing and shall:
(A) Allege the specific factor or factors that will inhibit a disabled adult from attending or participating in court proceedings if he or she is a disabled adult; or
(B) State the age of the alleged victim if he or she is an elder person.
(3) When notice has been given pursuant to paragraph (2) of this subsection, the court shall set a date for a hearing on the issue within 14 days after the filing of such notice. The court shall consider the matter and if the court determines that preferred scheduling is necessary, the trial shall not be:
(A) Subject to subsection (a) of this Code section; and
(B) Earlier than 30 days from the date of the hearing.
All indictments or special presentments shall be submitted to and passed upon by a jury under the direction of the presiding judge unless there is a settlement of the case between the prosecutor and the defendant, which settlement shall be valid only by the approval and order of the court on examination into the merits of the case.
After an examination of the case in open court and before it has been submitted to a jury, the prosecuting attorney may enter a nolle prosequi with the consent of the court. After the case has been submitted to a jury, a nolle prosequi shall not be entered except by the consent of the defendant. The prosecuting attorney shall notify the defendant and the defendant's attorney of record within 30 days of the entry of a nolle prosequi either personally or in writing; such written notice shall be sent by regular mail to the defendant at the defendant's last known address and to the defendant's attorney of record.
(a) When two or more defendants are jointly indicted for a capital offense, any defendant so electing shall be separately tried unless the state shall waive the death penalty. When indicted for a capital felony when the death penalty is waived, or for a felony less than capital, or for a misdemeanor, such defendants may be tried jointly or separately in the discretion of the trial court. In any event, a jointly indicted defendant may testify for another jointly indicted defendant or on behalf of the state. When separate trials are ordered in any case, the defendants shall be tried in the order requested by the state. If the offense requires joint action and concurrence of two or more persons, acquittal or conviction of one defendant shall not operate as acquittal or conviction of others not tried.
(b) When two or more defendants are tried jointly for a crime or offense, such defendants shall be entitled to the same number of strikes as a single defendant if tried separately. The strikes shall be exercised jointly by the defendants or shall be apportioned among the defendants in the manner the court shall direct. In the event two or more defendants are tried jointly, the court, upon request of the defendants, shall allow an equal number of additional strikes to the defendants, not to exceed five each, as the court shall deem necessary, to the ends that justice may prevail. The court may allow the state additional strikes not to exceed the number of additional strikes as are allowed to the defendants.
(a) On the trial of all felonies the presiding judge shall have the testimony taken down and, when directed by the judge, the court reporter shall exactly and truly record or take stenographic notes of the testimony and proceedings in the case, except the argument of counsel. In the event of a verdict of guilty, the testimony shall be entered on the minutes of the court or in a book to be kept for that purpose. In the event that a sentence of death is imposed, the transcript of the case shall be prepared within 90 days after the sentence is imposed by the trial court. Upon petition by the court reporter, the Chief Justice of the Supreme Court of Georgia may grant an additional period of time for preparation of the transcript, such period not to exceed 60 days. The requirement that a transcript be prepared within a certain period in cases in which a sentence of death is imposed shall not inure to the benefit of a defendant.
(b) In the event that a mistrial results from any cause in the trial of a defendant charged with the commission of a felony, the presiding judge may, in his discretion, either with or without any application of the defendant or state's counsel, order that a brief or transcript of the testimony in the case be duly filed by the court reporter in the office of the clerk of the superior court in which the mistrial occurred. If the brief or transcript is ordered, it shall be the duty of the judge, in the order, to provide for the compensation of the reporter and for the transcript to be paid for as is provided by law for payment of transcripts in cases in which the law requires the testimony to be transcribed, at a rate not to exceed that provided in felony cases.
(a) Any judge of a municipal court of any municipality of this state or any judge hearing cases for any such court wherein a municipal court is a court of first instance in criminal cases shall have the authority to seal, to all persons except criminal justice officials, all criminal records of the municipality, including, but not limited to, records of arrest, fingerprints, and photographs, whether maintained in the police agency of the municipality or elsewhere in the municipality, related to any individual, upon a finding by such a judge that one of the following conditions exists:
(1) When, upon the call of a case for trial, criminal charges against the individual are dismissed either:
(A) Upon the motion of the arresting officer; or
(B) Because of the lack of prosecution of such charges by the arresting officer or the municipality; or
(2) When criminal charges against the individual are the subject of a pretrial disposition by the municipal prosecutor, provided that the terms and conditions of the pretrial disposition are satisfied.
(b) Any order sealing the records of an individual, as provided for in subsection (a) of this Code section, shall in no way constitute an adjudication of any illegal or wrongful action on the part of the arresting officer or the municipality.
In all cases, the party making an application for a continuance must show that he has used due diligence.
In all cases in which the defendant cannot, according to law, demand a speedy trial, a continuance shall not be granted to the state, except upon a reasonable showing therefor.
All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require. In all cases the presiding judges may, in their discretion, admit a counter-showing to a motion for a continuance and, after a hearing, may decide whether the motion shall prevail.
If either party is providentially prevented from attending the trial of any case and the counsel of the absent party will state in his place that he cannot go safely to trial without the presence of the absent party, the case shall be continued, provided his continuances are not exhausted.
The illness or absence, from providential cause, of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground for continuance, provided that the party making the application will swear that he cannot go safely to trial without the services of the absent counsel, that he expects his services at the next term, and that the application is not made for delay only.
In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial by the nearest practical route; that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.
(a) A member of the General Assembly who is a party to or the attorney for a party to a case; any member of the Office of Legislative Counsel, including the legislative counsel and persons provided for under subsection (d) of Code Section 28-4-3, appearing on behalf of the General Assembly in a case; or any member of the staff of the Lieutenant Governor, the Speaker of the House of Representatives, or the chairperson of the Judiciary Committee or Special Judiciary Committee of the Senate or of the Judiciary Committee or Judiciary, Non-civil Committee of the House of Representatives who is the lead counsel for a party to a case pending in any trial or appellate court or before any administrative agency of this state shall be granted a continuance and stay of the case. The continuance and stay shall apply to all aspects of the case, including, but not limited to, the filing and serving of an answer to a complaint, the making of any discovery or motion, or of any response to any subpoena, discovery, or motion, and appearance at any hearing, trial, or argument. Unless a shorter length of time is requested by the member, the continuance and stay shall last for the seven days prior to the regular or extraordinary session of the General Assembly; the length of any regular or extraordinary session of the General Assembly; during the first three weeks following any recess or adjournment, including an adjournment sine die of any regular or extraordinary session; and the entirety of any day during the calendar year on which a legislative committee for which the member serves or is staff holds a scheduled meeting. Notwithstanding any other provision of law, rule of court, or administrative rule or regulation, and to the extent permitted by the Constitutions of the United States and of the State of Georgia, the time for doing any act in the case which is delayed by the continuance or stay provided by this Code section shall be automatically extended by the same length of time as the continuance or stay covered.
(b)(1) For such other times not provided for in subsection (a) of this Code section, a member of the General Assembly who is a party to a case or the lead counsel for a party to a case may request a continuance and stay for such other times as the member of the General Assembly certifies to the court that his or her presence elsewhere is required by his or her duties with the General Assembly. The certification by the member of the General Assembly shall be in writing and shall state with particularity the nature of the General Assembly duties that require the continuance or stay. Opposing counsel, any person who is alleged in the case by the state to be a victim, or the court on its own motion shall have ten days from receipt of the request for a continuance or stay to object to the request by stating with particularity the grounds upon which it is determined that such stay or continuance will cause significant harm to the rights of a party or would otherwise be detrimental to the interest of justice. The court upon receipt of the objection, or on its own motion, shall consider the following in determining whether to grant or deny the continuance or stay:
(A) The length of time that the case has been pending;
(B) The length of delay that such stay or continuance will cause in the resolution of the case;
(C) The nature of the General Assembly duties that require the continuance or stay; and
(D) Such other factors that the court determines to be relevant in determining the harm to the rights of the parties or the interest of justice in the granting or denial of the request for a continuance or stay.
(2) Absent a ruling by the court denying the continuance or stay certified by the member under paragraph (1) of this subsection, such continuance or stay shall be considered granted as a matter of law.
When any case pending in the courts of this state in which the Attorney General is of counsel is scheduled to be called for any reason during sessions of the General Assembly or during a period of 15 days preceding or following sessions of the General Assembly, on motion of the Attorney General or an assistant attorney general, it shall be a good ground for continuance that the Attorney General and his staff are occupied in aid of the business of the General Assembly.
(a) Any person summoned to serve as a witness in a criminal case shall be excused by the judge from attendance at the court by reason of his attendance as a legislator at the General Assembly.
(b) In all criminal cases, it shall be the duty of the presiding judge, on motion of either the state or the defendant, to continue the case when it appears that a material witness is absent from the court by reason of his attendance at the General Assembly.
Should any member of the Board of Regents of the University System of Georgia or any member of the State Board of Education be engaged at the time of any meeting of the board as counsel or party in any case pending in the courts of this state and should the case be called for trial during the regular session of the board, the member's absence from attending the session shall be good ground for a postponement or continuance of the case until the session of the board has ended.
Should any member of the Board of Human Services or the Board of Behavioral Health and Developmental Disabilities be engaged at the time of any meeting of the board as counsel or party in any case pending in the courts of this state and should the case be called for trial during the regular session of the board, the absence of the member to attend the session shall be good ground for a postponement or a continuance of the case until the session of the board has ended.
(a) It shall be the duty of any judge of the courts of this state to continue any case in the court on or without motion when any party thereto or his or her leading attorney is absent from court when the case is reached by reason of his or her attendance on active duty as a member of the National Guard or a reserve or active component of the armed forces of the United States. The case may proceed if the party, in the absence of his or her leading attorney, or the leading attorney, in the absence of the party, announces ready for trial on the call of the case. If counsel is absent, it shall be necessary for his or her client to make oath that he or she cannot safely go to trial without the absent attorney and, if a party is absent, his or her counsel shall state in his or her place that he or she cannot safely go to trial without the client.
(b) It shall be the duty of any judge of the courts of this state to continue any case in the court upon a showing by the state or the defendant that a material and necessary witness is unavailable by reason of being on active duty as a member of the National Guard or as a member of a reserve or active component of the armed forces of the United States.
(c) In cases in which a demand for speedy trial has been filed in accordance with Code Section 17-7-170 or 17-7-171, the court shall grant the continuance if the party moving for a continuance pursuant to subsection (b) of this Code section establishes by testimony, affidavits, or other evidence that:
(1) The witness is material and necessary;
(2) The witness is located outside the territorial limits of the state;
(3) The party has submitted a request to the proper military authorities for the testimony of the witness in accordance with Section 301 of Title 5 of the United States Code and federal regulations or directives issued by the armed forces pursuant thereto; and
(4) The witness will not be available within the time limits prescribed by Code Section 17-7-170 or 17-7-171.
This continuance shall toll the running of the demand for speedy trial and shall continue the trial until the witness is released from active duty or the military makes the witness available to testify. If the witness only becomes available to testify within the last two weeks of the term of court in which the case must be tried, the case may be tried at the next succeeding term of court.
(d) In any case in which the court grants the state a continuance pursuant to subsection (c) of this Code section, the defendant shall have bail set upon application to the court, except in those cases punishable by death or imprisonment for life without parole. In any case in which the defendant is accused of committing a serious violent felony, as defined by subsection (a) of Code Section 17-10-6.1, the court shall consider but shall not be required to set bail.
No continuance shall be allowed in any court on account of the absence of a witness or for the purpose of procuring testimony when the opposite party is willing to admit, and does not contest the truth of, the facts expected to be proved; and the court shall order such admission to be reduced to writing.
(a) Every person against whom a true bill of indictment is found or an accusation is made shall be tried at the term of the court at which the indictment is found or the accusation is made unless the absence of a material witness or the principles of justice should require a continuance of the case, in which case the court shall allow a continuance until the next term of the court. The court shall have power to allow the continuance of criminal cases from term to term, as often as the principles of justice may require, upon sufficient cause shown under oath.
(b) No continuance shall be granted over the objection of the adverse party in any court which has a continuous session for 30 days or more where the cause for the continuance can be obviated by a postponement to a later day during the term. Whenever a motion and a proper showing for a continuance is made by either party, the presiding judge, at any time, shall set the case down for a later day during the same term if it shall be practicable thereby to avoid a continuance of the case until the next term.
When a case is sent back for trial to a superior, state, or city court by the Supreme Court or Court of Appeals, the case shall be in order for trial; and, if the continuances of either party are exhausted, the trial court may grant one continuance to the party, as the ends of justice may require.
The continuance of a case by one of several defendants indicted jointly shall not operate as a continuance as to the other defendants objecting thereto.
The judges of the superior, state, and city courts shall, upon the continuance of any case, enter the date of the continuance upon their dockets opposite the case and in open court make public announcement of the continuance.
When a court grants a continuance of a pending case for whatever cause, the continuance shall extend until the next term of court only.
A case not reached at the trial term stands over as continued.
The trial of inmates escaping from a state or county correctional institution shall take place in the superior court of the county in which the escape occurs, and inmates so escaping shall remain in the correctional institution after their apprehension and shall be treated as are other inmates until the trial takes place. At the trial, the copies of the records transmitted to the superintendent or warden of the state or county correctional institution, relative to the former trials of such inmates, shall be produced and filed of record in the superior court; and any other inmate not included in the same indictment shall be a competent witness.
At the trial of an inmate of a penal institution for the crime of mutiny, any other inmate not included in the same indictment shall be a competent witness, and the infamy of his character and of the crime of which he has been convicted shall be exceptions to his credit only.
(a) The following oath shall be administered to witnesses in criminal cases:
“Do you solemnly swear or affirm that the evidence you shall give to the court and jury in the matter now pending before the court shall be the truth, the whole truth, and nothing but the truth? So help you God.”
(b) Any oath given that substantially complies with the language in this Code section shall subject the witness to the provisions of Code Section 16-10-70.
During a trial in a court of any case in which the evidence is vulgar and obscene or relates to the improper acts of the sexes, and tends to debauch the morals of the young, the presiding judge shall have the right in his discretion and on his own motion, or on motion of a party or his attorney, to hear and try the case after clearing the courtroom of all or any portion of the audience.
In the trial of any criminal case, when any person under the age of 16 is testifying concerning any sexual offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, victim assistance coordinators, victims' advocates, and such other victim assistance personnel as provided for by Code Section 15-18-14.2, jurors, newspaper reporters or broadcasters, and court reporters.
(a) As used in this Code section, the term “child” means an individual who is under 17 years of age.
(b) This Code section shall apply to all proceedings when a child is a witness to or an alleged victim of a violation of Code Section 16-5-1, 16-5-20, 16-5-23, 16-5-23.1, 16-5-40, 16-5-70, 16-5-90, 16-5-95, 16-6-1, 16-6-2, 16-6-3, 16-6-4, 16-6-5, 16-6-5.1, 16-6-11, 16-6-22, 16-6-22.1, 16-6-22.2, 16-8-41, or 16-15-4.
(c) The court, upon the motion of the prosecuting attorney or the parent, legal guardian, or custodian of a child, or on its own motion, shall hold an evidentiary hearing to determine whether a child shall testify outside the physical presence of the accused. Such motion shall be filed, or requested by the court, at least ten days prior to trial unless the court shortens such time period for good cause, as it deems just under the circumstances.
(d) The court may order a child to testify outside the physical presence of the accused, provided that the court finds by a preponderance of the evidence that such child is likely to suffer serious psychological or emotional distress or trauma which impairs such child's ability to communicate as a result of testifying in the presence of the accused. In determining whether a preponderance of the evidence has been shown, the court may consider any one or more of the following circumstances:
(1) The manner of the commission of the offense being particularly heinous or characterized by aggravating circumstances;
(2) The child's age or susceptibility to psychological or emotional distress or trauma on account of a physical or mental condition which existed before the alleged commission of the offense;
(3) At the time of the alleged offense, the accused was:
(A) The parent, guardian, legal custodian, or other person responsible for the custody or care of the child at the relevant time; or
(B) A person who maintains or maintained an ongoing personal relationship with such child's parent, guardian, legal custodian, or other person responsible for the custody or care of the child at the relevant time and the relationship involved the person living in or frequent and repeated presence in the same household or premises as the child;
(4) The alleged offense was part of an ongoing course of conduct committed by the accused against the child over an extended period of time;
(5) A deadly weapon or dangerous instrument was used during the commission of the alleged offense;
(6) The accused has inflicted serious physical injury upon the child;
(7) A threat, express or implied, of physical violence to the child or a third person if the child were to report the incident to any person or communicate information to or cooperate with a court, grand jury, prosecutor, police officer, or law enforcement office concerning the incident has been made by or on behalf of the accused;
(8) A threat, express or implied, of the incarceration of a parent, relative, or guardian of the child, the removal of the child from the family, or the dissolution of the family of the child if the child were to report the incident to any person or communicate information to or cooperate with a court, grand jury, prosecutor, police officer, or law enforcement office concerning the incident has been made by or on behalf of the accused;
(9) A witness other than the child has received a threat of physical violence directed at such witness or to a third person by or on behalf of the accused, and the child is aware of such threat;
(10) The accused, at the time of the inquiry:
(A) Is living in the same household with the child;
(B) Has ready access to the child; or
(C) Is providing substantial financial support for the child; or
(11) According to expert testimony, the child would be particularly susceptible to psychological or emotional distress or trauma if required to testify in open court in the physical presence of the accused.
(e) A court order allowing or not allowing a child to testify outside the physical presence of the accused shall state the findings of fact and conclusions of law that support the court's determination. An order allowing the use of such testimony shall:
(1) State the method by which such child shall testify;
(2) List any individual or category of individuals allowed to be in the presence of such child during such testimony, including the individuals the court finds contribute to the welfare and well-being of the child during his or her testimony;
(3) State any special conditions necessary to facilitate the cross-examination of such child;
(4) State any condition or limitation upon the participation of individuals in the child's presence during such child's testimony;
(5) Provide that the accused shall not be permitted to be in the physical presence of a child during his or her testimony if the accused is pro se;
(6) Provide that if counsel for the accused or the accused is precluded from being physically present during the child's testimony, then the prosecuting attorney shall likewise be precluded from being physically present; and
(7) State any other condition necessary for taking or presenting such testimony.
(f) The method used for allowing a child to testify outside the physical presence of the accused shall allow the judge, jury, and accused to observe the demeanor of the child as if he or she were testifying in the courtroom. When such testimony occurs it shall be transmitted to the courtroom by any device or combination of devices capable of projecting a live visual and oral transmission, including, but not limited to, a two-way closed circuit television broadcast, an Internet broadcast, or other simultaneous electronic means. The court shall ensure that:
(1) The transmitting equipment is capable of making an accurate transmission and is operated by a competent operator;
(2) The transmission is in color and the child is visible at all times;
(3) Every voice on the transmission is audible and identified;
(4) The courtroom is equipped with monitors which permit the jury, the accused, and others present in the courtroom to see and hear the transmission; and
(5) The image and voice of the child, as well as the image of all other persons other than the operator present in the testimonial room, are transmitted live.
(a) The judges of the superior, state, and city courts shall, when the counsel for either party requests it before argument begins, write out their charges and read them to the jury; and it shall be error to give any other or additional charge than that so written and read.
(b) The charge so written out and read shall be filed with the clerk of the court in which it was given and shall be accessible to all persons interested in it. The clerk shall give certified copies of the charge to any person applying therefor, upon payment of the usual fee.
(c) This Code section shall not apply when there is an official stenographer or reporter of the court in attendance thereon who takes down in shorthand and writes out the full charge of the trial judge in the case upon the direction of court.
(a)(1) It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge's opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused.
(2) Any party who alleges a violation of paragraph (1) of this subsection shall make a timely objection and inform the court of the specific objection and the grounds for such objection, outside of the jury's hearing and presence. After such objection has been made, and if it is sustained, it shall be the duty of the court to give a curative instruction to the jury or declare a mistrial, if appropriate.
(b) Except as provided in subsection (c) of this Code section, failure to make a timely objection to an alleged violation of paragraph (1) of subsection (a) of this Code section shall preclude appellate review, unless such violation constitutes plain error which affects substantive rights of the parties. Plain error may be considered on appeal even when a timely objection informing the court of the specific objection was not made, so long as such error affects substantive rights of the parties.
(c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.
(a) Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Such objections shall be done outside of the jury's hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code section shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the court's attention as provided in subsection (a) of this Code section.
Not more than two counsel shall be permitted to argue any case for each side, except by express leave of the court. In no case shall more than one counsel for each side be heard in conclusion.
After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. The defendant shall be entitled to make a closing argument prior to the concluding argument of the prosecuting attorney.
In all misdemeanor cases and cases brought up from inferior judicatories, counsel for either party shall not occupy more than one-half hour in the whole discussion of the case after the evidence is closed without obtaining special leave of the court before the argument is opened.
In felony cases other than those involving capital felonies, counsel shall be limited in their closing arguments to one hour for each side. In cases involving capital felonies, counsel shall be limited to two hours for each side.
If, before argument begins, counsel on either side applies to the court for an extension of the time prescribed for argument and states in his place or on oath, in the discretion of the court, that he cannot do the case justice within the time prescribed and that it will require for that purpose additional time, stating how much additional time will be necessary, the court shall grant such extension of time as may seem reasonable and proper, provided that the extension of time granted in misdemeanor cases or cases brought up from inferior judicatories shall not exceed 30 minutes.
Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.
(a) No attorney at law in a criminal case shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by the court or jury because pardon, parole, or clemency of any nature may be granted by the Governor, the State Board of Pardons and Paroles, or other proper authority vested with the right to grant clemency.
(b) If counsel for either side in a criminal case argues to or in the presence of the jury as provided in subsection (a) of this Code section, opposing counsel shall have the right immediately to request the court to declare a mistrial, in which case it shall be mandatory upon the court to declare a mistrial. Failure to declare a mistrial shall constitute reversible error.
(c) This Code section shall be construed as setting forth requirements in addition to other requirements of law.
(a) Where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or “not guilty” as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any.
(b) The defendant shall be entitled to move for a directed verdict at the close of the evidence offered by the prosecuting attorney or at the close of the case, even if he fails to introduce any evidence at the trial. A defendant who moves for a directed verdict at the close of the evidence offered by the prosecuting attorney may offer evidence in the event that the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted shall not be deemed to be a waiver of the right to trial by jury. The order of the court granting a motion for a directed verdict of acquittal is effective without any assent of the jury.
The jury shall be the judges of the law and the facts in the trial of all criminal cases and shall give a general verdict of “guilty” or “not guilty.” Upon a verdict of “guilty,” the sentence shall be imposed by the judge, unless otherwise provided by law. Verdicts are to have a reasonable intendment, are to receive a reasonable construction, and are not to be avoided unless from necessity.
In all capital cases, other than those of homicide, when the verdict is “guilty,” with a recommendation for mercy, it shall be legal and shall mean imprisonment for life. When the verdict is “guilty,” without a recommendation for mercy, it shall be legal and shall mean that the convicted person shall be sentenced to death. When it is shown that a person convicted of a capital offense without a recommendation for mercy had not reached his seventeenth birthday at the time of the commission of the offense, the punishment of such person shall not be death but shall be imprisonment for life.
The judgment of a court having no jurisdiction of the person or subject matter, or void for any other cause, is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.
A juror shall not act on his or her private knowledge respecting the facts, witnesses, or parties.
Verdicts shall be received only in open court, in the absence of agreement of the parties.
(a) No judge of any court shall either directly or indirectly express in open court his approval or disapproval of the verdict of any jury in any case tried before him, except as provided in subsection (c) of this Code section; nor may any judge discharge any jury upon the ground that the verdict rendered in any case does not meet with his approval.
(b) If any judge of any court either directly or indirectly expresses in open court his approval or disapproval of the verdict of the jury in any case tried before him, he shall be disqualified from presiding in the case in the event a new trial is granted.
(c) Nothing in this Code section shall have the effect of prohibiting a judge of any court from approving or disapproving the verdict of a jury in any case tried before him in hearing a motion for a new trial that comes on before him; but the approval or disapproval on the hearing of a motion for new trial shall be expressed in the formal order of the judge in granting or overruling the motion and not otherwise.
No judge of any court may commend or compliment a jury during the term of any court for discharging its duty if the commendation or compliment has the effect of approving of a verdict.
A verdict may be amended in mere matter of form after the jury have dispersed; but, after it has been received, recorded, and the jury dispersed, it may not be amended in matter of substance, either by what the jurors say they intended to find or otherwise.
All motions to arrest a judgment must be made to the court by which the judgment was rendered, and the opposite party must have reasonable notice of such motions.
(a) When a judgment has been rendered, either party may move in arrest thereof for any defect not amendable which appears on the face of the record or pleadings.
(b) A motion in arrest of judgment must be made during the term at which the judgment was obtained.
A judgment may not be arrested for any defect in the pleadings or record that is aided by verdict or amendable as a matter of form.
No motion in arrest of judgment shall be granted for any matter not affecting the real merits of the offense charged in the indictment or accusation.
(a)(1)(A) Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed, upon a verdict or plea of guilty in any case involving a misdemeanor or felony, and after a presentence hearing, the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years which shall be within the minimum and maximum sentences prescribed by law as the punishment for the crime. The judge imposing the sentence is granted power and authority to suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper, including service of a probated sentence in the sentencing options system, as provided by Article 6 of Chapter 3 of Title 42, and including the authority to revoke the suspension or probation when the defendant has violated any of the rules and regulations prescribed by the court, even before the probationary period has begun, subject to the conditions set out in this subsection; provided, however, that such action shall be subject to the provisions of Code Sections 17-10-6.1 and 17-10-6.2.
(B)(i) When a defendant with no prior felony conviction is convicted of felony offenses or is charged with felony offenses and is sentenced pursuant to subsection (a) or (c) of Code Section 16-13-2 or Article 3 of Chapter 8 of Title 42, and the court imposes a sentence of probation or not more than 12 months of imprisonment followed by a term of probation, the court shall include a behavioral incentive date in its sentencing order that does not exceed three years from the date such sentence is imposed. Within 60 days of the expiration of such incentive date, if the defendant has (1) paid all restitution owed; (2) not had his or her probation revoked in the immediately preceding 24 months, or when the court includes a behavioral incentive date less than two years from the date a sentence was imposed, not had his or her probation revoked during such period; and (3) not been arrested for anything other than a nonserious traffic offense as defined in Code Section 35-3-37, the Department of Community Supervision shall notify the prosecuting attorney and the court of such facts. The Department of Community Supervision shall provide the court with an order to terminate such defendant's probation which the court shall execute unless the court or the prosecuting attorney requests a hearing on such matter within 30 days of the receipt of such order. The court shall set the matter for a hearing as soon as possible but not more than 90 days after receiving the order to terminate. The court shall take whatever action it determines would be for the best interest of justice and the welfare of society.
(ii) This subparagraph is intended to be retroactive and shall be applied to any case in which a person with no prior felony conviction was convicted of felony offenses or was charged with felony offenses and was sentenced pursuant to subsection (a) or (c) of Code Section 16-13-2 or Article 3 of Chapter 8 of Title 42, and the court imposed a sentence of probation or a sentence of not more than 12 months of imprisonment followed by a term of probation. A behavioral incentive date shall as a matter of law be included in the sentencing order, but in a case where it was not, the behavioral incentive date shall be three years from the date such sentence was imposed.
(2)(A) Active probation supervision shall terminate in all cases no later than two years from the commencement of active probation supervision unless specially extended or reinstated by the sentencing court upon notice and hearing and for good cause shown; provided, however, that in those cases involving:
(i) The collection of restitution, the period of active probation supervision shall remain in effect for so long as any such obligation is outstanding, or until termination of the sentence, whichever first occurs;
(ii) A conviction under Chapter 15 of Title 16, the “Georgia Street Gang Terrorism and Prevention Act,” the period of active probation supervision shall remain in effect until the termination of the sentence, but shall not exceed five years unless as otherwise provided in this paragraph; or
(iii) A conviction that requires the defendant to register on the state sexual offender registry pursuant to Code Section 42-1-12, the period of active probation supervision shall remain in effect until the court orders unsupervised probation, or until termination of the sentence, whichever first occurs.
(B) Probation supervision shall not be required for defendants sentenced to probation while the defendant is in the legal custody of the Department of Corrections or the State Board of Pardons and Paroles.
(3)(A) Any part of a sentence of probation revoked for a violation other than a subsequent commission of any felony, a violation of a special condition, or a misdemeanor offense involving physical violence resulting in bodily injury to an innocent victim which in the opinion of the trial court constitutes a danger to the community or a serious infraction occurring while the defendant is assigned to an alternative probation confinement facility shall be served in a probation detention center, probation boot camp, weekend lock up, or confinement in a local jail or detention facility, or other community correctional alternatives available to the court or provided by the Department of Corrections.
(B) A parolee or probationer charged with a misdemeanor involving physical injury or an attempt to commit physical injury or terroristic threats or with a new felony shall not be entitled to bond pending a hearing on the revocation of his or her parole or probation, except by order of a judge of the superior, state, or magistrate court wherein the alleged new offense occurred after a hearing and upon determination of the superior, state, or magistrate court that the parolee or probationer does not constitute a threat to the community; provided, however, that this subparagraph does not authorize state or magistrate court judges to grant bail for a person charged with any offense listed in subsection (a) of Code Section 17-6-1.
(4) In cases of imprisonment followed by probation, the sentence shall specifically provide that the period of probation shall not begin until the defendant has completed service of the confinement portion of the sentence. No revocation of any part of a probated sentence shall be effective while a defendant is in the legal custody of the State Board of Pardons and Paroles.
(5)(A) When a defendant has been sentenced to probation, the court shall retain jurisdiction throughout the period of the probated sentence as provided for in subsection (g) of Code Section 42-8-34. Without limiting the generality of the foregoing, the court may shorten the period of active probation supervision or unsupervised probation on motion of the defendant or on its own motion, or upon the request of a community supervision officer, if the court determines that probation is no longer necessary or appropriate for the ends of justice, the protection of society, and the rehabilitation of the defendant. When the court is presented with a petition to shorten the period of active probation supervision or unsupervised probation, the court shall set the matter for a hearing as soon as possible but not more than 90 days after receiving such motion. Prior to entering any order for shortening a period of probation, the court shall afford notice to the victim or victims of all sex related offenses or violent offenses resulting in serious bodily injury or death and, upon request of the victim or victims so notified, shall afford notice and an opportunity for hearing to the defendant and the prosecuting attorney.
(B) The Department of Community Supervision shall establish a form document which shall include the elements set forth in this Code section concerning notification of victims and shall make copies of such form available to prosecuting attorneys in this state. When requested by the victim, the form document shall be provided to the victim by the prosecuting attorney. The form shall include the address of the community supervision office having jurisdiction over the case and contain a statement that the victim must maintain a copy of his or her address with the community supervision office and must notify the office of any change of address in order to maintain eligibility for notification by the Department of Community Supervision as required in this Code section.
(6)(A) Except as otherwise authorized by law, no court shall modify, suspend, probate, or alter a previously imposed sentence so as to reduce or eliminate a period of incarceration or probation and impose a financial payment which:
(i) Exceeds the statutorily specified maximum fine, plus all penalties, fees, surcharges, and restitution permitted or authorized by law; or
(ii) Is to be made to an entity which is not authorized by law to receive fines, penalties, fees, surcharges, or restitution.
(B) The prohibitions contained in this paragraph shall apply regardless of whether a defendant consents to the modification, suspension, probation, or alteration of such defendant's sentence and the imposition of such payment.
(C) Nothing in this paragraph shall prohibit or prevent a court from requiring, as a condition of suspension, modification, or probation of a sentence in a criminal case involving child abandonment, that the defendant pay all or a portion of child support which is owed to the custodial parent of a child which is the subject of such case.
(7) As used in this subsection, the term:
(A) “Active probation supervision” means the period of a probated sentence in which a probationer actively reports to his or her community supervision officer or is otherwise under the direct supervision of a community supervision officer.
(B) “Unsupervised probation” means the period of a probated sentence that follows active probation supervision in which:
(i) All of the conditions and limitations imposed by the court remain intact;
(ii) A probationer may have reduced reporting requirements; and
(iii) A community supervision officer shall not actively supervise such probationer.
(b) The judge, in fixing the sentence as prescribed in subsection (a) of this Code section, may make a determination as to whether the person being sentenced should be considered for parole prior to the completion of any requirement otherwise imposed by law relating to the completion of service of any specified time period before parole eligibility. In the event that the judge so determines, he or she may specify in the sentence that the person is sentenced under this subsection and may provide that the State Board of Pardons and Paroles, acting in its sole discretion, may consider and may parole any person so sentenced at any time prior to the completion of any minimum requirement otherwise imposed by law, rule, or regulation for the service of sentences or portions thereof. The determination allowed in this subsection shall be applicable to first offenders only.
(c) In any case in which a minor defendant who has not achieved a high school diploma or the equivalent is placed under a probated or suspended sentence, the court may require as a condition of probation or suspension of sentence that the defendant pursue a course of study designed to lead to achieving a high school diploma or the equivalent; and, in any case in which such a condition of probation may be imposed, the court shall give express consideration to whether such a condition should be imposed.
(d)(1) As used in this subsection, the term:
(A) “Developmental disability” shall have the same meaning as set forth in Code Section 37-1-1.
(B) “Indigent” means an individual who earns less than 100 percent of the federal poverty guidelines unless there is evidence that the individual has other resources that might reasonably be used without undue hardship for such individual or his or her dependents.
(C) “Significant financial hardship” means a reasonable probability that an individual will be unable to satisfy his or her financial obligations for two or more consecutive months.
(D) “Totally and permanently disabled” shall have the same meaning as set forth in Code Section 49-4-80.
(2) In determining the financial obligations, other than restitution, to impose on the defendant, the court shall consider:
(A) The defendant's financial resources and other assets, including whether any such assets are jointly controlled;
(B) The defendant's earnings and other income;
(C) The defendant's financial obligations, including obligations to dependents;
(D) The period of time during which the probation order will be in effect;
(E) The goal of the punishment being imposed; and
(F) Any other factor the court deems appropriate.
(3) In any case involving a violation of local ordinance, misdemeanor, or felony in which the defendant has been punished in whole or in part by a fine, the court shall be authorized to allow the defendant to satisfy such fine or any fee imposed in connection with probation supervision through community service as set forth in Article 3 of Chapter 3 of Title 42. One hour of community service shall equal the dollar amount of one hour of paid labor at the minimum wage under the federal Fair Labor Standards Act of 1938, in effect on January 1, 2018, unless otherwise specified by the court. A defendant shall be required to serve the number of hours in community service which equals the number derived by dividing the amount owed by the defendant, including moneys assessed by a provider of probation services, by the federal minimum hourly wage or by the amount specified by the court. If the court orders educational advancement, the court shall determine the numbers of hours required to be completed. Prior to or subsequent to sentencing, a defendant, or subsequent to sentencing, a community supervision officer, may request that the court make all or any portion of the amount owed by the defendant be satisfied under this subsection.
(4) At the time of sentencing, the court may waive the imposition of a fine, exclusive of the payment of statutory surcharges, upon a determination that a defendant has a significant financial hardship or inability to pay or other extenuating factors exist that prohibit payment or collection of such fine. When determining significant financial hardship, the court may consider whether the defendant is indigent and whether the defendant or his or her dependents has a developmental disability or is totally and permanently disabled. If the court waives the imposition of a fine under this paragraph, it shall instead impose a theoretical fine and the defendant shall be required to pay the statutory surcharges associated therewith.
(e) In any case involving a felony in which the defendant previously appeared before a juvenile court, the records of the dispositions of the defendant as well as any evidence used in any juvenile court hearing shall be available to the district attorney, the defendant, and the superior court judge in determining sentencing as provided in Code Section 15-11-703.
(f) Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed. The time periods prescribed in this subsection require the defendant to file a motion within such time periods; however, the court shall not be constrained to issue its order or hear the matter within such time periods. Prior to entering any order correcting, reducing, or modifying any sentence, the court shall afford notice and an opportunity for a hearing to the prosecuting attorney. Any order modifying a sentence which is entered without notice and an opportunity for a hearing as provided in this subsection shall be void. This subsection shall not limit any other jurisdiction granted to the court in this Code section or as provided for in subsection (g) of Code Section 42-8-34.
(g)(1)(A) In sentencing a defendant convicted of a felony to probated confinement, the sentencing judge may make the defendant's participation in a work release program operated by a county a condition of probation, provided that such program is available and the administrator of such program accepts the inmate.
(B) Any defendant accepted into a county work release program shall thereby be transferred into the legal custody of the administrator of said program; likewise, any defendant not accepted shall remain in the legal custody of the Department of Corrections.
(2) Work release status granted by the court may be revoked for cause by the sentencing court in its discretion or may be revoked by the state or local authority operating the work release program for any reason for which work release status would otherwise be revoked.
(3) The provisions of this subsection shall not limit the authority of the commissioner to authorize work release status pursuant to Code Section 42-5-59 or apply to or affect the authority to authorize work release of county prisoners, which shall be as provided for in Code Sections 42-1-4 and 42-1-9 or as otherwise provided by law.
(4) This subsection shall not apply with respect to any violent felony or any offense for which the work release status is specifically prohibited by law, including but not limited to serious violent felonies as specified in Code Section 17-10-6.1.
(a) A prosecuting attorney bringing charges against a defendant shall notify, where practical, the alleged victim or, when the victim is no longer living, a member of the victim's family of his or her right to submit a victim impact form.
(b)(1) A victim impact form shall identify the victim of the offense and the perpetrator.
(2) A victim impact form may itemize any economic loss suffered by the victim as a result of the offense and may:
(A) Identify any physical injury suffered by the victim as a result of the offense along with its seriousness and permanence;
(B) Describe any change in the victim's personal welfare or familial relationships as a result of the offense; and
(C) Contain any other information related to the impact of the offense upon the victim or the victim's family that the victim wishes to include.
(c) The Prosecuting Attorneys' Council of Georgia shall establish forms which are designed to obtain the information specified by subsection (b) of this Code section. The Prosecuting Attorneys' Council of Georgia shall make copies of such form available to prosecuting attorneys in the state. It shall be the duty of the prosecuting attorney or his or her designee to make such forms available to crime victims.
(d) The victim may complete a victim impact form and submit such form to the appropriate prosecuting attorney charged with the prosecution of the case. If the victim is unable to do so because of such victim's mental, emotional, or physical incapacity, or because of such victim's age, the victim's attorney or a family member may complete the victim impact form on behalf of the victim.
(e)(1) If, prior to trial, the defendant engages in discussion with the prosecuting attorney for the purpose of reaching a plea agreement or other pretrial disposition of his or her case, the prosecuting attorney shall, upon the request of the defendant, provide the defendant with a copy of the victim impact form relating to the defendant's case within a reasonable time prior to such discussions.
(2) If the prosecuting attorney intends to present information from a victim impact form to the court at any hearing at which sentencing or a determination of restitution will be considered by the court, the prosecuting attorney shall furnish a copy of the victim impact form to the defendant not less than five days prior to any such hearing. The defendant shall have the right to rebut the information contained in the victim impact form.
(3) The court shall consider the victim impact form that is presented to the court prior to imposing a sentence or making a determination as to the amount of restitution.
(f) If for any reason a victim was not allowed an opportunity to make a written victim impact statement, the victim may submit a victim impact statement to the State Board of Pardons and Paroles in any case prior to consideration of parole.
(g) No sentence shall be invalidated because of failure to comply with the provisions of this Code section. This Code section shall not be construed to create any cause of action or any right of appeal on behalf of any person.
(a)(1) In all cases in which the death penalty may be imposed, subsequent to an adjudication of guilt and in conjunction with the procedures in Code Section 17-10-30, the court shall allow evidence from the family of the victim, or such other witness having personal knowledge of the victim's personal characteristics and the emotional impact of the crime on the victim, the victim's family, or the community. Except as provided in paragraph (4) of this subsection, such evidence shall be given in the presence of the defendant and of the jury and shall be subject to cross-examination.
(2) The admissibility of the evidence described in paragraph (1) of this subsection and the number of witnesses other than immediate family who may testify shall be in the sole discretion of the judge and in any event shall be permitted only in such a manner and to such a degree as not to inflame or unduly prejudice the jury. As used in this paragraph, the term “immediate family” means the victim's spouse, child, parent, stepparent, grandparent, grandchild, sibling, stepbrother, stepsister, mother-in-law, father-in-law, sister-in-law, or brother-in-law and the spouses of any such individuals.
(3) In all cases other than those in which the death penalty may be imposed, prior to fixing of the sentence as provided for in Code Section 17-10-1 or the imposing of life imprisonment as mandated by law, and before rendering the appropriate sentence, including any order of restitution, the court shall allow the victim, as such term is defined in Code Section 17-17-3, the family of the victim, or such other witness having personal knowledge of the crime to testify about the impact of the crime on the victim, the family of the victim, or the community. Except as provided in paragraph (4) of this subsection, such evidence shall be given in the presence of the defendant and shall be subject to cross-examination. The admissibility of the testimony and evidence in support of such testimony shall be in the sole discretion of the judge and in any event shall be permitted only in such a manner as to allow for cross-examination by the defendant and to such a degree as not to unduly prejudice the defendant. If the judge excludes the testimony or evidence in support of such testimony, the state shall be allowed to make a proffer of such testimony or evidence.
(4) Upon a finding by the court specific to the case and the witness that the witness would not be able to testify in person without showing undue emotion or that testifying in person will cause the witness severe physical or emotional distress or trauma, evidence presented pursuant to this subsection may be in the form of, but not limited to, a written statement or a prerecorded audio or video statement, provided that such witness is subject to cross-examination and the evidence itself will not be available to the jury during deliberations. Photographs of the victim may be included with any evidence presented pursuant to this subsection.
(5) If the accused has been convicted of a serious violent felony as defined in Code Section 17-10-6.1, attempted murder or attempted kidnapping, or any violation of Code Section 16-5-90, 16-5-91, 16-7-82, 16-7-84, or 16-7-86, and the victim or a representative of the victim is not present at the presentence hearing, it shall be the duty of the court to inquire of the prosecuting attorney whether or not the victim has been notified of the presentence hearing as provided in Code Section 17-17-5. If the court finds that the prosecuting attorney has not made a reasonable attempt to notify the victim, the presentence hearing shall be recessed in order to provide the victim the opportunity to attend prior to sentence being imposed; provided, however, that prior to recessing the presentence hearing, the court shall allow the state or the accused to call any witnesses who were subpoenaed and are present at such presentence hearing. Following any such testimony, the presentence hearing shall be recessed and the victim shall be notified of the date, time, and location when the presentence hearing shall resume.
(b) In presenting such evidence, the victim, the family of the victim, or such other witness having personal knowledge of the impact of the crime on the victim, the victim's family, or the community shall, if applicable:
(1) Describe the nature of the offense;
(2) Itemize any economic loss suffered by the victim or the family of the victim, if restitution is sought;
(3) Identify any physical injury suffered by the victim as a result of the offense along with its seriousness and permanence;
(4) Describe any change in the victim's personal welfare or familial relationships as a result of the offense;
(5) Identify any request for psychological services initiated by the victim or the victim's family as a result of the offense; and
(6) Include any other information related to the impact of the offense upon the victim, the victim's family, or the community that the court inquires of.
(c) The court shall allow the defendant the opportunity to cross-examine and rebut the evidence presented of the victim's personal characteristics and the emotional impact of the crime on the victim, the victim's family, or the community, and such cross-examination and rebuttal evidence shall be subject to the same discretion set forth in paragraph (1) of subsection (a) of this Code section.
(d) No sentence shall be invalidated because of failure to comply with the provisions of this Code section. This Code section shall not be construed to create any cause of action or any right of appeal on behalf of the victim, the state, or the accused; provided, however, that if the court intentionally fails to comply with this Code section, the victim may file a complaint with the Judicial Qualifications Commission.
(a) In determining whether to probate all or any part of any sentence of confinement in any felony, misdemeanor, or ordinance violation case, the sentencing court shall be authorized to make inquiry into whether the person to be sentenced is lawfully present in the United States under federal law.
(b) If the court determines that the person to be sentenced is not lawfully present in the United States, the court shall be authorized to make inquiry into whether the person to be sentenced would be legally subject to deportation from the United States while serving a probated sentence.
(c) If the court determines that the person to be sentenced would be legally subject to deportation from the United States while serving a probated sentence, the court may:
(1) Consider the interest of the state in securing certain and complete execution of its judicial sentences in criminal and quasi-criminal cases;
(2) Consider the likelihood that deportation may intervene to frustrate that state interest if probation is granted; and
(3) Where appropriate, decline to probate a sentence in furtherance of the state interest in certain and complete execution of sentences.
(d) This Code section shall apply with respect to a judicial determination as to whether to suspend all or any part of a sentence of confinement in the same manner as this Code section applies to determinations with respect to probation.
(a) As used in this Code section, the term “split sentence” means any felony sentence that includes a term of imprisonment followed by a term of probation.
(b) In any case where a judge on or after July 1, 2015, sentences a defendant to a split sentence, post-incarceration supervision of the defendant shall be conducted exclusively by the Department of Community Supervision and not by the State Board of Pardons and Paroles, regardless of whether the defendant has served the full period of incarceration ordered in the sentence or has been released prior to the full period of incarceration by parole, conditional release, or other action of the State Board of Pardons and Paroles.
(a)(1) Except in cases in which the death penalty may be imposed, upon the return of a verdict of “guilty” by the jury in any felony case, the judge shall dismiss the jury and shall conduct a presentence hearing at which the only issue shall be the determination of punishment to be imposed. In the hearing the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the accused, or the absence of any prior conviction and pleas.
(2) The judge shall also hear argument by the accused or the accused's counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. Except in cases where the death penalty may be imposed, the prosecuting attorney shall open and conclude the argument. In cases where the death penalty may be imposed, the prosecuting attorney shall open and the accused or the accused's counsel shall conclude the argument.
(3) Upon the conclusion of the evidence and arguments, the judge shall impose the sentence or shall recess the trial for the purpose of taking the sentence to be imposed under advisement. The judge shall fix a sentence within the limits prescribed by law.
(b) In cases in which the death penalty may be imposed, the judge, when sitting without a jury, in addition to the procedure set forth in subsection (a) of this Code section, shall follow the procedures provided for in Code Section 17-10-30.
(c) In all cases tried by a jury in which the death penalty may be imposed, upon a return of a verdict of “guilty” by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. The hearing shall be conducted in the same manner as presentence hearings conducted before the judge as provided for in subsection (a) of this Code section. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in Code Section 17-10-30, exist and whether to recommend mercy for the accused. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.
(d) If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.
(a) Except as otherwise provided by law, every crime declared to be a misdemeanor shall be punished as follows:
(1) By a fine not to exceed $1,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both;
(2) By confinement under the jurisdiction of the Board of Corrections in a state probation detention center pursuant to Code Section 42-8-35.4 for a determinate term of months which shall not exceed a total term of 12 months; or
(3) If the crime was committed by an inmate within the confines of a state correctional institution, by confinement under the jurisdiction of the Board of Corrections in a state correctional institution or such other institution as the Department of Corrections may direct for a term which shall not exceed 12 months.
(b) Either the punishment provided in paragraph (1) or (2) of subsection (a) of this Code section, but not both, may be imposed in the discretion of the sentencing judge. Misdemeanor punishment imposed under either paragraph may be subject to suspension or probation. The sentencing courts shall retain jurisdiction to amend, modify, alter, suspend, or probate sentences under paragraph (1) of subsection (a) of this Code section at any time, but in no instance shall any sentence under the paragraph be modified in a manner to place a county inmate under the jurisdiction of the Board of Corrections, except as provided in paragraph (2) of subsection (a) of this Code section.
(c) In all misdemeanor cases in which, upon conviction, a six-month sentence or less is imposed, it is within the authority and discretion of the sentencing judge to allow the sentence to be served on weekends by weekend confinement or during the nonworking hours of the defendant. A weekend shall commence and shall end in the discretion of the sentencing judge, and the nonworking hours of the defendant shall be determined in the discretion of the sentencing judge; provided, however, that the judge shall retain plenary control of the defendant at all times during the sentence period. A weekend term shall be counted as serving two days of the full sentence. Confinement during the nonworking hours of a defendant during any day may be counted as serving a full day of the sentence.
(d) In addition to or instead of any other penalty provided for the punishment of a misdemeanor involving a traffic offense, or punishment of a municipal ordinance involving a traffic offense, with the exception of habitual offenders sentenced under Code Section 17-10-7, a judge may impose any one or more of the following sentences:
(1) Reexamination by the Department of Driver Services when the judge has good cause to believe that the convicted licensed driver is incompetent or otherwise not qualified to be licensed;
(2) Satisfactory completion of a defensive driving course or defensive driving program approved by the Department of Driver Services;
(3) Within the limits of the authority of the charter powers of a municipality or the punishment prescribed by law in other courts, imprisonment at times specified by the court or release from imprisonment upon such conditions and at such times as may be specified; or
(4) Probation or suspension of all or any part of a penalty upon such terms and conditions as may be prescribed by the judge. The conditions may include driving with no further motor vehicle violations during a specified time unless the driving privileges have been or will be otherwise suspended or revoked by law; reporting periodically to the court or a specified agency; and performing, or refraining from performing, such acts as may be ordered by the judge.
(e) Any sentence imposed under subsection (d) of this Code section shall be reported to the Department of Driver Services as prescribed by law.
(f) The Department of Community Supervision shall lack jurisdiction to supervise misdemeanor offenders, except when the sentence is made concurrent to a probated felony sentence or as provided in Code Section 42-8-109.5. Except as provided in this subsection, the Department of Corrections shall lack jurisdiction to confine misdemeanor offenders.
(g) This Code section will have no effect upon any offender convicted of a misdemeanor offense prior January 1, 2001, and sentenced to confinement under the jurisdiction of the Board of Corrections or to the supervision of the Department of Corrections.
(a) In any case where a person is sentenced to a period of imprisonment under Code Section 40-6-391 upon conviction for violating subsection (k) of said Code section, it is within the authority and discretion of the sentencing judge in cases involving the first such violation to allow the sentence to be served on weekends by weekend confinement or during the nonworking hours of the defendant. A weekend shall commence and shall end in the discretion of the sentencing judge, and the nonworking hours of the defendant shall be determined in the discretion of the sentencing judge; provided, however, that the judge shall retain plenary control of the defendant at all times during the sentence period. Confinement during the nonworking hours of a defendant during any day may be counted as serving a full day of the sentence.
(b) Any confinement of a person pursuant to a sentence to a period of imprisonment under Code Section 40-6-391 upon conviction for violating subsection (k) of said Code section shall be served in a county jail, provided that for the first such violation such person shall be kept segregated from all offenders other than those confined for violating subsection (k) of Code Section 40-6-391.
(a) A person who is convicted of a misdemeanor of a high and aggravated nature shall be punished by a fine not to exceed $5,000.00 or by confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a term not to exceed 12 months, or both; provided, however, that a person convicted of a misdemeanor of a high and aggravated nature which was committed by an inmate within the confines of a state correctional institution and sentenced to confinement as a result of such offense shall be sentenced to confinement under the jurisdiction of the Board of Corrections in a state correctional institution or such other institution as the Department of Corrections may direct for a term which shall not exceed 12 months. In all cases of a conviction of a misdemeanor of a high and aggravated nature, the sentencing court shall retain jurisdiction to amend, modify, alter, suspend, or probate sentences imposed under this Code section at any time; but in no instance shall a sentence imposed under this Code section be modified in such a manner as to increase the amount of fine or the term of confinement.
(b) Notwithstanding any laws to the contrary, a person sentenced for a misdemeanor of a high and aggravated nature may earn no more than four days per month earned time allowance.
When a defendant is found guilty of a felony punishable by imprisonment for a maximum term of ten years or less, the judge may, in his discretion, impose punishment as for a misdemeanor.
(a) As used in this Code section, the term “serious violent felony” means:
(1) Murder or felony murder, as defined in Code Section 16-5-1;
(2) Armed robbery, as defined in Code Section 16-8-41;
(3) Kidnapping, as defined in Code Section 16-5-40;
(4) Rape, as defined in Code Section 16-6-1;
(5) Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
(6) Aggravated sodomy, as defined in Code Section 16-6-2; or
(7) Aggravated sexual battery, as defined in Code Section 16-6-22.2.
(b)(1) Except as provided in subsection (e) of this Code section, any person convicted of the serious violent felony of kidnapping involving a victim who is 14 years of age or older or armed robbery shall be sentenced to a mandatory minimum term of imprisonment of ten years, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.
(2) Except as provided in subsection (e) of this Code section, the sentence of any person convicted of the serious violent felony of:
(A) Kidnapping involving a victim who is less than 14 years of age;
(B) Rape;
(C) Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
(D) Aggravated sodomy, as defined in Code Section 16-6-2; or
(E) Aggravated sexual battery, as defined in Code Section 16-6-22.2
shall, unless sentenced to life imprisonment, be a split sentence which shall include a mandatory minimum term of imprisonment of 25 years, followed by probation for life, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.
(3) No person convicted of a serious violent felony shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders. The State of Georgia shall have the right to appeal any sentence which is imposed by the superior court which does not conform to the provisions of this subsection in the same manner as is provided for other appeals by the state in accordance with Chapter 7 of Title 5, relating to appeals or certiorari by the state.
(c)(1) Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
(2) For a first conviction of a serious violent felony in which the accused has been sentenced to death but the sentence of death has been commuted to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
(3) For a first conviction of a serious violent felony in which the accused has been sentenced to imprisonment for life without parole, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles or for any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
(4) Except as otherwise provided in this subsection, any sentence imposed for the first conviction of any serious violent felony shall be served in its entirety as imposed by the sentencing court and shall not be reduced by any form of parole or early release administered by the State Board of Pardons and Paroles or by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court; provided, however, that during the final year of incarceration an offender so sentenced shall be eligible to be considered for participation in a department administered transitional center or work release program.
(d) For purposes of this Code section, a first conviction of any serious violent felony means that the person has never been convicted of a serious violent felony under the laws of this state or of an offense under the laws of any other state or of the United States, which offense if committed in this state would be a serious violent felony. Conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.
(e) In the court's discretion, the judge may depart from the mandatory minimum sentence specified in this Code section for a person who is convicted of a serious violent felony when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.
(f) Any sentence imposed pursuant to this Code section shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court or any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles; provided, however, that during the final year of incarceration, a defendant so sentenced shall be eligible to be considered for participation in a Department of Corrections administered transitional center or work release program.
(a) As used in this Code section, the term “sexual offense” means:
(1) Aggravated assault with the intent to rape, in violation of Code Section 16-5-21;
(2) False imprisonment, in violation of Code Section 16-5-41, if the victim is not the child of the defendant and the victim is less than 14 years of age;
(3) Sodomy, in violation of Code Section 16-6-2, unless subject to the provisions of subsection (d) of Code Section 16-6-2;
(4) Statutory rape, in violation of Code Section 16-6-3, if the person convicted of the crime is 21 years of age or older;
(5) Child molestation, in violation of subsection (a) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4;
(6) Enticing a child for indecent purposes, in violation of Code Section 16-6-5, unless subject to the provisions of subsection (c) of Code Section 16-6-5;
(7) Improper sexual contact by employee or agent and improper sexual contact by person in a position of trust, as provided in Code Section 16-6-5.1;
(8) Incest, in violation of Code Section 16-6-22;
(9) A second or subsequent conviction for sexual battery, in violation of Code Section 16-6-22.1; or
(10) Sexual exploitation of children, in violation of Code Section 16-12-100, unless subject to the provisions of paragraph (2) or (3) of subsection (f) of Code Section 16-12-100.
(b) Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to such sexual offense. No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the court. Any such sentence shall include, in addition to the mandatory term of imprisonment, an additional probated sentence of at least one year; provided, however, that when a court imposes consecutive sentences for sexual offenses, the requirement that the court impose a probated sentence of at least one year shall only apply to the final consecutive sentence imposed. No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42 or any other provision of Georgia law relating to the sentencing of first offenders.
(c)(1) In the court's discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:
(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;
(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;
(C) The court has not found evidence of a relevant similar transaction;
(D) The victim did not suffer any intentional physical harm during the commission of the offense;
(E) The offense did not involve the transportation of the victim; and
(F) The victim was not physically restrained during the commission of the offense.
(2) If the court deviates in sentencing pursuant to this subsection, the judge shall issue a written order setting forth the judge's reasons. Any such order shall be appealable by the defendant pursuant to Code Section 5-6-34, or by the State of Georgia pursuant to Code Section 5-7-1, unless the sentence imposed was pursuant to an agreement by the prosecuting attorney and the defendant.
(d) If the court imposes a probated sentence, the defendant shall submit to review by the Sexual Offender Risk Review Board for purposes of risk assessment classification within 60 days of being sentenced and shall otherwise comply with Article 2 of Chapter 1 of Title 42.
(a) As used in this Code section, the term “three-judge panel” means the three-judge panel that was created and existed pursuant to the former provisions of Code Section 17-10-6 as it existed on June 30, 2007, which reviewed certain sentences to determine if a sentence was excessively harsh and what relief, if any, should be given.
(b) The right of a defendant to have a sentence reviewed by a three-judge panel shall be terminated for sentences imposed by a trial or appellate court on or after July 1, 2007. No new application for review of a sentence shall be transmitted to the three-judge panel on or after July 1, 2007, except for cases in which a sentence was imposed prior to July 1, 2007.
(c) No new application for review of a sentence shall be accepted by the three-judge panel unless such application has been received by the three-judge panel on or before September 1, 2007. Any sentence that has an application for review with the three-judge panel pending on September 1, 2007, shall have such review completed by the three-judge panel by November 1, 2008.
(d) It shall be the duty of the president of The Council of Superior Court Judges of Georgia to cause all administrative measures which may be necessary to conclude the business of the three-judge panel to be completed no later than January 1, 2009. Such administrative, clerical, or secretarial personnel as may be assigned to provide support for the three-judge panel may continue to be employed for the purpose of providing support to the president of The Council of Superior Court Judges of Georgia until January 1, 2009.
(e) No later than January 1, 2009, all records and documents relating to the activities of the three-judge panels during the period July 1, 1974, through November 1, 2008, shall be transmitted to the Division of Archives and History for retention in accordance with Article 5 of Chapter 18 of Title 50, the “Georgia Records Act.” All equipment, supplies, and materials which the president of The Council of Superior Court Judges of Georgia determines are excess or surplus shall be distributed by the president to the judges of the superior courts for use in the performance of their official duties. Any fees or expenses due to any clerk, superior court judge, or other person as a result of the three-judge panel shall be paid out of such funds as are appropriated for the operation of the superior courts during fiscal year 2009.
(a) Except as otherwise provided in subsection (b) or (b.1) of this Code section, any person who, after having been convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, commits a felony punishable by confinement in a penal institution shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.
(b)(1) As used in this subsection, the term “serious violent felony” means a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1.
(2) Except as provided in subsection (e) of Code Section 17-10-6.1, any person who has been convicted of a serious violent felony in this state or who has been convicted under the laws of any other state or of the United States of a crime which if committed in this state would be a serious violent felony and who after such first conviction subsequently commits and is convicted of a serious violent felony for which such person is not sentenced to death shall be sentenced to imprisonment for life without parole. Any such sentence of life without parole shall not be suspended, stayed, probated, deferred, or withheld, and any such person sentenced pursuant to this paragraph shall not be eligible for any form of pardon, parole, or early release administered by the State Board of Pardons and Paroles or for any earned time, early release, work release, leave, or any other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the sentence of life imprisonment without possibility of parole, except as may be authorized by any existing or future provisions of the Constitution.
(b.1) Subsections (a) and (c) of this Code section shall not apply to a second or any subsequent conviction for any violation of subsection (a), paragraph (1) of subsection (i), or subsection (j) of Code Section 16-13-30.
(c) Except as otherwise provided in subsection (b) or (b.1) of this Code section and subsection (b) of Code Section 42-9-45, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.
(d) For the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.
(e) This Code section is supplemental to other provisions relating to recidivous offenders.
(a) In a felony case, when a statutory fine amount is not set by law, upon conviction, the court may impose a fine not to exceed $100,000.00.
(b) In any case when probation is revoked, the defendant shall not be entitled to any rebate or refund of any part of the fine paid.
In any case in which a defendant receives legal defense services pursuant to Chapter 12 of Title 17 where the defendant has not paid the application fee required by Code Section 15-21A-6 and the court has not waived such fee at the time of sentencing, the court shall impose such fee as a condition of probation.
(a) In the imposition of sentence for violation of the penal laws, it shall be the duty of the judge to specify that the term of service under the sentence shall be computed from the date of sentence if the defendant is confined in jail or otherwise incarcerated and has no appeal or motion for new trial pending.
(b) In cases which are appealed to the Georgia Court of Appeals or the Georgia Supreme Court for reversal of the conviction, the sentence shall be computed from the date the remittitur of the appellate court is made the judgment of the court in which the conviction is had, provided the defendant is not at liberty under bond but is incarcerated or in custody of the sheriff of the county where convicted. If the defendant was at liberty under bond during the pendency of the appeal, once the remittitur of the appellate court is made the judgment of the court in which the conviction is had, the prosecuting attorney shall have the burden of notifying the defendant of the commencement of the sentence within 90 days of such remittitur. When the prosecuting attorney fails to provide such notice, the sentence shall be computed from the date of such remittitur.
(c) If a defendant has been convicted and sentenced but, because of his or her failure or inability to post bond or bail for any reason, he or she has been incarcerated pending the prosecution of an appeal to any court, the time of the original imposition of his or her sentence until the time when the remittitur of the appellate court is made the judgment of the court in which the conviction is had shall be counted as time spent under sentence for all purposes.
(a) When a defendant who pleads nolo contendere or guilty or is convicted of an offense against the laws of this state other than:
(1) Treason;
(2) Murder;
(3) Rape;
(4) Aggravated sodomy;
(5) Armed robbery;
(5.1) Home invasion in any degree;
(6) Aircraft hijacking and hijacking a motor vehicle in the first degree;
(7) Aggravated child molestation;
(8) Manufacturing, distributing, delivering, dispensing, administering, selling, or possessing with intent to distribute any controlled substance classified under Code Section 16-13-25 as Schedule I or under Code Section 16-13-26 as Schedule II;
(9) Violating Code Section 16-13-31, relating to trafficking in cocaine or marijuana;
(10) Kidnapping, arson, or burglary in any degree if the person, at the time such person was charged, has previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary in any degree, or one or more of the offenses listed in paragraphs (1) through (9) of this subsection;
(11) Child molestation;
(12) Robbery;
(13) Aggravated assault; or
(14) Voluntary manslaughter
is sentenced to a term of confinement in a county jail or a correctional institution operated by or under the jurisdiction and supervision of the Department of Corrections, the sentencing judge may release the defendant pending the defendant's surrendering to a county jail or to a correctional institution designated by the Department of Corrections as authorized in this Code section. The sentencing court may release the defendant on bond or may release the defendant on the defendant's personal recognizance. This Code section shall not be construed to limit the court's authority in prescribing conditions of probation.
(b) Any defendant who has been released on bond and who has complied with all of the conditions of the bond and any other defendant who, in the opinion of the sentencing judge, is deemed worthy of the procedure to surrender voluntarily, may be eligible to participate in the program. However, the sentencing judge shall be the sole and final arbiter concerning eligibility and the defendant shall have no right to appeal such decision.
(c) When a defendant submits a request to the sentencing judge to be allowed to surrender voluntarily to a county jail or a correctional facility, the judge may consider the request and if, taking into the consideration the crime for which the defendant is being sentenced, the history of the defendant, and any other factors which may aid in the decision, the judge determines that the granting of the request will pose no threat to society, the defendant shall be remanded to the supervision of a community supervision officer, county or Department of Juvenile Justice juvenile probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42 by the judge and ordered to surrender voluntarily to a county jail designated by the court or to a correctional institution as thereafter designated by the Department of Corrections. The surrender date shall be a date thereafter specified as provided in subsection (d) of this Code section. The sentence of any defendant who is released pursuant to this Code section shall not begin to run until such person surrenders to the facility designated by the court or by the department, provided that such person shall receive credit toward his or her sentence for time spent in confinement awaiting trial as provided in Code Section 17-10-11.
(d) In the event the defendant is ordered to surrender voluntarily to a county jail, the court shall designate the date on which the defendant shall surrender, which shall not be more than 120 days after the date of conviction. When the sentencing judge issues an order requiring a defendant to surrender voluntarily to a correctional institution, the Department of Corrections shall authorize the commitment and designate the correctional institution to which the defendant shall report and the date on which the defendant is to report, which date shall not be more than 120 days after the date of conviction. Upon such designation, the department shall notify the community supervision officer, county or Department of Juvenile Justice juvenile probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42, as applicable, who shall notify the defendant accordingly. Subsistence and transportation expenses en route to the correctional institution shall be borne by the defendant.
(e) The provisions of this Code section shall not apply to any defendant convicted of a capital felony.
(f) If the defendant fails to surrender voluntarily as directed and required, the defendant may be charged with the offense of bail jumping pursuant to subsection (a) of Code Section 16-10-51 or the offense of escape pursuant to paragraph (3) of subsection (a) of Code Section 16-10-52 and, if convicted of such crimes, shall be punished as provided by law; or may be cited for contempt of court by the sentencing judge and, if convicted of contempt, the defendant shall be punished as provided in Code Section 15-6-8.
(g) The Department of Corrections is authorized and directed to promulgate such rules and regulations as may be necessary to effectuate the purposes of this Code section.
(a) Where at one term of court a person is convicted on more than one indictment or accusation, or on more than one count thereof, and sentenced to imprisonment, the sentences shall be served concurrently unless otherwise expressly provided therein.
(b) Where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, the sentences shall be served concurrently, one with the other, unless otherwise expressly provided therein.
(c) This Code section shall apply alike to felony and misdemeanor offenses.
(d) This Code section shall govern and shall be followed by the Department of Corrections in the computation of time that sentences shall run.
(a) Except as provided in subsection (b) of this Code section, upon conviction for an offense, a person shall be given full credit for each day spent in confinement in any penal institution or facility and in any institution or facility for treatment or examination for a disability, as such term is defined in Code Section 37-1-1, infirmity, or other physical condition, including:
(1) Pretrial confinement, for any reason, since the date of arrest for the offense which is the subject of the sentence; and
(2) Posttrial confinement awaiting the remittitur from an appellate court or transfer to the Department of Corrections or other court ordered institution or facility.
(b) The court may exclude credit for time served in pretrial confinement when its sentence:
(1) Requires the person to complete a program at a probation detention center as set forth in Code Section 42-8-35.4;
(2) Allows the person to participate in a work release program as set forth in Code Section 42-1-4; or
(3) Is for a misdemeanor offense for time spent in confinement in a jurisdiction other than the one in which the arrest for such offense occurred.
(c) The credit or credits set forth in subsection (a) of this Code section shall be applied toward the convicted person's sentence and shall be considered by the State Board of Pardons and Paroles in determining the eligibility of such person for parole.
(d) This Code section shall apply to sentences for all crimes, whether classified as violations, misdemeanors, or felonies, and to all courts having criminal jurisdiction located within the boundaries of this state.
(a) The custodian of the defendant shall be required to make an affidavit specifying the number of days which the defendant has spent in confinement in his custody and furnish the affidavit to the clerk of the court within five days after sentence is imposed if the defendant is convicted. The affidavit of the custodian of the defendant shall be made a part of the official record of the trial.
(b) The clerk of the court shall transmit a copy of the custodian's affidavit to the Department of Corrections when the defendant has been sentenced to the custody of the department. The Department of Corrections shall give the defendant credit for the number of days spent in confinement prior to conviction and sentence, as reflected in the custodian's affidavit, before forwarding the record to the State Board of Pardons and Paroles.
(c) Where the defendant has been sentenced to the custody of an official other than the commissioner of corrections, the clerk of the court shall transmit the custodian's affidavit to the proper authorities who shall give the defendant credit for the number of days spent in custody prior to conviction and sentence.
(d) For service under this Code section, the clerk shall receive the fee prescribed in Code Section 15-6-77 from the funds of the county, except where the clerk is on a salary.
The punishments prescribed by this Code shall be assessed only after a legal adjudication of guilt in a court having jurisdiction.
(a) Notwithstanding any other provisions of this article and except as otherwise provided in subsection (b) of this Code section, in any case where a person under the age of 17 years is convicted of a felony and sentenced as an adult to life imprisonment or to a certain term of imprisonment, such person shall be committed to the Department of Juvenile Justice to serve such sentence in a detention center of such department until such person is 17 years of age at which time such person shall be transferred to the Department of Corrections to serve the remainder of the sentence. This Code section shall apply to any person convicted on or after July 1, 1987, and to any person convicted prior to such date who has not been committed to an institution operated by the Department of Corrections.
(b) If a child is transferred to superior court pursuant to Code Section 15-11-561 and convicted of aggravated assault as defined in Chapter 5 of Title 16, the court may sentence such child to the Department of Corrections. Such child shall be housed in a designated youth confinement unit until such person is 17 years of age, at which time such person may be housed in any other unit designated by the Department of Corrections.
(a) Any term used in this Code section and defined in Code Section 31-22-9.1 shall have the meaning provided for such term in Code Section 31-22-9.1.
(b) A victim or the parent or legal guardian of a minor or incompetent victim of a sexual offense as defined in Code Section 31-22-9.1 or other crime which involves significant exposure as defined by subsection (f) of this Code section may request that the agency responsible for prosecuting the alleged offense request that the person arrested for such offense submit to a test for the human immunodeficiency virus and consent to the release of the test results to the victim. If the person so arrested declines to submit to such a test, the judge of the superior court in which the criminal charge is pending, upon a showing of probable cause that the person arrested for the offense committed the alleged crime and that significant exposure occurred, may order the test to be performed in compliance with the rules adopted by the Department of Public Health. The cost of the test shall be borne by the victim or by the arrested person, in the discretion of the court.
(c) Upon a verdict or plea of guilty or a plea of nolo contendere to any AIDS transmitting crime, the court in which that verdict is returned or plea entered shall require the defendant in such case to submit to an HIV test within 45 days following the date of such verdict or plea.
(d) Any person required under this Code section to submit to the HIV test who fails or refuses to submit to the test shall be subject to such measures deemed necessary by the court in which the order was entered, verdict was returned, or plea was entered to require involuntary submission to the HIV test, and submission thereto may also be made a condition of suspending or probating any part of that person's sentence for the AIDS transmitting crime.
(e) If a person is required by this Code section to submit to an HIV test and is thereby determined to be infected with HIV, that determination and the name of the person shall be reported to:
(1) The Department of Public Health, which shall disclose the name of the person as necessary to provide counseling to each victim of that person's AIDS transmitting crime if that crime is other than one specified in subparagraph (a)(3)(J) of Code Section 31-22-9.1 or to any parent or guardian of any such victim who is a minor or incompetent person;
(2) The court which ordered the HIV test, which court shall make that report a part of that person's criminal record. That report shall be sealed by the court; and
(3) The officer in charge of any penal institution or other facility in which the person has been confined by order or sentence of the court for purposes of enabling that officer to confine the person separately from those not infected with HIV.
(f) For the purpose of subsection (b) of this Code section, “significant exposure” means contact of the victim's ruptured or broken skin or mucous membranes with the blood or body fluids of the person arrested for such offense, other than tears, saliva, or perspiration, of a magnitude that the Centers for Disease Control and Prevention have epidemiologically demonstrated can result in transmission of the human immunodeficiency virus.
(g) The state may not use the fact that a medical procedure or test was performed on a person under this Code section or use the results of the procedure or test in any criminal proceeding arising out of the alleged offense.
(a) Notwithstanding any other provision of law, a person who is convicted of an offense committed after May 1, 1993, for which the death penalty may be imposed under the laws of this state may be sentenced to death, imprisonment for life without parole, or life imprisonment as provided in Article 2 of this chapter.
(b) Notwithstanding any other provision of law, any person who is convicted of an offense for which the death penalty may be imposed and who is sentenced to imprisonment for life without parole shall not be eligible for any form of parole during such person's natural life unless the State Board of Pardons and Paroles or a court of this state shall, after notice and public hearing, determine that such person was innocent of the offense for which the sentence of imprisonment for life without parole was imposed. Such person shall not be eligible for any work release program, leave, or any other program administered by the Department of Corrections the effect of which would be to reduce the term of actual imprisonment to which such person was sentenced.
A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state.
(a) As used in this Code section, the term “designated misdemeanor” means:
(1) Simple assault as defined in Code Section 16-5-20;
(2) Simple battery as defined in Code Section 16-5-23;
(3) Battery as defined in Code Section 16-5-23.1;
(4) Criminal trespass as defined in Code Section 16-7-21; and
(5) Misdemeanor theft by taking as defined in Code Section 16-8-2.
(b) Subject to the notice requirement provided in Code Section 17-10-18 and in enhancement of the penalty imposed, if the trier of fact determines beyond a reasonable doubt that the defendant intentionally selected any victim or group of victims or any property as the object of the offense because of such victim's or group of victims' actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability, the judge imposing sentence shall:
(1) If the offense for which the defendant was convicted is a designated misdemeanor, impose a sentence of imprisonment for a period of not less than six nor more than 12 months, and a fine not to exceed $5,000.00; or
(2) If the offense for which the defendant was convicted is a felony, impose a sentence of imprisonment for a period of not less than two years, and a fine not to exceed $5,000.00.
(c) The judge shall state when he or she imposes the sentence the amount of the increase of the sentence based on the application of subsection (b) of this Code section.
At any time after the filing of an indictment or accusation but not later than the arraignment, the state shall notify the defendant of its intention to seek the enhanced penalty or penalties authorized by Code Section 17-10-17. The notice shall be in writing and shall allege the specific factor or factors authorizing an enhanced sentence in the case pursuant to Code Section 17-10-17.
(a) In a case where notice has been given pursuant to Code Section 17-10-18, the trier of fact shall initially determine the defendant's guilt on the charge or charges. If the trier of fact finds the defendant guilty of such charge or charges, the trial shall immediately be recommenced to receive evidence as is relevant to determine whether the defendant intentionally selected the victim or the property of the victim as the object of the offense as set forth in the notice given pursuant to Code Section 17-10-18.
(b) If the trier of fact determines beyond a reasonable doubt that the defendant so acted, the judge shall enhance the sentence imposed in accordance with the provisions of Code Section 17-10-17.
(a) In any case in which a fine or restitution is imposed as part of the sentence, such fine and restitution shall constitute a judgment against the defendant. Upon the request of the prosecuting attorney, it shall be the duty of the clerk of the sentencing court to issue a writ of fieri facias thereon and enter it on the general execution docket of the superior court of the county in which such sentence was imposed. Such fieri facias may also be entered on the general execution docket in any county in which the defendant owns real property.
(b) If, in imposing sentence, the court sets a time certain for such fine or restitution to be paid in full, no execution shall issue upon the writ of fieri facias against the property of the defendant until such time as the time set by the court for payment of the fine or restitution shall have expired.
(c) If the fine or restitution is not paid in full, such judgment may be enforced by instituting any procedure for execution upon the writ of fieri facias through levy, foreclosure, garnishment, and all other actions provided for the enforcement of judgments in the State of Georgia and in other states and foreign nations where such judgment is afforded full faith and credit under the Uniform Foreign Money Judgments Act or domestication thereof.
(d) If the fine is not paid in full by the expiration of the time set by the court for payment of the fine, the governing authority of the county or municipality entitled to such fine may institute procedures to enforce such judgment as provided by subsection (c) of this Code section.
(e) If the restitution is not paid in full by the expiration of the time set by the court for payment of the restitution, the prosecuting attorney or the victim entitled to receive such restitution may institute procedures to enforce such judgment as provided by subsection (c) of this Code section.
(f) Notwithstanding the provisions of Code Section 9-12-60, a judgment entered on the general execution docket pursuant to this Code section shall not become dormant during any period when the defendant is incarcerated and for seven years thereafter. Such judgment shall be subject to revival in the same manner as provided for dormant judgments under Code Section 9-12-60.
(g) No fees, costs, or other charges authorized by law in civil cases shall be charged by a clerk of superior court for entering a judgment arising out of a criminal case on the general execution docket or for any action brought by the state to enforce such judgment.
(h) The provisions of this Code section shall be supplemental to any other provision of law applicable to the collection of fines or restitution in criminal cases.
(a)(1) A defendant convicted of an offense and sentenced as a direct result of the defendant being the victim of an offense of trafficking under Code Section 16-5-46 may petition the court imposing the sentence to vacate such conviction. Such court shall maintain the jurisdiction, power, and authority to vacate such conviction and sentence.
(2) The defendant shall serve the petition provided for under paragraph (1) of this subsection upon the prosecuting attorney, and such petition:
(A) Shall be submitted on a form promulgated by the Attorney General;
(B) Shall be submitted at any time following conviction and sentencing for a misdemeanor or felony offense;
(C) Shall be submitted with a copy of his or her criminal history background check report conducted by the Georgia Crime Information Center that has been completed no more than three business days prior to the filing of the petition; provided, however, that the defendant shall not be charged a fee by the Georgia Crime Information Center for a report produced for purposes of this Code section; and
(D) May include documentation of a defendant's status as a victim of an offense of trafficking under Code Section 16-5-46 at the time of the offense; provided, however, that official documentation shall not be required to obtain relief under this Code section. Such documentation shall create a rebuttable presumption that the defendant was a victim of trafficking under Code Section 16-5-46. As used in this subparagraph, the term “official documentation” includes, but is not limited to, the following:
(i) A copy of an official record, certification, or eligibility letter from a federal, state, tribal, or local proceeding showing that the defendant was a victim of trafficking under Code Section 16-5-46;
(ii) An affidavit, a letter, or sworn testimony from a member of the clergy, medical professional, member of a victim services organization, or certified, licensed, or registered professional from whom the defendant has sought assistance, counseling, or legal counsel related to his or her victimization; or
(iii) Any other evidence that the court determines is of sufficient credibility or probative value.
(3) No defendant with an outstanding warrant issued by a jurisdiction in this state or any other state or by the United States shall file a petition provided for under paragraph (1) of this subsection.
(4) If the prosecuting attorney, to the court, consents in writing to the vacatur of such conviction or fails to respond to such petition within 30 days of service, the court imposing the conviction and sentence shall, without notice or hearing, issue an order vacating the conviction and sentence and shall also issue an order restricting access to criminal history record information for such offense.
(5)(A) If the prosecuting attorney, to the court, objects in writing to the petition, the court shall hold a hearing within 90 days of the filing of the petition. The court shall hear evidence and determine, by a preponderance of the evidence, whether the defendant committed such offense as a direct result of being the victim of an offense of trafficking under Code Section 16-5-46. If the court finds, by a preponderance of the evidence, that the defendant committed such offense as a direct result of being the victim of an offense of trafficking under Code Section 16-5-46, the court may issue an order vacating the conviction and sentence.
(B) If such order to vacate is issued, the court shall also issue an order restricting access to criminal history record information for such offense and no fee shall be charged by the Georgia Crime Information Center or any other entity for restricting access to criminal history record information under this paragraph.
(C) As used in this paragraph, the term “restrict” shall have the same meaning as set forth in Code Section 35-3-37.
(b) When a petition provided for under subsection (a) of this Code section is filed, it shall be filed under seal.
(c)(1) For any sentence vacated pursuant to this Code section, the court vacating such sentence shall include in the order to vacate an order for the return of any fines and fees paid by the defendant under such sentence in the amount paid by the defendant.
(2) The Georgia Crime Victims Emergency Fund, as provided for in Chapter 15 of Title 17, shall be responsible for the return to the defendant of fines and fees paid by the defendant.
(d) For purposes of considering a petition provided for under subsection (a) of this Code section, testimony from the defendant, petitioner, expert witness, or any other party may be taken by the court by remote electronic means.
(a) The death penalty may be imposed for the offenses of aircraft hijacking or treason in any case.
(b) In all cases of other offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony;
(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary in any degree or arson in the first degree;
(3) The offender, by his act of murder, armed robbery, or kidnapping, knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;
(4) The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value;
(5) The murder of a judicial officer, former judicial officer, district attorney or solicitor-general, or former district attorney, solicitor, or solicitor-general was committed during or because of the exercise of his or her official duties;
(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person;
(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;
(8) The offense of murder was committed against any peace officer, corrections employee, or firefighter while engaged in the performance of his official duties;
(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement;
(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself or another;
(11) The offense of murder, rape, or kidnapping was committed by a person previously convicted of rape, aggravated sodomy, aggravated child molestation, or aggravated sexual battery; or
(12) The murder was committed during an act of domestic terrorism.
(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a recommendation of death, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in subsection (b) of this Code section is so found, the death penalty shall not be imposed.
(a) Where, upon a trial by jury, a person is convicted of an offense which may be punishable by death, a sentence of death shall not be imposed unless the jury verdict includes a finding of at least one statutory aggravating circumstance and a recommendation that such sentence be imposed. Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the accused to death. Where a statutory aggravating circumstance is not found or where a statutory circumstance is found but a recommendation of death is not made, the jury shall decide whether to recommend a sentence of life imprisonment without parole or life imprisonment with the possibility of parole. Unless the jury trying the case makes a finding of at least one statutory aggravating circumstance and recommends the death sentence in its verdict, the court shall not sentence the accused to death, provided that no such finding of statutory aggravating circumstance shall be necessary in offenses of treason or aircraft hijacking. This Code section shall not affect a sentence when the case is tried without a jury or when the judge accepts a plea of guilty.
(b) During the sentencing phase before a jury, counsel for the state and the accused may present argument and the trial judge may instruct the jury:
(1) That “life without parole” means that the accused shall be incarcerated for the remainder of his or her natural life and shall not be eligible for parole unless such person is subsequently adjudicated to be not guilty of the offense for which he or she was sentenced; and
(2) That “life imprisonment” means that the accused will be incarcerated for the remainder of his or her natural life but will be eligible for parole during the term of such sentence.
(c) If the jury is unable to reach a unanimous verdict as to sentence, the judge shall dismiss the jury and shall impose a sentence of either life imprisonment or imprisonment for life without parole.
Any person who has been indicted for an offense punishable by death may enter a plea of guilty at any time after his indictment, and the judge of the superior court having jurisdiction may, in his discretion, sentence the person to life imprisonment or to any other punishment authorized by law for the offense named in the indictment; provided, however, that the judge must find one of the statutory aggravating circumstances provided in Code Section 17-10-30 before imposing the death penalty, except in cases of treason or aircraft hijacking.
Upon a judgment of death made by a judge, it shall be the duty of the judge to sentence the defendant to death and to indicate the sentence in writing, which writing shall be filed with the papers in the case against the defendant. A certified copy of the sentence shall be sent by the clerk of the court in which the sentence is pronounced to the defendant's attorney of record, to the Attorney General, and to the superintendent of the state correctional institution where the execution is to take place, not less than ten days prior to the time fixed in the sentence of the court for the execution of the defendant. In all cases it shall be the duty of the sheriff of the county in which the defendant is sentenced, together with one deputy or more if in the sheriff's judgment it is necessary, and provided that in all cases the number of guards shall be approved by the trial judge or, if the trial judge is not available, by the judge of the probate court of the county in which the defendant is sentenced, to convey the defendant to the appropriate state correctional institution, not more than 20 days nor less than two days prior to the time fixed in the judgment for the execution of the defendant, unless otherwise directed by the Governor or unless a stay of execution has been caused by an appeal, granting of a new trial, or other order of a court of competent jurisdiction. The expense for transporting the defendant to the state correctional institution for the purpose of execution of the death sentence shall be paid by the county governing authority of the county in which the defendant was convicted, out of any funds on hand in the treasury of the county.
When a person is sentenced to the punishment of death, the court shall specify the time period for the execution in the sentence. The time period for the execution fixed by the court shall be seven days in duration and shall commence at noon on a specified date and shall end at noon on a specified date. The time period shall commence not less than 20 days nor more than 60 days from the date of sentencing. However, if the person is a female who is pregnant at the time of sentencing, the court shall appoint a time period for execution after the female is no longer pregnant.
(a) Whenever the death penalty is imposed, upon the judgment becoming final in the trial court, the sentence shall be reviewed on the record by the Supreme Court of Georgia. The clerk of the trial court, within ten days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court.
(b) The Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.
(c) With regard to the sentence, the court shall determine:
(1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
(2) Whether, in cases other than treason or aircraft hijacking, the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection (b) of Code Section 17-10-30; and
(3) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
(d) Both the defendant and the state shall have the right to submit briefs within the time provided by the court and to present oral argument to the court.
(e) The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
(1) Affirm the sentence of death; or
(2) Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court in its decision and the extracts prepared as provided for in subsection (a) of Code Section 17-10-37 shall be provided to the resentencing judge for his consideration.
(f) The sentence review shall be in addition to direct appeal, if taken, and the review and appeal shall be consolidated for consideration. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.
(a) In cases in which the death penalty is sought, there may be a review of all pretrial proceedings by the Supreme Court upon a determination by the trial judge under Code Section 17-10-35.2 that such review is appropriate. The review shall be initiated by the trial judge's filing in the office of the clerk of superior court and delivering to the parties a report certifying that all pretrial proceedings in the case have been completed and that the case stands ready for trial. Within ten days after the filing of the report or the receipt of transcripts of the proceedings, whichever is later, the prosecutor and the defendant may each file with the clerk of superior court and serve upon the opposing party a report identifying all areas of the pretrial proceedings with respect to which reversible error may arguably have occurred. Either party may consolidate with such report an application for appeal with respect to any order, decision, or judgment entered in the case. Any such application for appeal shall be in the form otherwise appropriate under subsection (b) of Code Section 5-6-34, but:
(1) Any such application for appeal shall be filed with the clerk of superior court rather than the clerk of the Supreme Court;
(2) The opposing party shall not be required or permitted to respond to such an application for appeal; and
(3) No certificate of immediate review shall be required for the filing of such application for appeal.
(b) The reports of the trial judge, prosecutor, and defendant under subsection (a) of this Code section shall be in the form of standard questionnaires prepared and supplied by the Supreme Court. Such questionnaires shall be designed to determine whether there is arguably any existence of reversible error with respect to any of the following matters:
(1) Any proceedings with respect to change of venue;
(2) Any proceedings with respect to recusal of the trial judge;
(3) Any challenge to the jury array;
(4) Any motion to suppress evidence;
(5) Any motion for psychiatric or other medical evaluation; and
(6) Any other matter deemed appropriate by the Supreme Court.
(c) Upon the filing of the reports of the parties, the clerk of superior court shall transmit to the Supreme Court the report of the trial judge, the transcripts of proceedings, and the reports of the parties together with any application for appeal consolidated therewith. A copy of all of the foregoing shall also be delivered by the clerk of superior court to the Attorney General.
(d) The Supreme Court shall issue an order granting review of the pretrial proceedings, or portions thereof, or denying review within 45 days of the date on which the case was received. The order of the Supreme Court shall identify the matters which shall be subject to review, and such matters may include, but need not be limited to, any matters called to the court's attention in any of the reports or in any application for appeal. No notice of appeal shall be required to be filed if review of the pretrial proceedings is granted. An order granting review of pretrial proceedings shall specify the period of time within which each party shall file briefs and reply briefs with respect to the matters identified in the Supreme Court's order granting review. The Supreme Court may order oral argument or may render a decision on the record and the briefs.
(e) If requested by the district attorney, the Attorney General shall assist in the review and appeal provided for in this Code section.
(f) Review of any matter under this Code section shall, as to any question passed on in such review, be res judicata as to such question and shall be deemed to be the law of the case.
(g) The procedure under this Code section shall not apply to any ruling or order made, invoked, or sought subsequent to the filing of the report of the trial judge.
(h) The failure of either party to assert the rights given in this Code section, or the failure of the Supreme Court to grant review, shall not waive the right to posttrial review of any question review of which could be sought under this Code section and shall not constitute an adjudication as to such question.
Prior to the filing of a report by the trial judge under Code Section 17-10-35.1 certifying that pretrial proceedings are complete, the court shall conduct a hearing to determine if an interim appellate review of pretrial rulings is appropriate. The court shall hear from the state and the defense as to whether the delay to be caused by interim appellate review outweighs the need for such review. The court shall order such review and initiate the procedure contained in Code Section 17-10-35.1 unless the court concludes and enters an order to the effect that interim appellate review would not serve the ends of justice in the case. An order obviating interim appellate review shall not be appealable.
(a) The Supreme Court of Georgia shall establish, by rules, a new unified review procedure to provide for the presentation to the sentencing court and to the Supreme Court of all possible challenges to the trial, conviction, sentence, and detention of defendants upon whom the sentence of death has been or may be imposed, which challenges before July 1, 1988, have been presented for review by the former unified review procedure under this subsection. Such new unified review procedure shall govern both pretrial and posttrial appellate review of death penalty cases.
(b) The Supreme Court shall establish, by rules, a series of check lists to be utilized by the trial court, the prosecuting attorney, and defense counsel prior to, during, and after the trial of cases in which the death penalty is sought to make certain that all possible matters which could be raised in defense have been considered by the defendant and defense counsel and either asserted in a timely and correct manner or waived in accordance with applicable legal requirements, so that, for purposes of any pretrial review and the trial and posttrial review, the record and transcript of proceedings will be complete for a review by the sentencing court and the Supreme Court of all possible challenges to the trial, conviction, sentence, and detention of the defendant.
(c) Nothing in this Code section or in the rules of the Supreme Court shall limit or restrict the grounds of review or suspend the rights or remedies available through the procedures governing the writ of habeas corpus.
(d) The procedures governing the writ of habeas corpus may be employed to assert rights or seek remedies if the procedures established in the rules of the Supreme Court as applied to the petitioner are inadequate or ineffective in any constitutional sense.
(a) There shall be an assistant to the Supreme Court who shall be an attorney appointed by the Chief Justice and who shall serve at the pleasure of the court. The assistant shall assist the Supreme Court in the review of all death sentences.
(b) The court shall be authorized to employ an appropriate staff and such methods to compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence reviewed in accordance with Code Section 17-10-35.
(a) All persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection. Lethal injection is the continuous intravenous injection of a substance or substances sufficient to cause death into the body of the person sentenced to death until such person is dead.
(b) In all cases in which the defendant is sentenced to death, it shall be the duty of the trial judge in passing sentence to direct that the defendant be delivered to the Department of Corrections for execution of the death sentence at a state correctional institution designated by the department.
(c) Notwithstanding any other provision of law, prescription, preparation, compounding, dispensing, or administration of a lethal injection authorized by a sentence of death by a court of competent jurisdiction shall not constitute the practice of medicine or any other profession relating to health care which is subject by law to regulation, licensure, or certification.
(d) No state agency, department, or official may, through regulation or otherwise, require or compel a physician to participate in the execution of a death sentence. “To participate in the execution of a death sentence” means any of the following actions: selecting injection sites; starting an intravenous line or lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; or consulting with or supervising lethal injection personnel.
After a sentence of death has been imposed, if a female defendant so sentenced is believed to be pregnant, the sheriff of the county in which the defendant is imprisoned, with the concurrence and assistance of the judge of the probate court, shall select one or more physicians who shall conduct an examination. If the female is found to be pregnant, the sheriff shall suspend the execution of the sentence and make a report of the examination and suspension of execution to the presiding judge of the circuit, who shall cause the report and suspension to be entered on the minutes of the superior court of the county where the sentence was imposed. When the defendant is no longer pregnant, the judge shall issue a new order as provided in Code Section 17-10-40 directing the sheriff to execute the sentence at such date and place as the judge may appoint and direct in the order, which the sheriff shall be bound to do accordingly. The judge shall cause the new order and other proceedings in the case to be entered on the minutes of the court in which the sentence was imposed.
(a) Where the time period for the execution of any convicted person in a capital case has passed by reason of a supersedeas incident to appellate review, a stay of execution by the State Board of Pardons and Paroles, or for any other reason, a judge of the superior court of the county where the case was tried shall have the power and authority to pass an order fixing a new time period for the execution of the original sentence without requiring the convicted person to be brought before him by a writ of habeas corpus. The order shall be recorded on the minutes of the court and a certified copy of the order shall be sent immediately to the convicted person's attorney of record, to the Attorney General, and to the superintendent of the state correctional institution at the place of execution.
(b) The new time period for the execution shall be seven days in duration and shall commence at noon on a specified date and shall end at noon on a specified date. The new time period for the execution fixed by the judge shall commence not less than ten nor more than 20 days from the date of the order.
(c) The Department of Corrections shall set the day and time for execution within the time period designated by the judge of the superior court. If the execution is not carried out on the day and at the time originally set by the Department of Corrections, the Department of Corrections is authorized to set new dates and times for execution within the period designated by the judge of the superior court.
There shall be present at the execution of a convicted person the superintendent of the state correctional institution or a deputy superintendent thereof, at least three executioners, two physicians to determine when death supervenes, and other correctional officers, assistants, technicians, and witnesses as determined by the commissioner of corrections. In addition, the convicted person may request the presence of his or her counsel, a member of the clergy, and a reasonable number of relatives and friends, provided that the total number of witnesses appearing at the request of the convicted person shall be determined by the commissioner of corrections.
The executioner and attending physicians shall certify the fact of the execution to the clerk of the superior court of the county in which the sentence was imposed, which certificate shall be filed by the clerk with the papers in the case.
Participation in any execution of any convicted person carried out under this article shall not be the subject of any licensure challenge, suspension, or revocation for any physician or medical professional licensed in the State of Georgia.
The body of an executed person shall be delivered to the relatives of the person if they so desire; and, in case no claim is made by relatives for the body, it shall be disposed of in the same manner as bodies of inmates dying in a state correctional institution. If the nearest relatives of the person executed desire that the body be transported to the former home of the executed person, if in this state, the expenses of transportation shall be paid by the county governing authority of the county where the person was convicted, from any funds on hand in the treasury.
The Department of Corrections shall provide a place for execution of the death sentence and all necessary apparatus, machinery, and appliances for inflicting the penalty of death.
As used in this article, the term “mentally incompetent to be executed” means that because of a mental condition the person is presently unable to know why he or she is being punished and understand the nature of the punishment.
A person under sentence of death shall not be executed when it is determined under the provisions of this article that the person is mentally incompetent to be executed as defined in Code Section 17-10-60.
Notwithstanding any other provision of this Code, this article provides the exclusive procedure for challenging mental competency to be executed when such challenge is made subsequent to the time of conviction and sentence.
(a) An application brought under this article must be filed in the superior court of the county in which the applicant is being detained. The named respondent shall be the person having actual custody of the applicant.
(b) An application brought under this article shall identify the proceeding in which the applicant was convicted, give the date of the rendition and the final judgment complained of, set forth the fact that a time period for execution has been set, give the date of the signing of the order and the dates of the designated time period for execution, and shall clearly set forth alleged facts in support of the assertion that the applicant is presently mentally incompetent to be executed. The application shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached. The application shall identify any previous proceedings that the applicant may have taken challenging his mental competency to be executed or challenging his mental condition in relation to the conviction and sentence in question. Arguments and citations of authority shall be omitted from the application. The application must be verified with the oath of the applicant or of some other person in his behalf.
Service of an application brought under this article shall be made upon the person having custody of the applicant. If the applicant is being detained under the custody of the Department of Corrections, an additional copy of the application shall be served upon the Attorney General. If the applicant is being detained under the custody of some authority other than the Department of Corrections, an additional copy of the petition shall be served upon the district attorney of the county in which the application is filed.
As soon as possible after the filing and docketing of the application under this article, the respondent shall answer the application. The court may schedule a case for a hearing prior to the filing of responsive pleadings but, in any event, shall schedule the case for a hearing as soon as possible so that the proceedings may move expeditiously.
(a) By filing an application under this article, the applicant specifically consents to submit to a state examination for the purposes of assessing mental competency to be executed.
(b) Simultaneously with the filing of the application, the applicant, if he or she wishes the court to consider any request for appointment of an expert, shall file such a request and shall state specific facts in support of that request so that the court may determine if the applicant's mental competency to be executed is in fact a significant issue. The applicant shall further submit with the motion a specific statement as to the particular expert requested, the nature of the examination to be conducted, the time period within which an examination can be conducted, and an estimate of the expenses to be incurred.
(c) If the applicant has filed a request for an examination as provided in subsection (b) of this Code section and the applicant makes a sufficient showing that his or her mental competency to be executed is a significant issue, the court shall appoint an expert to make an examination of the applicant, with such examination to be conducted as soon as possible. Payment for such expert shall be made by the Department of Corrections unless otherwise designated by the General Assembly.
An application under this article shall not be filed until completion of direct appeal and until an order has been signed by a judge of the trial court setting a time period for the execution.
(a) The court may receive proof by depositions, oral testimony, sworn affidavits, or other evidence.
(b) The taking of depositions shall be governed by Code Sections 9-11-26 through 9-11-32 and 9-11-37.
(c) If a sworn affidavit is to be introduced into evidence by either party, the party intending to introduce such an affidavit shall cause it to be served upon the opposing party at least five days in advance of the date set for a hearing in the case or, in the event a hearing is set less than five days from the date of the filing of the application, as soon as possible so that opposing counsel has the opportunity to review the affidavit prior to the hearing. The affidavit so served shall be accompanied by notice of the party's intention to introduce it into evidence. The superior court judge considering the application may resolve disputed issues of fact upon the basis of sworn affidavits standing by themselves.
(d) After reviewing the pleadings and evidence offered at the hearing, the judge of the superior court hearing the case shall make written findings of fact and conclusions of law upon which the judgment is based. The findings of fact and conclusions of law shall be recorded as part of the record in the case.
(e) If the court finds in favor of the applicant by finding that the applicant has proven his or her mental incompetence to be executed by a preponderance of the evidence, the court shall enter an appropriate order with respect to any scheduled execution time period and shall enter such supplementary orders as necessary and proper. If the court denies the application, the court shall direct that immediate telephonic notification be given to the parties and any stay presently entered under this article shall be dissolved instanter.
If an applicant is determined to have previously filed an application under this article and has previously been determined to be mentally competent to be executed, such prior adjudication shall act as a presumption of mental competency and the applicant shall not be entitled to a new hearing on the question of mental competency to be executed absent the applicant's making a prima-facie showing of a substantial change in circumstances sufficient to raise a significant question as to the applicant's mental competency to be executed at the time of filing of any subsequent applications.
(a) Appeals in cases brought under this article shall be governed by Chapter 6 of Title 5 except that as to final orders of the court which are adverse to the applicant, no appeal shall be ordered unless the Supreme Court of this state issues a certificate of probable cause for the appeal.
(b) If an unsuccessful applicant desires to appeal, he or she must file a written application for a certificate of probable cause to appeal with the clerk of the Supreme Court within three days of the entry of the order denying relief. The applicant shall also file within the same period a notice of appeal with the clerk of the concerned superior court. The Supreme Court shall either grant or deny the application within a reasonable time after filing. In order for the Supreme Court to consider fully the request for a certificate, the clerk of the concerned superior court shall forward, as in any other case, the record and transcript, if designated, to the clerk of the Supreme Court when a notice of appeal is filed. The clerk of the concerned superior court need not prepare and retain and the court reporter need not file a copy of the original record and a copy of the original transcript of proceedings. The clerk of the Supreme Court shall return the original record and transcript to the clerk of the concerned superior court upon completion of the appeal if the certificate is granted. If the Supreme Court denies the application for a certificate of probable cause, the clerk of the Supreme Court shall return the original record and transcript and shall notify the clerk of the concerned superior court and the parties to the proceedings below of the determination that probable cause does not exist for appeal.
(c) If the trial court finds in favor of the applicant, no certificate of probable cause need be obtained by the respondent as a condition precedent to appeal. A notice of appeal filed by the respondent shall act as a supersedeas and shall stay the judgment of the superior court until there is a final adjudication by the Supreme Court.
If a convicted person under sentence of death who is found to be mentally incompetent to be executed under this article regains his or her mental competency, the fact shall be certified at once by the appropriate mental health official to the court initially making the finding of mental incompetency. Upon such certification, that court shall enter an appropriate order noting receipt of certification and vacating any previously entered stay of execution. A copy of such order shall be sent to the sentencing court, at which time the sentencing court shall fix a new time period for execution as provided in Code Section 17-10-40. The judge of the court which made the determination on the issue of mental competency shall cause the new order and other proceedings in the case to be presented on the minutes of the court.
The costs of a prosecution, except the fees of his own witnesses, shall not be demanded of a defendant until after trial and conviction. If convicted, judgment may be entered against the defendant for all costs accruing in the committing and trial courts and by any officer pending the prosecution. The judgment shall be a lien from the date of his arrest on all the property of the defendant. The clerk shall issue an execution on the judgment against the property.
No defendant shall be liable for the costs of any witness of the state, unless such witness was subpoenaed, sworn, and examined during the trial, nor for the costs of more than two witnesses testifying on the same point, unless the court shall certify that the question at issue was of such a character as to require the testimony of more than two witnesses.
Any person convicted of murder or manslaughter in a case where an inquest has been held concerning the cause of death of the victim shall be charged for the costs of the inquest as part of the costs of prosecution.
(a) The prosecutor's name shall be endorsed on every indictment, and he shall be compelled to pay all costs and jail fees upon the acquittal or discharge of the person accused when:
(1) The grand jury, by its foreman, on returning “no bill,” expresses as its opinion that the prosecution was unfounded or malicious;
(2) A jury on the trial of the prosecution finds it to be malicious; or
(3) The prosecution is abandoned before trial. When it is thus abandoned, the officer who issued the warrant shall enter a judgment against the prosecutor for all the costs and enforce it by an execution in the name of the state or by an attachment for contempt.
(b) A magistrate may, in his discretion, assess costs and jail fees against the person who instigated the prosecution when, at a committal hearing, the action is dismissed for want of probable cause and the magistrate finds that the complaint was unfounded and malicious. This subsection shall not apply to law enforcement personnel.
(a) When the venue in a case is changed, the whole costs of the case, jail fees of the person to be tried, and expenses of the trial in the county to which it was transferred shall be paid by the county from which the case was removed.
(b) The entire court costs, including the costs of the sheriff, bailiff, clerks, and jurors, shall also be paid by the county from which the case was removed and shall have the same priority as jail fees. The county in which the case is tried shall be reimbursed after paying the court costs incurred.
This article shall be known and may be cited as the “Capital Felony Expense Act.”
As used in this article, the term:
(1) “Capital felony case” means a criminal case in which the death penalty may be imposed upon the defendant under the laws of this state.
(2) “Capital felony expenses” means expenses incurred by a county and paid from county funds as a direct result of a capital felony case being tried by a superior court. The term includes expenses from the date of the arrest of the defendant to the date of the superior court conviction, expenses from the date of the conviction until the date of the last appellate court affirmance of the conviction, expenses from the last appellate court reversal to any subsequent superior court convictions or retrials, expenses from any retrials to the last appellate court action on the conviction, expenses from the date of the arrest of the defendant to the date of the defendant's release if there is no conviction or if the conviction is reversed and there is no retrial, or expenses during any combination of these periods. The term shall not include the following expenses:
(A) Any expenses reimbursed by or pursuant to state law;
(B) The salaries, compensation, and expenses of all county officers and employees, except for any compensation and expenses of temporary employees employed as a direct result of the capital felony case or extraordinary expenses incurred by county officers and employees as a direct result of the capital felony case; and
(C) County paid supplements to the salaries or compensation of state officers and employees.
(3) “Commissioner” means the commissioner of community affairs.
(4) “County revenue” means the most current available total of adjusted taxes as determined from the annual financial report relating to local government finances filed by the county with the Department of Community Affairs pursuant to Code Section 36-81-8.
(a) Each county which is responsible for the costs of a capital felony case will be reimbursed for capital felony expenses as provided in this Code section. With respect to one or more capital felony cases, expenses from the date of arrest will be accumulated. When one or more capital felony cases result in capital felony expenses, the accumulation of which is more than 5 percent of county revenue for the calendar year in which the superior court conviction occurs or in which the defendant is released if not convicted, the county will be reimbursed for all such accumulated capital felony expenses in excess of the 5 percent level. After a county has qualified or been reimbursed for capital felony expenses for any calendar year, the county shall be eligible for any capital felony expenses resulting from such case or cases in subsequent calendar years prior to the appeal of such case or cases. County revenues shall not be applicable in determining the amount of reimbursement for capital felony expenses occurring in such subsequent years prior to the appeal of the case or cases.
(b) If one or more capital felony cases are appealed, expenses from the date of the superior court conviction will be accumulated. When the appeal of one or more capital felony cases results in capital felony expenses, the accumulation of which is more than 5 percent of county revenue for the calendar year in which the last appellate court action on the conviction occurs, the county will be reimbursed for all such capital felony expenses in excess of the 5 percent level. If the county chooses not to seek reimbursement for capital felony expenses from the date of arrest to the date of the superior court conviction and instead seeks reimbursement for its capital felony expenses through the last appellate court action, the county will be reimbursed for all accumulated capital felony expenses in excess of the 5 percent level.
(c) If a capital felony case is appealed and the conviction is reversed, capital felony expenses for any subsequent retrial and appeals will be handled in accordance with the provisions of subsections (a) and (b) of this Code section.
(d) No capital felony expenses for which reimbursement has already been made will again be included in any subsequent calculations or reimbursement requests.
(a)(1) Reimbursement payments for eligible capital felony expenses under this article will be made to the governing authority of each county incurring capital felony expenses. The payments will be made during the second quarter of a calendar year for capital felony expenses eligible for reimbursement during the immediately preceding calendar year; provided, however, that, if a county is reimbursed during the second quarter of a calendar year and has additional capital felony expenses eligible for reimbursement during the remainder of such calendar year resulting from the same case or cases, payments will be made during the fourth quarter of such calendar year for the additional capital felony expenses eligible for reimbursement.
(2) Reimbursement payments shall be made from funds appropriated for such purpose pursuant to subsection (a) of Code Section 17-11-24, and no payments are required to be made if funds are not available or have not been appropriated.
(b)(1) In the event that requests for reimbursement exceed the amount appropriated for this article, the commissioner shall have the right to reduce each request proportionally so that the total amount of requests shall not exceed the total amount of funds available for reimbursement payments at the time of the request.
(2) Notwithstanding any other provisions of this Code section, during the first payment cycle of a state fiscal year (fourth quarter of a calendar year) not more than one-half of the funds available for reimbursement will be expended for reimbursement purposes.
(a) The commissioner shall administer this article and shall make payments to counties for the reimbursement of capital felony expenses as provided by this article. The payments shall be made from funds appropriated to the Department of Community Affairs specifically for the purpose of making reimbursements pursuant to this article.
(b) The commissioner shall adopt rules and regulations for the administration of this article. The rules and regulations shall be distributed to the county governing authorities and to the clerks of the superior courts.
(c) The clerks of the superior courts will be the local administrators of this article; and, consistent with rules and regulations promulgated by the commissioner as provided by subsection (b) of this Code section, the clerks will maintain records of capital felony expenses for the purposes of this article. Based on such records, the clerk of each superior court will certify to the commissioner, during the first quarter of each calendar year, capital felony expenses eligible for reimbursement during the preceding calendar year.
(a) This chapter shall be known and may be cited as the “Georgia Indigent Defense Act of 2003.”
(b) The Georgia Public Defender Council shall be an independent agency within the executive branch of state government.
(c) The council shall be responsible for assuring that adequate and effective legal representation is provided, independently of political considerations or private interests, to indigent persons who are entitled to representation under this chapter.
As used in this chapter, the term:
(1) “Assistant public defender” means an attorney who is employed by any circuit public defender.
(2) “Circuit public defender” means the head of a public defender office providing indigent defense representation within any given judicial circuit of this state.
(3) “Circuit public defender office” means the office of any of the several circuit public defenders.
(4) “Council” means the Georgia Public Defender Council.
(5) “Director” means the director of the Georgia Public Defender Council.
(6) “Indigent person” or “indigent defendant” means:
(A) A person charged with a misdemeanor, violation of probation, or a municipal or county offense punishable by imprisonment who earns less than 100 percent of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person or his or her dependents;
(B) A juvenile charged with a delinquent act or a violation of probation punishable by detention whose parents earn less than 125 percent of the federal poverty guidelines unless there is evidence that the juvenile or his or her parents have other resources that might reasonably be used to employ a lawyer without undue hardship on the juvenile, his or her parents, or the parent's dependents; and
(C) A person charged with a felony who earns or, in the case of a juvenile, whose parents earn, less than 150 percent of the federal poverty guidelines unless there is evidence that the person has other resources that might reasonably be used to employ a lawyer without undue hardship on the person, his or her dependents, or, in the case of a juvenile, his or her parents or the parent's dependents.
In no case shall a person whose maximum income level exceeds 150 percent of the federal poverty level or, in the case of a juvenile, whose household income exceeds 150 percent of the federal poverty level be an indigent person or indigent defendant.
(7) “Legislative oversight committee” means the Legislative Oversight Committee for the Georgia Public Defender Council.
(8) “Public defender” means an attorney who is employed in a circuit public defender office or who represents an indigent person pursuant to this chapter.
(a) There is created the Georgia Public Defender Council to be composed of nine members. Other than county commission members, members of the council shall be individuals with significant experience working in the criminal justice system or who have demonstrated a strong commitment to the provision of adequate and effective representation of indigent defendants.
(b) Effective July 1, 2011, the council shall be reconstituted. The members serving on the council immediately prior to July 1, 2011, shall cease to serve on that date, but such prior members shall be eligible for reappointment to succeed themselves or to fill another position on the council.
(c) The nine members of the council shall be appointed as follows:
(1) Five members shall be appointed by the Governor. The Governor shall appoint three county commissioners who have been elected and are serving as members of a county governing authority in this state. The county commissioner councilmembers appointed by the Governor shall be from different geographic regions of this state. The Governor may solicit recommendations for such appointees from the Association County Commissioners of Georgia. Each county commissioner councilmember shall serve a term of four years; provided, however, that the initial appointments shall be for one, two, and three years, respectively, as designated by the Governor for each appointment, and thereafter, such members shall serve terms of four years. A county commission councilmember shall be eligible to serve so long as he or she retains the office by virtue of which he or she is serving on the council. The Governor shall appoint two other members to the council, one of whom shall be a circuit public defender, who shall serve terms of four years;
(2) Two members shall be appointed by the Lieutenant Governor and each shall serve terms of four years; provided, however, that the initial appointments shall be for one and four years, respectively, as designated by the Lieutenant Governor for each appointment, and thereafter, such members shall serve terms of four years; and
(3) Two members shall be appointed by the Speaker of the House of Representatives and each shall serve terms of four years; provided, however, that the initial appointments shall be for two and three years, respectively, as designated by the Speaker of the House of Representatives for each appointment, and thereafter, such members shall serve terms of four years.
(d) All initial terms shall begin on July 1, 2011, and their successors' terms shall begin on July 1 following their appointment. Any vacancy for a member shall be filled by the appointing authority, and such appointee shall serve the balance of the vacating member's unexpired term. Any member of the council may be appointed to successive terms.
(e) In making the appointments of members of the council who are not county commissioners, the appointing authorities shall seek to identify and appoint persons who represent a diversity of backgrounds and experience and may solicit suggestions from the State Bar of Georgia, local bar associations, the Georgia Association of Criminal Defense Lawyers, the councils representing the various categories of state court judges in Georgia, and the Prosecuting Attorneys' Council of the State of Georgia, as well as from the public and other interested organizations and individuals within this state. The appointing authorities may solicit recommendations for county commissioners from the Association County Commissioners of Georgia. The appointing authorities shall not appoint a prosecuting attorney as defined in paragraph (6) of Code Section 19-13-51, any employee of a prosecuting attorney's office, or an employee of the Prosecuting Attorneys' Council of the State of Georgia to serve on the council.
(a) The council:
(1) Shall be a legal entity;
(2) Shall have perpetual existence;
(3) May contract;
(4) May own property;
(5) May accept funds, grants, and gifts from any public or private source, which shall be used to defray the expenses incident to implementing its purposes;
(6) May adopt and use an official seal; and
(7) May establish a principal office.
(b) The council shall establish auditing procedures as may be required in connection with the handling of public funds. The state auditor shall be authorized and directed to make an annual audit of the transactions of the council and to make a complete report of the same to the General Assembly. The annual audit shall disclose all moneys received by the council and all expenditures made by the council by revenue source, including all programs and special projects itemized in the General Appropriations Act. The annual audit shall include an itemization by revenue source of encumbered and reserved money. Revenue sources shall include each county governing authority's expenditures which are made pursuant to Code Sections 17-12-31 and 17-12-32 and city or county expenditures which are made pursuant to subsection (d) of Code Section 17-12-23. The state auditor shall also make an audit of the affairs of the council at any time when requested to do so by a majority of the council or by the Governor or General Assembly.
(c) The council may not provide compensation from its funds to any administrative or clerical personnel employed by the council if the personnel are then receiving retirement compensation from any retirement or pension fund created by Title 47 to provide compensation for past services as a judicial officer, prosecuting attorney, indigent defense attorney, court officer, or law enforcement officer except for county or municipal retirement funds.
(a) To be eligible for appointment as the director, a candidate shall be a member in good standing of the State Bar of Georgia with at least seven years' experience in the practice of law. The director shall be appointed by the Governor and shall serve at the pleasure of the Governor.
(b)(1) The director shall work with and provide support services and programs for circuit public defender offices and other attorneys representing indigent persons in criminal or juvenile cases in order to improve the quality and effectiveness of legal representation of such persons and otherwise fulfill the purposes of this chapter. Such services and programs shall include, but shall not be limited to, technical, research, and administrative assistance; educational and training programs for attorneys, investigators, and other staff; assistance with the representation of indigent defendants with mental disabilities; assistance with the representation of juveniles; assistance with death penalty cases; and assistance with appellate advocacy.
(2) The director may establish divisions within the office to administer the services and programs as may be necessary to fulfill the purposes of this chapter. The director shall establish a mental health advocacy division and the Georgia capital defender division.
(3) The director may hire and supervise such staff employees and may contract with outside consultants on behalf of the office as may be necessary to provide the services contemplated by this chapter.
(c) The director shall have and may exercise the following power and authority:
(1) The power and authority to take or cause to be taken any or all action necessary to perform any duties, responsibilities, or functions which the director is authorized by law to perform and to exercise any power or authority which the council is authorized under subsection (a) of Code Section 17-12-4 to exercise; and
(2) The power and authority to assist the council in the performance of its duties, responsibilities, and functions and the exercise of its power and authority.
(d) The director shall:
(1) Prepare and submit to the council a proposed budget for the council. The director shall also prepare and submit an annual report containing pertinent data on the operations, costs, and needs of the council and such other information as the council may require;
(2) Develop such procedures as the director determines may be necessary to carry out the provisions of this chapter;
(3) Administer and coordinate the operations of the council;
(4) Maintain proper records of all financial transactions related to the operation of the council;
(5) At the director's discretion, solicit and accept on behalf of the council any funds that may become available from any source, including government, nonprofit, or private grants, gifts, or bequests;
(6) Coordinate the services of the council with any federal, county, or private programs established to provide assistance to indigent persons in cases subject to this chapter;
(7) Provide for the training of attorneys and other staff involved in the legal representation of persons subject to this chapter;
(8) Attend all council meetings, except those meetings or portions thereof that address the question of appointment or removal of the director;
(9) Ensure that the expenditures of the council are not greater than the amounts budgeted or available from other revenue sources;
(10) Hire or remove a mental health advocate who shall serve as director of the division of the office of mental health advocacy;
(11) Hire or remove the capital defender who shall serve as the director of the division of the office of the Georgia capital defender; and
(12) Evaluate each circuit public defender's job performance.
(e) The director shall not:
(1) Provide direct legal representation to any person entitled to services pursuant to this chapter; and
(2) Engage in the private practice of law for profit.
(a) The council may assist the public defenders throughout the state in their efforts to provide adequate legal defense to the indigent. Assistance may include:
(1) The preparation and distribution of a basic defense manual and other educational materials;
(2) The preparation and distribution of model forms and documents employed in indigent defense;
(3) The promotion of and assistance in the training of indigent defense attorneys;
(4) The provision of legal research assistance to public defenders; and
(5) The provision of such other assistance to public defenders as may be authorized by law.
(b) The council:
(1) Shall be the fiscal officer for the circuit public defender offices and shall account for all moneys received from each governing authority; and
(2) May collect, maintain, review, and publish in print or electronically records and statistics for the purpose of evaluating the delivery of indigent defense representation in Georgia.
(a) All members of the council shall at all times act in the best interest of indigent defendants who are receiving legal representation under the provisions of this chapter.
(b) All members of the council shall be entitled to vote on any matter coming before the council unless otherwise provided by law or by rules adopted by the council concerning conflicts of interest.
(c) Each member of the council shall serve until a successor has been appointed. Removal of councilmembers shall be for cause and shall be in accordance with policies and procedures adopted by the council.
(d) Unless otherwise provided in this article, a quorum shall be a majority of the members of the council who are then in office, and decisions of the council shall be by majority vote of the members present, except that a majority of the entire council shall be required to approve the appointment of the chairperson and for annual approval of an alternative delivery system pursuant to Code Section 17-12-36 and other matters as set forth in Code Section 17-12-36. The vote of two-thirds of the members of the entire council shall be required to remove the chairperson of the council or to overturn the director's decision regarding the removal of a circuit public defender.
(e) The council shall meet at least semiannually and at such other times and places as it deems necessary or convenient for the performance of its duties.
(f) The council shall elect a chairperson and such officers from the members of the council as it deems necessary and shall adopt such rules for the transaction of its business as it desires. The chairperson and officers shall serve for a term of two years and may be removed without cause by a vote of two-thirds of the members of the entire council and for cause by a majority vote of the entire council. The chairperson shall retain a vote on all matters except those in which the chairperson has a conflict of interest or the removal of the chairperson for cause. The council shall keep and maintain minutes of all council meetings.
(g) The members of the council shall receive no compensation for their services but shall be reimbursed for their actual expenses incurred in the performance of their duties as members of the council. Any expenses incurred by the council shall be paid from the general operating budget of the council.
The council shall be authorized to conduct or approve for credit or reimbursement, or both, basic and continuing legal education courses or other appropriate training programs for the circuit public defenders or their staff members. The council, in accordance with such policies as it shall adopt, shall be authorized to provide reimbursement, in whole or in part, for the actual expenses incurred by any circuit public defender or their staff members in attending any approved course or training program from funds as may be appropriated or otherwise made available to the council. The circuit public defenders or their staff members shall be authorized to receive reimbursement for actual expenses incurred in attending approved courses or training programs. The council shall adopt policies governing the approval of courses and training programs for credit or reimbursement as may be necessary to administer this Code section properly.
(a) Upon request, the council shall prepare annually a report of its activities in order to provide the General Assembly, the Governor, and the Supreme Court of Georgia with an accurate description and accounting of the preceding year's expenditures and revenue, including moneys received from cities and county governing authorities.
(b) Upon request, the council shall provide to the General Assembly, the Governor, and the Supreme Court of Georgia a detailed analysis of all grants and funds, whether public or private, applied for or granted, together with how and in what manner the same are to be utilized and expended.
(c) Upon request, the director shall prepare annually a report in order to provide the General Assembly, the Supreme Court, and the Governor with information on the council's assessment of the delivery of indigent defense services, including, but not limited to, the costs involved in operating each program and each governing authority's indigent person verification system, methodology used, costs expended, and savings realized.
(a) There is created the Legislative Oversight Committee for the Georgia Public Defender Council which shall be composed of eight persons: three members of the House of Representatives appointed by the Speaker of the House of Representatives, three members of the Senate appointed by the Senate Committee on Assignments or such person or entity as established by Senate rule, and one member of the House of Representatives and one member of the Senate appointed by the Governor. The members of such committee shall be selected within ten days after the convening of the General Assembly in each odd-numbered year and shall serve until their successors are appointed.
(b) The Speaker of the House of Representatives shall appoint a member of such committee to serve as chairperson, and the Senate Committee on Assignments or such person or entity as established by Senate rule shall appoint one member of the committee to serve as vice chairperson during each even-numbered year. The Senate Committee on Assignments or such person or entity as established by Senate rule shall appoint a member of such committee to serve as chairperson, and the Speaker of the House of Representatives shall appoint one member to serve as vice chairperson during each odd-numbered year. Such committee shall meet at least once each year and, upon the call of the chairperson, at such additional times as deemed necessary by the chairperson.
(c) It shall be the duty of such committee to review and evaluate:
(1) Information on new programs submitted by the council;
(2) Information on policies proposed by the council;
(3) The strategic plans for the council;
(4) Program evaluation reports and budget recommendations of the council;
(5) The fiscal impact of fees and fines on counties;
(6) The reports submitted pursuant to Code Section 15-21A-7 in order to identify, among other things, opportunities to reduce or consolidate fees, fines, and surcharges; and
(7) Such other information or reports as deemed necessary by such committee.
(d) The council and director shall cooperate with such committee and provide such information or reports as requested by the committee for the performance of its functions.
(e) The council shall submit its budget estimate to the director of the Office of Planning and Budget in accordance with subsection (a) of Code Section 45-12-78.
(f) The members of such committee shall receive the allowances authorized for legislative members of legislative committees. The funds necessary to pay such allowances shall come from funds appropriated to the House of Representatives and the Senate.
(g) The legislative oversight committee shall be authorized to request that a performance audit of the council be conducted.
The members of the council as created by this article, the members of the circuit public defender supervisory panel created by Article 2 of this chapter, and other policy-making or administrative personnel acting in a policy-making or administrative capacity shall not be subject to civil liability resulting from any act or failure to act in the implementation and carrying out of the purposes of this chapter.
(a) The mental health advocacy division shall represent in any court in this state indigent persons found not guilty by reason of insanity at the time of the crime or found mentally incompetent to stand trial and shall be the successor to the office of mental health advocacy created by Article 4 of this chapter as it existed on June 30, 2008. Any assets or resources of the office of mental health advocacy shall be transferred to the council. The mental health advocacy division office shall serve all counties of this state.
(b) Whenever any person has been found not guilty by reason of insanity at the time of the crime pursuant to Code Section 17-7-131 or found mentally incompetent to stand trial pursuant to Code Section 17-7-130 and has been determined to be an indigent person, the court in which such case is pending shall notify the mental health advocacy division, and the division may assume the defense and representation of such person in all matters pursuant to Code Sections 17-7-130 and 17-7-131, as applicable, if the resources, funding, and staffing of the division allow; provided, however, that the circuit public defender or other attorney who represented the indigent person at the time of the finding of not guilty by reason of insanity at the time of the crime or the finding of mentally incompetent to stand trial shall have the option to retain responsibility for the representation of any such person.
(c) Nothing in this Code section shall prevent the circuit public defender, the court, or the court appointed attorney from requesting the participation of the mental health advocacy division prior to a finding of not guilty by reason of insanity at the time of the crime or a finding of mentally incompetent to stand trial. The circuit public defender, the court, or the court appointed attorney may request that the mental health advocacy division assist in the case prior to a plea being entered and accepted by the court.
(d) If for any reason the mental health advocacy division is unable to represent any indigent person found not guilty by reason of insanity at the time of the crime or found mentally incompetent to stand trial, such representation shall be provided as otherwise provided by law.
(e) The director shall be responsible for management of the mental health advocacy division; provided, however, that the director may delegate day-to-day operations of the division to the mental health advocate.
(a) The Georgia capital defender division shall represent all indigent persons charged with a capital felony for which the death penalty is being sought in any court in this state and shall be the successor to the Office of the Georgia Capital Defender created by Article 6 of this chapter as it existed on June 30, 2008. Any assets or resources of the Office of the Georgia Capital Defender shall be transferred to the council. The Georgia capital defender division shall serve all counties of this state.
(b) Whenever any person accused of a capital felony for which the death penalty is being sought has been determined to be an indigent person who has requested the assistance of counsel, the court in which the charges are pending shall notify the Georgia capital defender division, and the division shall assume the defense of such person except as provided in Code Section 17-12-12.1.
(c) No person shall be assigned the primary responsibility of representing an indigent person accused of a capital offense for which the death penalty is sought unless such person is authorized to practice law in this state and is otherwise competent to counsel and defend a person charged with a capital felony.
(d) The Georgia capital defender division or appointed counsel's defense of a defendant in a case in which the death penalty is sought shall include all proceedings in the trial court and any appeals to the Supreme Court of Georgia. Neither the Georgia capital defender division nor appointed counsel shall assist with any petition for a writ of habeas corpus in federal court.
(e) The director shall be responsible for management of the Georgia capital defender division; provided, however, that the director may delegate day-to-day operations of the division to the capital defender.
(a) If there is a conflict of interest such that the Georgia capital defender division is unable to defend any indigent person accused of a capital felony for which the death penalty is being sought, the director shall determine and appoint counsel to represent the defendant. The director shall establish the contractual agreement with the defendant's counsel for payment of representing the defendant, and, when feasible and prudent, a flat fee structure shall be utilized.
(b) A maximum of two attorneys shall be paid by the council pursuant to a contractual agreement or at an hourly rate established by the council with state funds appropriated to the council. State funds shall be appropriated to the council for use by the Georgia capital defender division for the first $150,000.00 paid for each death penalty case. Funding for attorney's fees and expenses between $150,000.01 and $250,000.00 for each death penalty case shall be paid through state appropriations for 75 percent of such attorney's fees and expenses, and the county governing authority where the indictment was returned shall pay 25 percent of such attorney's fees and expenses. Funding for all attorney's fees and expenses in excess of $250,000.00 for each death penalty case shall be paid through state appropriations for 50 percent of such attorney's fees and expenses, and the county governing authority where the indictment was returned shall pay 50 percent of such attorney's fees and expenses.
(c) The council, with the assistance of the Georgia capital defender division, shall establish guidelines for all expense requests for cases in which the death penalty is sought, including, but not limited to, attorney's fees, expert witness fees, investigative fees, travel and accommodation expenses, and copy and transcription costs.
(d) A county governing authority may provide supplemental compensation to counsel appointed pursuant to this Code section.
(a) On and after July 1, 2011, there is created in each judicial circuit in this state a circuit public defender supervisory panel to be composed of three members, all of whom shall be attorneys who regularly practice in that particular judicial circuit. The chief judge of the superior court of the circuit shall appoint one member. The Governor shall appoint one member. In a single county judicial circuit, the chairperson of the governing authority or sole commissioner shall appoint one member; in multicounty judicial circuits, the chairpersons of the governing authorities or sole commissioners shall caucus and appoint one member. When a caucus is needed to appoint a member of the supervisory panel, the chairperson or sole commissioner of the largest county by population in the judicial circuit shall convene the caucus. Members of the circuit public defender supervisory panel shall be individuals with significant experience working in the criminal justice system or who have demonstrated a strong commitment to the provision of adequate and effective representation of indigent defendants. A prosecuting attorney as defined in paragraph (6) of Code Section 19-13-51, any employee of a prosecuting attorney's office, or an employee of the Prosecuting Attorneys' Council of the State of Georgia shall not serve as a member of the circuit public defender supervisory panel after July 1, 2005. On and after July 1, 2008, no employees of the council shall serve as a member of the circuit public defender supervisory panel. Members of the circuit public defender supervisory panel shall reside in the judicial circuit in which they serve. The circuit public defender supervisory panel members shall serve for a term of five years. Any vacancy for an appointed member shall be filled by the appointing authority within 60 days of the vacancy occurring.
(b)(1) By majority vote of its membership, the circuit public defender supervisory panel shall annually elect a chairperson and secretary. The chairperson shall conduct the meetings and deliberations of the panel and direct all activities. The secretary shall keep accurate records of all the meetings and deliberations and perform such other duties as the chairperson may direct. The panel may be called into session upon the direction of the chairperson or by the council.
(2) By majority vote of its membership, the circuit public defender supervisory panel shall nominate not more than five people to serve as the circuit public defender in the circuit. The director shall select the circuit public defender from the panel's list of nominees. A circuit public defender shall serve a term for up to four years and may be appointed for successive terms but shall not be reappointed if he or she was removed pursuant to subsection (c) of this Code section.
(c) A circuit public defender may be removed for cause by the director. If a circuit public defender wants to appeal such removal, he or she may appeal the decision to the council. By a vote of two-thirds of the members of the entire council, the council may overturn the director's decision. Any appeal regarding a removal request shall be submitted to the council within 15 days of the effective date of the removal, and the council shall take action in hearing the appeal at its next regularly scheduled meeting and take final action within 30 days thereafter. A circuit public defender who has been removed by the director who has filed an appeal with the council shall continue to serve as the circuit public defender until the council reaches a decision on the appeal.
(d) A circuit public defender supervisory panel may convene at any time during its circuit public defender's term of office and shall convene at least annually for purposes of reviewing the circuit public defender's job performance and the performance of the circuit public defender office. The director and circuit public defender shall be notified at least two weeks in advance of the convening of the circuit public defender supervisory panel. The circuit public defender shall be given the opportunity to appear before the circuit public defender supervisory panel and present evidence and testimony. The chairperson shall determine the agenda for the annual review process, but, at a minimum, such review shall include usage of state and local funding, expenditures, and budgeting matters. The chairperson shall make an annual report on or before the thirtieth day of September of each year concerning the circuit public defender supervisory panel's findings regarding the job performance of the circuit public defender and his or her office to the director on a form provided to the panel by the director. If at any time the circuit public defender supervisory panel finds that the circuit public defender is performing in a less than satisfactory manner or finds information of specific misconduct, the circuit public defender supervisory panel may by majority vote of its members adopt a resolution seeking review of its findings and remonstrative action by the director. Such resolution shall specify the reason for such request. All evidence presented and the findings of the circuit public defender supervisory panel shall be forwarded to the director within 15 days of the adoption of the resolution. The director shall initiate action on the circuit public defender supervisory panel's resolution within 30 days of receiving the resolution. The director shall notify the circuit public defender supervisory panel, in writing, of any actions taken pursuant to submission of a resolution under this subsection.
(e) If a vacancy occurs for the position of circuit public defender, the director shall appoint an interim circuit public defender to serve until the director has appointed a replacement. Within 30 days of the vacancy occurring, the circuit public defender supervisory panel shall meet and nominate not more than five people to serve as a replacement circuit public defender. The director shall select the replacement circuit public defender from the panel's list of nominees.
To be eligible to fill the position of circuit public defender, a person must:
(1) Have attained the age of 25 years;
(2) Have been duly admitted and licensed to practice law in the superior courts for at least three years;
(3) Be a member in good standing of the State Bar of Georgia; and
(4) If previously disbarred from the practice of law, have been reinstated as provided by law.
(a) The director, with input from the council, shall establish a procedure for providing legal representation in cases where the circuit public defender office has a conflict of interest. Such procedure may include, but shall not be limited to, the appointment of individual counsel on a case-by-case basis or the utilization of another circuit public defender office. Whatever procedure the director establishes for each circuit's conflict of interest cases shall be adhered to by the circuit public defender office. It is the intent of the General Assembly that the director consider the most efficient and effective system to provide legal representation where the circuit public defender office has a conflict of interest.
(b) The circuit public defender shall establish a method for identifying conflicts of interest at the earliest possible opportunity. If there is a conflict of interest such that the circuit public defender office cannot represent a defendant and an attorney who is not employed by the circuit public defender office is appointed, such attorney shall have a contractual relationship with the council to represent indigent persons in conflict of interest cases, and such relationship may include, but shall not be limited to, a flat fee structure.
(c) Attorneys who seek appointment in conflict cases shall have such experience or training in the defense of criminal cases as is necessary in light of the complexity of the case to which he or she is appointed and shall meet such qualifications and standards for the representation of indigent defendants as are established by the council.
(a) The circuit public defender shall provide representation in the following actions and proceedings:
(1) Any case prosecuted in a superior court under the laws of the State of Georgia in which there is a possibility that a sentence of imprisonment or probation or a suspended sentence of imprisonment may be adjudged;
(2) A hearing on a revocation of probation in a superior court;
(3) Any juvenile court case where the juvenile may face a disposition of confinement, commitment, or probation; and
(4) Any direct appeal of any of the proceedings enumerated in paragraphs (1) through (3) of this subsection.
(b) In each of the actions and proceedings enumerated in subsection (a) of this Code section, entitlement to the services of counsel begins not more than three business days after the indigent person is taken into custody or service is made upon him or her of the charge, petition, notice, or other initiating process and such person makes an application for counsel to be appointed.
(c) Each circuit public defender shall establish a juvenile division within the circuit public defender office to specialize in the defense of juveniles.
(d) A city or county may contract with the circuit public defender office for the provision of criminal defense for indigent persons accused of violating city or county ordinances or state laws. If a city or county does not contract with the circuit public defender office, the city or county shall be subject to all applicable policies and standards adopted by the council for representation of indigent persons in this state.
(a) The circuit public defender, any other person or entity providing indigent defense services, or the system established pursuant to Code Section 17-12-80 shall determine if a person or juvenile arrested, detained, or charged in any manner is an indigent person entitled to representation under this chapter.
(b) The circuit public defenders shall administer and coordinate the day-to-day operations of their respective offices and shall supervise the assistant public defenders and other staff serving in the office.
(c) The circuit public defender shall keep and maintain appropriate records, which shall include the number of persons represented, including cases assigned to other counsel based on conflict of interest; the offenses charged; the outcome of each case; the expenditures made in carrying out the duties imposed by this chapter; and any other information requested by the council.
(a) Each circuit public defender shall receive an annual salary equal to the annual salary of a district attorney and shall receive any cost-of-living adjustments that may be given by the General Assembly in the General Appropriations Act for which district attorneys are eligible. Any increase granted pursuant to this subsection shall become effective at the same time that funds are made available for the increase for such employees. Each circuit public defender may also be entitled to an accountability court salary supplement as set forth in Code Section 17-12-25.1.
(b) The county or counties comprising the judicial circuit may supplement the salary of the circuit public defender in an amount as is or may be authorized by local Act or in an amount as may be determined by the governing authority of the county or counties, whichever is greater.
(c) No circuit public defender shall engage in the private practice of law for profit or serve concurrently in any judicial office.
(a) Whenever a circuit has implemented a drug court division, mental health court division, or veterans court division, then on and after January 1, 2016, the state shall pay the circuit public defender in such circuit an annual accountability court supplement of $6,000.00. Such supplement shall be paid from state funds by the Georgia Public Defender Council in equal monthly installments as regular compensation.
(b) Notwithstanding Code Sections 17-12-27 and 17-12-28, the accountability court salary supplement paid pursuant to this Code section shall not be included in any calculation of compensation paid to assistant circuit public defenders or investigators that is measured as a percentage of a circuit public defender's salary.
(c) When a local law provides for a salary to be paid based on a percentage of, total compensation for, or similar mathematical relationship to a circuit public defender's salary, the accountability court salary supplement paid pursuant to this Code section shall not be included in the calculation of compensation to be paid by a county, municipality, or consolidated government.
(d) Notwithstanding subsection (b) of Code Section 17-12-25 and Code Section 17-12-30, on and after January 1, 2016, no county or counties comprising the circuit shall increase an aggregate county salary supplement paid to the circuit public defender or a state-paid position appointed pursuant to this article, if such supplement is $50,000.00 or more.
The council shall prepare and submit to the director of the Office of Planning and Budget its budget estimate necessary for fulfilling the purposes of this chapter in accordance with Code Section 45-12-78. The council shall be authorized to seek, solicit, apply for, and utilize funds from any public or private source to use in fulfilling the purposes of this chapter.
(a) Subject to the provisions of this Code section, the circuit public defender in each judicial circuit is authorized to appoint:
(1) One assistant public defender for each superior court judge authorized for the circuit, excluding the chief judge and senior judges; and
(2) Subject to funds being appropriated by the General Assembly or otherwise available, additional assistant public defenders as may be authorized by the council. In authorizing additional assistant public defenders, the council shall consider the caseload, present staff, and resources available to each circuit public defender and shall make authorizations as will contribute to the efficiency of individual circuit public defenders and the effectiveness of providing adequate legal defense for indigent defendants.
(b) Each assistant public defender appointed pursuant to subsection (a) of this Code section shall be classified based on education, training, and experience. The jobs of assistant public defenders and the minimum qualifications required for appointment or promotion to each job shall be established by the council based on education, training, and experience and in accordance with the provisions of Code Sections 17-12-30 and 17-12-34.
(c) Each assistant public defender appointed pursuant to this Code section shall be compensated based on a salary range established in accordance with subsection (c) of Code Section 17-12-30. The salary range for each job established in accordance with subsection (b) of this Code section shall be as follows:
(1) Assistant public defender I. Not less than $38,124.00 nor more than 65 percent of the compensation of the circuit public defender;
(2) Assistant public defender II. Not less than $40,884.00 nor more than 70 percent of the compensation of the circuit public defender;
(3) Assistant public defender III. Not less than $45,108.00 nor more than 80 percent of the compensation of the circuit public defender; and
(4) Assistant public defender IV. Not less than $52,176.00 nor more than 95 percent of the compensation of the circuit public defender.
(d) All personnel actions involving attorneys appointed pursuant to this Code section shall be made by the circuit public defender in writing in accordance with the provisions of Code Section 17-12-30.
(e)(1) All salary advancements shall be based on quality of work, education, and performance.
(2) The salary of an assistant public defender appointed pursuant to this Code section may be increased at the first of the calendar month following the anniversary of his or her appointment.
(3) The salary of any assistant public defender who, subsequent to his or her appointment pursuant to this Code section, is awarded an LL.M. or S.J.D. degree by a law school recognized by the State Bar of Georgia from which a graduate of or student enrolled therein is permitted to take the bar examination or by a law school accredited by the American Bar Association or the Association of American Law Schools may be increased effective on the first day of the calendar month following the award of the degree, provided that such advancement does not exceed the maximum of the salary range applicable to the attorney's job classification.
(f) Any assistant public defender appointed pursuant to this Code section may be promoted to the next highest job at any time the attorney meets the minimum qualifications for such job, but in order to be eligible for promotion, the attorney shall have served not less than 12 months in the job from which the attorney is to be promoted. When an assistant public defender is promoted to the next highest job, the assistant public defender shall enter the higher job at an annual salary greater than the annual salary the assistant public defender was receiving immediately prior to the promotion.
(g) All full-time state paid employees of the office of the circuit public defender shall be state employees in the unclassified service as defined by Chapter 20 of Title 45 with all benefits of such appointed state employees as provided by law. A circuit public defender, assistant public defender, or local public defender may be issued an employee identification card by his or her employing agency; provided, however, that no employer of any such public defender shall issue nor shall any public defender display, wear, or carry any badge, shield, card, or other item that is similar to a law enforcement officer's badge or that could be reasonably construed to indicate that the public defender is a peace officer or law enforcement official.
(h) Notwithstanding the provisions of subsection (g) of this Code section, an employee of a local public defender office who was an employee of the office on June 30, 2004, and who becomes a circuit public defender or an employee of a circuit public defender office before July 1, 2005, may elect, with the consent of the former employer and the consent of the council, to remain an employee of the entity for which the employee worked as a local public defender; and such entity shall be his or her employer for all purposes, including, without limitation, compensation and employee benefits. The right to make an election pursuant to this subsection shall expire on July 1, 2005. The council shall reimburse the appropriate entity for compensation, benefits, and employer contributions under the federal Social Security Act, but the total payment from the council to the entity on behalf of the employee shall not exceed the amount otherwise payable to or for the employee under the circumstance where the employee had become a state employee.
(a) Subject to the provisions of this Code section, the circuit public defender in each judicial circuit is authorized to appoint one investigator to assist the circuit public defender in the performance of his or her official duties in the preparation of cases for trial. Subject to funds being appropriated by the General Assembly or otherwise available, the circuit public defender in each judicial circuit may appoint additional investigators as may be authorized by the council. In authorizing additional investigators, the council shall consider the caseload, present staff, and resources available to each circuit public defender and shall make authorizations as will contribute to the efficiency of individual circuit public defenders and the effectiveness of circuit public defenders throughout the state in providing adequate legal defense for indigent defendants.
(b) An investigator appointed pursuant to this Code section shall be not less than 21 years of age and shall serve at the pleasure of the circuit public defender.
(c) An investigator appointed pursuant to this Code section shall:
(1) Assist the attorneys within the office of the circuit public defender in the preparation of cases for preliminary hearings, pretrial hearings, and trial; and
(2) Perform other duties as are required by the circuit public defender.
(d) Each investigator appointed pursuant to this Code section shall be compensated based on a salary range established pursuant to Code Section 17-12-30. The salary range for the investigator appointed pursuant to this Code section shall be not less than $30,828.00 nor more than 70 percent of the compensation of the circuit public defender from state funds.
(e)(1) Except as otherwise provided in this subsection, an investigator appointed pursuant to this Code section shall be appointed initially to the entry grade of the job on the state-wide pay ranges.
(2) Any person who is employed in a nonstate paid investigator's position within the office of the circuit public defender may be transferred to a state paid position. Such transfer shall be to the job and salary range commensurate with the education and experience of the employee.
(3) Any person who is employed as a peace officer by an agency of the executive branch of state government who is appointed as an investigator pursuant to this Code section without a break in service may be appointed to an annual salary at least equal to the annual salary the person received on the last day of employment immediately preceding said appointment.
(4) Any person who was a certified peace officer employed on a full-time basis by this state, the United States or any of the several states, or a political subdivision or authority thereof may be appointed to the salary that gives the officer credit for experience as a full-time certified peace officer.
(f) Personnel appointed pursuant to this Code section shall be reimbursed for actual expenses incurred in the performance of their official duties.
(a) Each circuit public defender is authorized to employ administrative, clerical, and paraprofessional personnel as may be authorized by the council based on funds appropriated by the General Assembly or otherwise available; provided, however, that each circuit public defender shall be authorized not less than two such personnel. In authorizing administrative, clerical, and paraprofessional personnel, the council shall consider the caseload, present staff, and resources available to each circuit public defender and shall make authorizations as will contribute to the efficiency of individual circuit public defenders in providing effective criminal defense for indigent defendants.
(b) Personnel appointed pursuant to this Code section shall be compensated based on a salary range developed in accordance with Code Section 17-12-30.
(c) All personnel actions involving personnel appointed pursuant to this Code section shall be in accordance with the provisions of Code Section 17-12-30.
(a) All state paid personnel employed by the circuit public defenders pursuant to this article shall be employees of the executive branch of state government and shall be in the unclassified service as defined by Code Section 45-20-2.
(b) Personnel employed by the circuit public defenders pursuant to this article shall have the authority, duties, powers, and responsibilities as are authorized by law or as assigned by the circuit public defender and shall serve at the pleasure of the circuit public defender.
(c)(1) The council shall establish salary ranges for each state paid position authorized by this article or any other provision of law. Salary ranges shall be similar to the state-wide and senior executive ranges adopted pursuant to the rules of the State Personnel Board and shall provide for minimum, midpoint, and maximum salaries not to exceed the maximum allowable salary. In establishing the salary ranges, all amounts will be rounded off to the nearest whole dollar. The council may, from time to time, revise the salary ranges to include across-the-board increases which the General Assembly may from time to time authorize in the General Appropriations Act.
(2) The circuit public defender shall fix the compensation of each state paid employee appointed pursuant to this article in accordance with the job to which the person is appointed and the appropriate salary range.
(3) All salary advancements shall be based on quality of work, training, and performance. The salary of state paid personnel appointed pursuant to this article may be increased at the first of the calendar month following the annual anniversary of the person's appointment. No employee's salary shall be advanced beyond the maximum established in the applicable pay range.
(4) Any reduction in salary shall be made in accordance with the salary range for the position and the policies adopted by the council.
(5) The compensation of state paid personnel appointed pursuant to this article shall be paid in equal installments by the council as provided by this subsection from funds appropriated for such purpose. The council may authorize employees compensated pursuant to this Code section to participate in voluntary salary deductions as provided by Article 3 of Chapter 7 of Title 45.
(6) The governing authority of the county or counties comprising a judicial circuit may supplement the salary or fringe benefits of any state paid position appointed pursuant to this article.
(7) The governing authority of any municipality within the judicial circuit may, with the approval of the circuit public defender, supplement the salary or fringe benefits of any state paid position appointed pursuant to this article.
(a) The circuit public defender in each judicial circuit may employ additional assistant circuit public defenders, deputy circuit public defenders, or other attorneys, investigators, paraprofessionals, clerical assistants, and other employees or independent contractors if the employment of such additional personnel is provided for by local law or if the employment of such additional personnel is specifically authorized and funded by the governing authority of the county or counties comprising the judicial circuit. The circuit public defender shall define the duties and fix the title of any attorney or other employee of the office of the circuit public defender.
(b) Personnel employed by the circuit public defender pursuant to this Code section shall serve at the pleasure of the circuit public defender and shall be compensated by the county or counties comprising the judicial circuit in the manner and in an amount fixed either by local Act or by the circuit public defender with the specific approval of the county or counties comprising the judicial circuit.
The governing authority of any county or municipality within the judicial circuit which provides additional personnel for the office of circuit public defender may contract with the council to provide such additional personnel in the same manner as is provided for state paid personnel in this article. Any such personnel shall be considered state employees and shall be entitled to the same fringe benefits as other state paid personnel employed by the circuit public defender pursuant to this article. The governing authority of such county or municipality shall transfer to the council such funds as may be necessary to cover the compensation, benefits, travel, and other expenses for such personnel.
(a) Any assistant public defender or other attorney at law employed full time by the circuit public defender who is compensated in whole or in part by state funds shall not engage in the private practice of law for profit or serve concurrently in any judicial office.
(b) Any assistant public defender or any other attorney at law employed by the circuit public defender shall be a member of the State Bar of Georgia and shall be admitted to practice before the appellate courts of this state. The assistant public defender shall serve at the pleasure of the circuit public defender and shall have such authority, powers, and duties as may be assigned by the circuit public defender.
The governing authority of the county shall provide, in conjunction and cooperation with the other counties in the judicial circuit and in a pro rata share according to the population of each county, appropriate offices, utilities, telephone expenses, materials, and supplies as may be necessary to equip, maintain, and furnish the office or offices of the circuit public defender in an orderly and efficient manner. The provisions of an office, utilities, telephone expenses, materials, and supplies shall be subject to the budget procedures required by Article 1 of Chapter 81 of Title 36.
A circuit public defender office may contract with and may accept funds and grants from any public or private source.
(a) The council may permit a judicial circuit composed of a single county to continue in effect an alternative delivery system to the one set forth in this article if:
(1) The delivery system:
(A) Has a full-time director and staff and had been fully operational for at least two years on July 1, 2003; or
(B) Is administered by the county administrative office of the courts or the office of the court administrator of the superior court and had been fully operational for at least two years on July 1, 2003;
(2) The council, by majority vote of the entire council, determines that the delivery system meets or exceeds its policies as the council adopts;
(3) The governing authority of the county comprising the judicial circuit enacts a resolution expressing its desire to continue its delivery system and transmits a copy of such resolution to the council not later than September 30, 2004; and
(4) The governing authority of the county comprising the judicial circuit enacts a resolution agreeing to fully fund its delivery system.
(b) A judicial circuit composed of a single county may request an alternative delivery system only one time; provided, however, that if such judicial circuit's request for an alternative delivery system was disapproved on or before December 31, 2004, such judicial circuit may make one further request on or before September 1, 2005. The council shall allow such judicial circuit to have a hearing on such judicial circuit's request.
(c) The council shall make a determination with regard to continuation of an alternative delivery system not later than December 1, 2005, and if the council determines that such judicial circuit's alternative delivery system does not meet the requirements as established by the council, the council shall notify such judicial circuit of its deficiencies in writing and shall allow such judicial circuit an opportunity to cure such deficiencies. The council shall make a final determination with regard to continuation of an alternative delivery system on or before December 31, 2005. Initial and subsequent approvals of alternative delivery systems shall be by a majority vote of the entire council.
(d) Any circuit whose alternative delivery system is disapproved at any time shall be governed by the provisions of this article other than this Code section.
(e) In the event an alternative delivery system is approved, the council shall annually review the operation of such system and determine whether such system is meeting the requirements as established by the council and is eligible to continue operating as an approved alternative delivery system. In the event the council determines that such system is not meeting the requirements as established by the council, the council shall provide written notice to such system of the deficiencies and shall provide such system an opportunity to cure such deficiencies.
(f) In the event an alternative delivery system is approved, it shall keep and maintain appropriate records, which shall include the number of persons represented; the offenses charged; the outcome of each case; the expenditures made in providing services; and any other information requested by the council.
(g) In the event the council disapproves an alternative delivery system either in its initial application or annual review, such system may appeal such decision to the council under such rules and procedures as shall be prescribed by the council.
(h) An approved alternative delivery system shall be paid by the council, from funds available to the council, in an amount equal to the amount that would have been allocated to the judicial circuit for the minimum salary of the circuit public defender, the assistant circuit public defenders, the investigator, and the administrative staff, exclusive of benefits, if the judicial circuit was not operating an alternative delivery system.
This article shall become effective on January 1, 2005; provided, however, that the council and the circuit public defender selection panels shall be authorized to take administrative actions as may be necessary or appropriate to prepare for and phase-in full implementation of this article on or after December 31, 2003.
As used in this article, the term:
(1) “Circuit public defender” means any circuit public defender of this state or assistants of such officer.
(2) “Criminal proceeding” means any investigation, trial, juvenile proceeding, adjudicatory hearing, or other legal proceeding by which a person's liability for a crime is investigated or determined, commencing with the investigation and including the final disposition of the case.
(3) “Law school” means a law school within or outside this state which is approved by the American Bar Association or which is authorized to operate under Code Section 20-3-250.8.
(4) “Staff instructor” means a full-time professional staff instructor of a law school in this state who has been admitted to the bar of another state but who has not yet been admitted to the bar of this state.
(5) “Third-year law student” means a student regularly enrolled and in good standing in a law school within or outside this state who has satisfactorily completed at least two-thirds of the requirements for the first professional degree in law (J.D. or its equivalent) in not less than four semesters or six quarters of residence.
An authorized third-year law student or staff instructor, when under the supervision of a circuit public defender, may assist in criminal proceedings within this state as if admitted and licensed to practice law in this state except that all pleadings and other entries of record must be signed by a circuit public defender or by his or her duly appointed assistant and that, in the conduct of a trial or other criminal proceeding, a circuit public defender or his or her duly appointed assistant must be physically present.
A third-year law student or staff instructor may be authorized to assist a circuit public defender in such form and manner as the judge of the court may prescribe, taking care that the requirements of this article and the good moral character of the third-year law student or staff instructor are properly certified by the dean of the law school.
As to each third-year law student or staff instructor authorized to assist a circuit public defender, there shall be kept on file in the office of the clerk of the court in the county where such authority is to be exercised the dean's certificate, the student's and instructor's oaths, and the judge's order as contemplated under Code Section 17-12-42. The authority to assist a circuit public defender as allowed under this Code section shall extend for no longer than 18 months. If during this period any change occurs in the status of the student or instructor at the law school in which he or she was enrolled or employed, that is, if the student ceases his or her enrollment, is suspended, or is expelled or if the instructor ceases his or her employment or is released by the school, any such authority shall terminate and be revoked.
Any third-year law student or staff instructor authorized to assist a circuit public defender under this article is not required to possess the qualifications for appointment to the office of circuit public defender or appointment as an assistant circuit public defender as provided in Article 1 of this chapter.
This article shall become effective on January 1, 2005.
As used in this article, the term:
(1) “Paid in part” means payment by a county or municipality for a part of the cost of the provision of indigent defense services pursuant to a contract with a circuit public defender office as set forth in subsection (d) of Code Section 17-12-23. The term shall not include payment by a county or municipality for office space and other supplies as set forth in Code Section 17-12-34.
(2) “Public defender” means an attorney employed by a circuit public defender office or any other attorney who is paid from public funds to represent an indigent person in a criminal case.
(a) When a defendant who is represented by a public defender, who is paid in part or in whole by a county, enters a plea of nolo contendere, first offender, or guilty or is otherwise convicted, the court may impose as a condition of probation repayment of all or a portion of the cost for providing legal representation and other expenses of the defense if the payment does not impose a financial hardship upon the defendant or the defendant's dependent or dependents. The defendant shall make the payment through the community supervision officer to the county.
(b) When a defendant who is represented by a public defender, who is paid in part or in whole by a municipality, enters a plea of nolo contendere, first offender, or guilty or is otherwise convicted, the court may impose as a condition of probation repayment of all or a portion of the cost for providing legal representation and other expenses of the defense if the payment does not impose a financial hardship upon the defendant or the defendant's dependent or dependents. The defendant shall make the payment through the community supervision officer to the municipality.
(c) If a defendant who is represented by a public defender, who is paid for entirely by the state, enters a plea of nolo contendere, first offender, or guilty or is otherwise convicted, the court may impose as a condition of probation repayment of all or a portion of the cost for providing legal representation and other costs of the defense if the payment does not impose a financial hardship upon such defendant or such defendant's dependent or dependents. Such defendant shall make such payment through the community supervision officer to the Georgia Public Defender Council for payment to the general fund of the state treasury.
(d) In determining whether or not a payment imposed under this Code section imposes a financial hardship upon a defendant or defendant's dependent or dependents and in determining the amount of the payment to impose, the court shall consider the factors set forth in Code Section 17-14-10. The public defender may provide the court with an estimate of the cost for providing to the defendant the legal representation and other expenses of the defense. If requested by the defendant, the court shall hold a hearing to determine the amount to be paid.
(e) This Code section shall not apply to a disposition involving a child pursuant to Chapter 11 of Title 15, relating to juvenile proceedings.
(a) A county or municipality may recover payment or reimbursement from a person who has received legal assistance from a public defender paid in part or in whole by the county or municipality:
(1) If the person was not eligible to receive such legal assistance; or
(2) If the person has been ordered to pay for the legal representation and other expenses of the defense pursuant to Code Section 17-12-51 and has not paid for the legal services.
(b) An action shall be brought within four years after the date on which the legal services were received.
(c) In determining the amount of the payment imposed under this Code section, the court shall consider the factors set forth in Code Section 17-14-10. The public defender may provide the court with an estimate of the cost for providing to the defendant the legal representation and other expenses of the defense.
(d) This Code section shall not apply to proceedings involving a child pursuant to Chapter 11 of Title 15, relating to juvenile proceedings.
(a) In order to retain funding as provided in Code Sections 15-21-74 and 15-21A-6, a governing authority shall verify that the applicant qualifies as an indigent person. The governing authority shall establish the methodology for verification and fund such process. The governing authority shall produce auditable information to the council to substantiate its verification process as requested by the council or its director.
(b) The council shall establish policies to determine approval of an indigent person verification system and shall annually provide written notification to the Georgia Superior Court Clerks' Cooperative Authority as to whether or not a governing authority has an approved indigent person verification system.
(c) The governing authority shall advise the circuit public defender, if applicable, or the administrator of the indigent defense system for the jurisdiction of the name of each person who has applied for legal services and provide identifying information for those persons who are financially eligible for services within one business day of such person's application for services.
In addition to rules adopted by the Governor, the following rules shall be observed as a condition precedent to obtaining a requisition by him for the extradition of any fugitive from the justice of this state:
(1) The application for a requisition shall be made to the Governor by a district attorney, prosecuting attorney of a state court, judge of a city or state court, or the mayor of any municipal corporation of this state and must show the full name of the fugitive for whom extradition is asked, the crime charged, the state or territory to which he has fled, the full name of the person suggested to act as agent of this state to receive and convey the fugitive to this state, the agent in no case to be the prosecutor; but the Governor may, in his discretion, appoint some other suitable person as agent of this state to receive and convey the fugitive. The application must also show that the ends of public justice require that the fugitive shall be brought back to this state for trial and that the requisition is not wanted for the purpose of enforcing the collection of a debt or for any private purpose whatever but solely for the purpose of a criminal prosecution as provided by law;
(2) The application shall be accompanied by the affidavit of the prosecutor, if any, stating that the requisition is wanted for the sole purpose of punishing the accused and not in any way to collect a debt or money or to enforce the payment thereof;
(3) If the fugitive has been indicted, two certified copies of the indictment or presentment shall be forwarded to the Governor with the application; and
(4) If no indictment has been preferred and an affidavit is the basis of the requisition, the affidavit shall describe the crime committed, with all the particularity required in an indictment, and two certified copies of the affidavit shall accompany the petition for the requisition.
When an application is made as provided in Code Section 17-13-1 and in accordance with other rules adopted by the Governor, he shall make his requisition for the extradition of the fugitive under the seal of the office of the Governor, according to law.
Before any expenses shall be incurred by any officer or duly authorized agent of the state for bringing back to the county where the crime was committed any fugitive from the justice of this state, who may be beyond the limits of the state, so as to become a charge upon any county where the crime was committed, the incurring of any such expense and the amount thereof shall be first authorized by the county governing authority.
Whenever a fugitive from justice from a foreign country is found within this state, and by the treaty stipulations of the United States the person is to be surrendered to the authorities of the foreign country upon requisition from the proper officers, the Governor, by his warrant, shall cause him to be arrested and delivered over to such authorities.
When the Governor or other officer issues a warrant of arrest, it is the duty of the sheriffs, their deputies, coroners, and constables to execute it when placed in their hands.
This article shall be known and may be cited as the “Uniform Criminal Extradition Act.”
As used in this article, the term:
(1) “Executive authority” includes the Governor and any person performing the functions of governor in a state other than this state.
(2) “Governor” includes any person performing the functions of governor by authority of the laws of this state.
(3) “State,” referring to a state other than this state, includes the District of Columbia and any other state or territory, organized or unorganized, of the United States of America.
Subject to this article, the Constitution of the United States, and any and all acts of Congress enacted in pursuance thereof, it is the duty of the Governor of this state to have arrested and delivered up to the executive authority of any other state any person charged in that state with treason, felony, or other crime, who has fled from justice and is found in this state.
No demand for the extradition of a person charged with a crime in another state shall be recognized by the Governor unless in writing, alleging, except in cases arising under Code Section 17-13-25, that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from the state, and accompanied by a copy of an indictment found, or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon, or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation, or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of the state; and the copy of the indictment, information, affidavit, judgment of conviction, or sentence must be authenticated by the executive authority making the demand.
(a) When it is desired to have returned to this state a person charged in this state with a crime, and such person is imprisoned or is held under criminal proceedings then pending against him in another state, the Governor of this state may agree with the executive authority of the other state for the extradition of the person before the conclusion of the proceedings or of his term of sentence in the other state, upon condition that the person be returned to the other state, at the expense of this state, as soon as the prosecution in this state is terminated.
(b) The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state who is charged in the manner provided in Code Section 17-13-43 with having violated the laws of the state whose executive authority is making the demand, even though such person left the demanding state involuntarily.
The Governor of this state may also surrender, on demand of the executive authority of any other state, any person in this state charged in such other state in the manner provided in Code Section 17-13-23 with committing an act in this state, or in a third state, intentionally resulting in a crime in the state whose executive authority is making the demand and the provisions of this article not otherwise inconsistent shall apply to such cases, even though the accused was not in that state at the time of the commission of the crime and has not fled therefrom.
When a demand for the surrender of a person charged with a crime shall be made upon the Governor of this state by the executive authority of another state, the Governor may call upon the Attorney General or any prosecuting officer in this state to investigate or assist in investigating the demand, to report to him the situation and circumstances of the person so demanded, and to advise whether he ought to be surrendered.
If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest, which shall be sealed with the seal of the office of the Governor and directed to any peace officer or other person whom he may think fit to entrust with the execution thereof. The warrant must substantially recite the facts necessary to the validity of its issuance.
The warrant shall authorize the peace officer or other person to whom directed to arrest the accused at any time and any place where he may be found within the state, to command the aid of all peace officers or other persons in the execution of the warrant, and to deliver the accused, subject to other provisions of this article, to the duly authorized agent of the demanding state.
Every peace officer or other person empowered to make the arrest shall have the same authority, in arresting the accused, to command assistance therein as peace officers have by law in the execution of any criminal process directed to them, with like penalties against those who refuse their assistance.
(a) No person arrested upon a warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender, of the crime with which he is charged, and that he has the right to demand and procure legal counsel. If the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of the court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When the writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the prosecuting officer of the county in which the arrest is made and in which the accused is in custody and to the agent of the demanding state.
(b) Any officer who shall deliver to the agent for extradition of the demanding state a person in his custody under the Governor's warrant, in willful disobedience of subsection (a) of this Code section, shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000.00 or be imprisoned not more than six months, or both.
The district attorney shall answer and defend any habeas corpus action brought under this article, which action contests the issuance, execution, or validity of a Governor's warrant of arrest, unless the Governor shall direct the Attorney General to answer and defend the habeas corpus action.
(a) The officer or persons executing the Governor's warrant of arrest or the agent of the demanding state to whom the prisoner may have been delivered may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of the jail must receive and safely keep the prisoner until the officer or person having charge of him is ready to proceed on his route, such officer or person being chargeable with the expense of keeping.
(b) The officer or agent of a demanding state to whom a prisoner may have been delivered following extradition proceedings in another state, or to whom a prisoner may have been delivered after waiving extradition in such other state, and who is passing through this state with such a prisoner for the purpose of immediately returning the prisoner to the demanding state may, when necessary, confine the prisoner in the jail of any county or city through which he may pass; and the keeper of the jail must receive and safely keep the prisoner until the officer or agent having charge of him is ready to proceed on his route, the officer or agent, however, being chargeable with the expense of keeping; provided, however, that the officer or agent shall produce and show to the keeper of the jail satisfactory written evidence of the fact that he is actually transporting the prisoner to the demanding state after a requisition by the executive authority of the demanding state. The prisoner shall not be entitled to demand a new requisition while in this state.
Whenever any person within this state shall be charged, on the oath of any credible person before any judge or magistrate of this state, with the commission of any crime in any other state and, except in cases arising under Code Section 17-13-25, with having fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or with having broken the terms of his bail, probation, or parole, or whenever complaint shall have been made before any judge or magistrate in this state setting forth, on the affidavit of any credible person in another state, that a crime has been committed in such other state and that the accused has been charged in such state with the commission of the crime and, except in cases arising under Code Section 17-13-25, has fled from justice, or with having been convicted of a crime in that state and having escaped from confinement, or with having broken the terms of his bail, probation, or parole, and is believed to be in this state, the judge or magistrate shall issue a warrant directed to any peace officer, commanding him to apprehend the person named therein, wherever he may be found in this state, and to bring him before the same or any other judge, magistrate, or court who or which may be available in or convenient of access to the place where the arrest may be made, to answer the charge or complaint and affidavit. A certified copy of the sworn charge or complaint and affidavit upon which the warrant is issued shall be attached to the warrant.
The arrest of a person may be lawfully made by any peace officer or private person, without a warrant, upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested, the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath, setting forth the ground for the arrest, as provided in Code Section 17-13-33; and thereafter the answer of the accused shall be heard as if he had been arrested on a warrant.
If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under Code Section 17-13-25, that he has fled from justice, the judge or magistrate must, by a warrant reciting the accusation, commit him to the county jail for such a time, not exceeding 30 days and which time must be specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused gives bail, as provided in Code Section 17-13-36, or until he shall be legally discharged.
Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the state in which it was committed, a judge or magistrate in this state may admit the prisoner to bail by bond, with sufficient sureties, in such sum as he deems proper, conditioned for the prisoner's appearance before the judge or magistrate at a time specified in such bond and for the prisoner's surrender to be arrested upon the warrant of the Governor of this state.
If the accused is not arrested under warrant of the Governor by the expiration of the time specified in the warrant or bond, a judge or magistrate may discharge him or may recommit him for a further period not to exceed 60 days, or a judge or magistrate may again take bail for his appearance and surrender as provided for in Code Section 17-13-36, but within a period not to exceed 60 days after the date of such new bond.
If the prisoner is admitted to bail and fails to appear and surrender himself according to the conditions of his bond, the judge or magistrate, by proper order, shall declare the bond forfeited and order his immediate arrest without warrant if he is within the state. Recovery may be had on the bond in the name of the state as in the case of other bonds given by the accused in criminal proceedings within this state.
The Governor may, in his discretion, surrender, upon demand of the executive authority of another state, any person found in this state, notwithstanding the fact that a criminal prosecution or charges under the laws of this state are pending against the person, that the person has already been convicted in this state and is serving a sentence in any jail or penal institution of this state or of any county or municipality thereof, or that the person is serving a suspended or probationary sentence. The Governor may condition the release of the prisoner to the demanding state upon such terms as he may stipulate, including the condition that the prisoner be returned to this state immediately after trial and before commencing the service of sentence, if any, in the demanding state. In no case shall surrender of the prisoner be construed as a complete relinquishment of jurisdiction by this state, but the prisoner shall forthwith be returned to the custody of this state at the expense of the demanding state immediately after trial in the demanding state or the completion of sentence therein, as the case may be, except where the sentence of death has been executed in the demanding state.
The guilt or innocence of the accused as to the crime of which he is charged may not be inquired into by the Governor or in any proceeding after the demand for extradition accompanied by a charge or crime in legal form as provided for in this article shall have been presented to the Governor, except as it may be involved in identifying the person held as the person charged with the crime.
The Governor may recall his warrant of arrest or may issue another warrant whenever he deems proper.
Whenever the Governor of this state shall demand a person charged with a crime or with escaping from confinement or breaking the terms of his bail, probation, or parole in this state, from the executive authority of any other state, or from the chief justice or an associate justice of the Supreme Court of the District of Columbia authorized to receive such demand under the laws of the United States, he shall issue a warrant under the seal of the office of the Governor to some agent, commanding him to receive the person so charged if delivered to him and convey him to the proper officer of the county in this state in which the offense was committed.
(a) When the return to this state of a person charged with crime in this state is required, the prosecuting attorney shall present to the Governor his written application, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place, and circumstance of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made, and certifying that, in the opinion of the prosecuting attorney, the ends of justice require the arrest and return of the accused to this state for trial and that the proceeding is not instituted to enforce a private claim.
(b) When the return to this state is required of a person who has been convicted of a crime in this state and who has escaped from confinement or broken the terms of his bail, probation, or parole, the prosecuting attorney of the county in which the offense was committed, the State Board of Pardons and Paroles, or the warden of the institution or sheriff of the county from which escape was made shall present to the Governor a written application for a requisition for the return of such person. The application shall state the name of the person, the crime of which he was convicted, the circumstances of his escape from confinement or of the breach of the terms of his bail, probation, or parole and the state in which he is believed to be, including the location of the person therein at the time application is made.
(c) The application shall be verified by affidavit, executed in duplicate, and accompanied by two certified copies of the indictment returned, information and affidavit filed, or of the complaint made to the judge or magistrate, stating the offense with which the accused is charged, or of the judgment of conviction or of the sentence. The prosecuting officer, parole board, warden, or sheriff may also attach such further affidavits and other documents in duplicate as he shall deem proper to be submitted with such application. One copy of the application, with the action of the Governor indicated by endorsement thereon, and one of the certified copies of the indictment, complaint, information and affidavits, or of the judgment of conviction or of the sentence shall be filed in the office of the Governor, to remain of record in that office. The other copies of all papers shall be forwarded with the Governor's requisition.
When the punishment of the crime shall be the confinement of the person in a penal institution, the expenses shall be paid out of the state treasury on the certificate of the Governor and warrant of the state auditor; and in all other cases the expenses shall be paid out of the county treasury in the county wherein the crime is alleged to have been committed. The expenses shall be the fees paid to the officers of the state on whose governor the requisition is made and shall not exceed 8¢ per mile for all necessary travel in returning such prisoner.
A person brought into this state by or after waiver of extradition based on a criminal charge shall not be subject to service of personal process in civil actions arising out of the same facts as the criminal proceedings to answer which he is being or has been returned until he has been convicted in the criminal proceeding; or, if acquitted, until he has had reasonable opportunity to return to the state from which he was extradited.
(a) Any person arrested in this state charged with having committed any crime in another state or alleged to have escaped from confinement, or broken the terms of his bail, probation, or parole, may waive the issuance and service of the warrant provided for in Code Sections 17-13-27 and 17-13-28 and all other procedure incidental to extradition proceedings, by executing or subscribing in the presence of a judge of any court of record within this state a writing which states that he consents to return to the demanding state; provided, however, that before the waiver shall be executed or subscribed by the person it shall be the duty of the judge to inform the person of his rights to the issuance or service of a warrant of extradition and to obtain a writ of habeas corpus as provided in Code Section 17-13-30.
(b) If and when the consent has been duly executed, it shall forthwith be forwarded to the office of the Governor of this state and filed therein. The judge shall direct the officer having the person in custody to deliver forthwith the person to the duly accredited agent or agents of the demanding state and shall deliver or cause to be delivered to the agent or agents a copy of the consent. Nothing in this Code section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state; nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights, or duties of the officers of the demanding state or of this state.
Nothing in this article contained shall be deemed to constitute a waiver by this state of its right, power, or privilege to try a person demanded for extradition by another state for crimes committed within this state or of its right, power, or privilege to regain custody of the person by extradition proceedings or otherwise for the purpose of trial, sentence, or punishment for any crime committed within this state; nor shall any proceedings had under this article result in, or fail to result in, extradition, be deemed a waiver by this state of any of its rights, privileges, or jurisdiction in any way whatsoever.
After a person has been brought back to this state by, or after waiver of, extradition proceedings, he may be tried in this state for other crimes which he may be charged with having committed here as well as that specified in the requisition for his extradition.
This article shall be so interpreted and construed as to effectuate the general purposes to make uniform the laws of those states which enact it.
It is declared to be the policy of this state that restitution to their victims by those found guilty of crimes or adjudicated as having committed delinquent acts is a primary concern of the criminal justice system and the juvenile justice system.
As used in this article, the term:
(1) “Conviction” means an adjudication of guilt of or a plea of guilty or nolo contendere to the commission of an offense against the laws of this state. Such term includes any such conviction or plea, notwithstanding the fact that sentence was imposed pursuant to Article 3 of Chapter 8 of Title 42. Such term also includes the adjudication or plea of a juvenile to the commission of an act which, if committed by an adult, would constitute a crime under the laws of this state.
(2) “Damages” means all special damages which a victim could recover against an offender in a civil action, including a wrongful death action, based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium. Such special damages shall not be limited by any law which may cap economic damages. Special damages may include the reasonably determined costs of transportation to and from court proceedings related to the prosecution of the crime.
(3) “Offender” means any natural person, firm, partnership, association, public or private corporation, or other legal entity that has been sentenced for any crime or any juvenile who has been adjudged delinquent.
(4) “Ordering authority” means:
(A) A court of competent jurisdiction;
(B) The State Board of Pardons and Paroles;
(C) The Department of Corrections;
(D) The Department of Juvenile Justice;
(E) The Department of Community Supervision; or
(F) Any combination thereof, as is required by the context.
(5) “Parent” means a person who is the legal mother as defined in Code Section 15-11-2, the legal father as defined in Code Section 15-11-2, or the legal guardian. Such term shall not include a foster parent.
(6) “Relief” means any parole or other conditional release from incarceration; the awarding of earned time allowances; reduction in security status; or placement in prison rehabilitation programs, including, but not limited to, those in which the offender receives monetary compensation.
(7) “Restitution” means any property, lump sum, or periodic payment ordered to be made by any offender or other person to any victim by any ordering authority. Where the victim is a public corporation or governmental entity or where the offender is a juvenile, restitution may also be in the form of services ordered to be performed by the offender.
(8) “Restitution order” means any order, decree, or judgment of an ordering authority which requires an offender to make restitution.
(9) “Victim” means any:
(A) Natural person or his or her personal representative or, if the victim is deceased, his or her estate; or
(B) Any firm, partnership, association, public or private corporation, or governmental entity
suffering damages caused by an offender's unlawful act; provided, however, that the term “victim” shall not include any person who is concerned in the commission of such unlawful act as defined in Code Section 16-2-20.
(a) Subject to the provisions of Code Section 17-14-10, notwithstanding the provisions contained in Chapter 11 of Title 15, and in addition to any other penalty imposed by law, a judge of any court of competent jurisdiction shall, in sentencing an offender, make a finding as to the amount of restitution due any victim, and order an offender to make full restitution to such victim.
(b) If the offender is placed on probation, including probation imposed pursuant to Chapter 11 of Title 15 or Article 3 of Chapter 8 of Title 42, or sentence is suspended, deferred, or withheld, restitution ordered under this Code section shall be a condition of that probation, sentence, or order.
(c) If the offender is granted relief by the Department of Juvenile Justice, Department of Corrections, or the State Board of Pardons and Paroles, the terms of any court order requiring the offender to make restitution to a victim shall be a condition of such relief in addition to any other terms or conditions which may apply to such relief.
Notwithstanding any provision of Code Section 42-9-45 to the contrary, the State Board of Pardons and Paroles may grant parole prior to the completion of one-third of the sentence if restitution is ordered as a condition of the parole.
(a) It is declared to be the policy of this state to recognize that restitution is consistent with the goal of rehabilitation of delinquent juveniles and to provide restitution in such cases.
(b) Notwithstanding any provision of Chapter 11 of Title 15, the juvenile courts shall order restitution in any case involving delinquent juveniles in the same manner as is authorized by this article for adult offenders.
(c) For purposes of ensuring compliance with the restitution order, the juvenile courts are authorized to retain jurisdiction over a juvenile subject to such restitution order until the juvenile reaches 21 years of age. If the juvenile court retains jurisdiction of such offender as provided in this Code section and the terms of the restitution order are not completed before the offender's twenty-first birthday, the juvenile court shall transfer the restitution order to the superior court.
(d) As an alternative to subsection (c) of this Code section, the juvenile courts are authorized to transfer to the superior courts, and the superior courts are authorized to accept, jurisdiction over enforcement of restitution orders against juveniles who, since entry of the order, have attained 18 years of age.
(e) If the court determines that a juvenile is or will be unable to pay all of the restitution ordered, after notice to the juvenile's parent or parents and an opportunity for the parent or parents to be heard, the court may order the parent or parents to pay any portion of the restitution ordered that is outstanding where the court or a jury finds by clear and convincing evidence that the parent or parents knew or should have known of the juvenile's propensity to commit such acts and the acts are due to the parent's or parents' negligence or reckless disregard for the juvenile's propensity to commit such acts. Upon the eighteenth birthday of the juvenile, the parental obligation to pay restitution shall be terminated.
(f) If the court orders a parent to pay restitution under subsection (e) of this Code section, the court shall take into account the considerations identified in Code Section 17-14-10. If the parent or parents are required to pay restitution under subsection (e) of this Code section, the court shall provide for payment to be made in specified installments and within a specified period of time.
(a) Where an offender has made total or partial restitution to a victim, the ordering authority shall set off any such amounts and reduce the amount payable to the victim.
(b) The ordering authority shall not order restitution to be paid to a victim or victim's estate if the victim or victim's estate has received or is to receive full compensation for that loss from the offender as a result of a civil proceeding.
(c) Any amount paid to a victim or victim's estate under a restitution order shall reduce the amount payable to a victim or a victim's estate by an award from the Georgia Crime Victims Compensation Board made prior to or after a restitution order under this article.
(d) The ordering authority shall order restitution be paid to the Georgia Crime Victims Compensation Board, other governmental entities, or any individuals, partnerships, corporations, associations, or other legal entities acting on behalf of a governmental entity that have compensated the victim or the victim's estate for a loss incurred by the victim to the extent of the compensation paid for that loss. The ordering authority shall also order restitution for the costs of services provided to persons or entities that have provided services to the victim as a result of the crime. Services that are subject to restitution under this subsection include, but are not limited to, shelter, food, clothing, and transportation. However, a restitution order shall require that all restitution to a victim or victim's estate under the restitution order be made before any restitution to any other person or entity under that restitution order is made.
(e) In the event the ordering authority provides for a setoff or priority in terms of payment of restitution, the ordering authority shall state on the record with specificity the reasons for its action.
(a) Any offender may offer a restitution plan to the ordering authority. If a plan is offered, it shall be the duty of the ordering authority to consider the factors stated in Code Section 17-14-10 and to make the plan part of a restitution order if acceptable to the ordering authority.
(b) If the parties have not agreed on the amount of restitution prior to sentencing, the ordering authority shall set a date for a hearing to determine restitution. Any dispute as to the proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the state. The burden of demonstrating the financial resources of the offender or person being ordered to pay restitution and the financial needs of his or her dependents shall be on the offender or person being ordered to pay restitution. The burden of demonstrating such other matters as the ordering authority deems appropriate shall be upon the party designated by the ordering authority as justice requires.
(c) If the ordering authority finds that more than one offender has contributed to the loss of a victim, the court may make each offender liable for payment of the full amount of restitution or may apportion liability among the offenders to reflect the level of contribution to the victim's loss and economic circumstances of each offender.
(d) If the ordering authority finds that more than one victim has sustained a loss requiring restitution by an offender, the court may provide for a different payment schedule for each victim based on the type and amount of each victim's loss and accounting for the economic circumstances of each victim. In any case in which the state or any of its political subdivisions is a victim and thus is due restitution, the ordering authority shall ensure that any other victim receives full restitution before the state or a political subdivision receives restitution.
(e) A victim may waive his or her right to obtain restitution pursuant to this article. Any such waiver shall be made in writing and filed with the court or ordering authority having jurisdiction over the criminal case. Such waiver shall not affect any other rights or remedies that the victim may have against the offender under the laws of this state or the United States or any of the several states.
(a) In any case in which a court sentences an offender to pay restitution and a fine, if the court permits the offender to pay such restitution and fine in other than a lump sum, the clerk of any superior court of this state, community supervision officer, county or Department of Juvenile Justice juvenile probation officer, probation officer serving pursuant to Article 6 of Chapter 8 of Title 42, or other official who receives such partial payments shall apply not less than one-half of each payment to the restitution before paying any portion of such fine or any forfeitures, costs, fees, or surcharges provided for by law to any agency, department, commission, committee, authority, board, or bureau of state or local government.
(b) The clerk of any court of this state, community supervision officer, county or Department of Juvenile Justice juvenile probation officer, probation officer serving pursuant to Article 6 of Chapter 8 of Title 42, or other official who receives partial payments for restitution shall pay the restitution amount to the victim as provided in the restitution order not later than the last day of each month, provided that the amount exceeds $100.00. If the amount does not exceed $100.00, the clerk of any court of this state, community supervision officer, county or Department of Juvenile Justice juvenile probation officer, probation officer serving pursuant to Article 6 of Chapter 8 of Title 42, or other official may allow the amount of restitution to accumulate until such time as it exceeds $100.00 or until the end of the next calendar quarter, whichever occurs first.
The amount of restitution ordered shall not exceed the victim's damages.
(a) In determining the nature and amount of restitution, the ordering authority shall consider:
(1) The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled;
(2) The earnings and other income of the offender or person ordered to pay restitution;
(3) Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents;
(4) The amount of damages;
(5) The goal of restitution to the victim and the goal of rehabilitation of the offender;
(6) Any restitution previously made;
(7) The period of time during which the restitution order will be in effect; and
(8) Other factors which the ordering authority deems to be appropriate.
(b) If, subsequent to restitution being ordered pursuant to this article, a victim is convicted of a crime for which restitution is ordered, the ordering authority shall consider the previously ordered restitution as part of the financial resources of such victim.
An order for restitution shall not bar any civil action against the offender. However, any payments made by an offender to a victim under an order for restitution may be a setoff against any judgment awarded to the victim in a civil action based on the same facts for which restitution was ordered. The fact of restitution or a restitution order under this article shall not be placed before the jury on the issue of liability. If the amount of restitution made is in dispute and liability is established, the court shall order further appropriate proceedings to determine the amount of setoff.
The ordering authority shall retain jurisdiction to modify a restitution order at any time before the expiration of the relief ordered.
(a) A restitution order shall be enforceable as is a civil judgment by execution as provided in Code Section 17-10-20.
(b) If an offender or other person ordered to pay restitution willfully refuses to comply with a restitution order, the order, in the discretion of the court, may be enforced by attachment for contempt, upon the application of the prosecuting attorney or the victim.
(c) Failure to comply with a restitution order may, in the discretion of the ordering authority, be grounds to revoke or cancel the relief at any time the restitution order is in effect. Where the relief is earned time allowances, the Department of Corrections may suspend the offender from earning earned time allowances for a specified period of time.
(a) Payments pursuant to an order for restitution shall be made to the clerk of the court or to any other person, for the benefit of the victim or victims, as the ordering authority shall order.
(b) In each case in which payment of restitution is ordered as a condition of probation or parole, the ordering authority may require any employed offender to execute a wage assignment to pay the restitution.
(c) Until such time as the restitution has been paid or the sentence has been completed, the clerk of court or the community supervision officer, county or Department of Juvenile Justice juvenile probation officer, or probation officer serving pursuant to Article 6 of Chapter 8 of Title 42 assigned to the case, whoever is responsible for collecting restitution, shall review the case not less frequently than twice yearly to ensure that restitution is being paid as ordered. If the restitution was ordered to be made within a specific period of time, the case shall be reviewed at the end of the specific period of time to determine if the restitution has been paid in full. The final review shall be conducted before the sentence or probationary or parole period expires. If it is determined at any review that restitution is not being paid as ordered, a written report of the violation shall be filed with the court on a form prescribed by the Council of Superior Court Clerks of Georgia.
(d) If the ordering authority permits the offender to pay restitution in other than a lump sum, the ordering authority may require the offender to pay interest on the amount of restitution due the victim or the victim's estate. Such interest shall be set at the same rate as is provided by Code Section 7-4-12 for judgments.
(a) Nothing in this article shall authorize peonage; and this article shall be construed and diligently administered to prevent peonage.
(b) No offender shall be denied any benefit, relief, or privilege to which he or she might otherwise be entitled or eligible solely because he or she is financially unable and cannot become financially able to make restitution.
If an offender who is ordered to pay restitution under this article is remanded to the jurisdiction of the Department of Corrections or the Department of Juvenile Justice, the court shall transmit a copy of the restitution order to such department and to the Department of Community Supervision when the order is issued.
(a) The state or the victim of a crime may institute an action against an offender pursuant to Article 4 of Chapter 2 of Title 18, the “Uniform Voidable Transactions Act,” to set aside a transfer of real, personal, or other property made voluntarily by the offender on or after the date of the crime committed by the offender against the victim with the intent to:
(1) Conceal the crime or the fruits of the crime;
(2) Hinder, delay, or defraud any victim; or
(3) Avoid the payment of restitution.
(b) Any such action shall be filed within four years of the date the crime was committed.
If a person or entity entitled to restitution cannot be located or refuses to claim such restitution within two years after the date on which he or she could have claimed such restitution, the restitution paid to such person or entity shall be deposited in the Crime Victims Emergency Fund created pursuant to Chapter 15 of Title 17 or its successor fund. However, a person or entity entitled to such restitution may claim such restitution any time within five years of the date on which he or she could have claimed such restitution by applying in writing to Georgia Crime Victims Compensation Board. Upon receipt of such application and verification that the person making the claim is in fact entitled to such restitution, the Georgia Crime Victims Compensation Board shall pay such restitution to the person or entity.
This article shall not be construed to limit or abrogate any power of any court, agency, or board to place other conditions, limits, terms, rules, or regulations on any relief in the nature of suspension of sentence, probation, parole, pardon, or restoration of rights.
As used in this article, the term:
(1) “Board” means the Board of Corrections.
(2) “Convicted person” includes a person found not guilty by reason of insanity.
(a)(1) Every person, firm, corporation, partnership, association, or other legal entity contracting with any person or with the representative or assignee of any person who has been accused or convicted of a crime in this state with respect to the reenactment of the crime by way of a movie, book, magazine article, tape recording, phonograph record, radio or television presentation, or live entertainment of any kind or with respect to the expression of the accused or convicted person's thoughts, feelings, opinions, or emotions regarding the crime shall submit a copy of the contract to the board and shall pay over to the board any moneys which would otherwise, by the terms of the contract, be owing to the accused or convicted person or to his representatives.
(2) The board shall deposit such moneys in an escrow account for the benefit of and payable to any victim or the legal representative of any victim of crimes committed by the accused or convicted person.
(3) Payments may be made pursuant to paragraph (2) of this subsection only if the accused person is eventually convicted or enters a plea of guilty of the crime and if the victim, within five years of the date of the establishment of the escrow account, brings a civil action in a court of competent jurisdiction and recovers a money judgment for damages against the convicted or accused person or his representatives.
(4) It shall be the duty of the victim, the victim's attorney, or the victim's representative to notify the board within 30 days of the filing of any claim under this article.
(b) At least once every six months for five years from the date it receives such moneys, the board shall cause to have published a legal notice in newspapers of general circulation in the county in which the crime was committed and in counties contiguous to such county, advising victims of the crime that escrow moneys are available to satisfy money judgments pursuant to this Code section.
(c) Upon dismissal of charges or acquittal of any accused person, the board shall immediately pay over to the accused person the moneys in the escrow account established on behalf of the accused person.
(d) Upon a showing by any convicted person that five years have elapsed from the establishment of the escrow account and that no actions are pending against the convicted person pursuant to this Code section, the board shall immediately pay over any moneys in the escrow account to the person or his legal representatives.
(e) Whenever it is found that a person accused of a crime is unfit to proceed to trial as a result of insanity because the person lacks capacity to understand the proceedings against him or to assist in his own defense, the board shall bring an action of interpleader to determine the disposition of the escrow account.
(f) Any excess which remains in the escrow account or is deposited into the account after all money judgments have been satisfied shall be paid over into the state treasury as compensation for the establishment, administration, and execution of this article.
(g) The board shall make payments from the escrow account to any person accused or convicted of crime, upon the order of a court of competent jurisdiction, after a showing by the person that the moneys shall be used for the exclusive purpose of retaining legal representation at any stage of the proceedings against the person, including the appeals process.
(h) The board shall disburse payments from the escrow account on a pro rata basis of all claims filed, according to the amount of money in the escrow account as compared to the amount of each claim. The sums are not to be disbursed until all pending claims have been settled or reduced to judgment.
(i) Any action taken by a person who is accused or convicted of a crime or who enters a plea of guilty, whether by way of execution of a power of attorney, creation of corporate entities, or otherwise, to defeat the purpose of this Code section shall be null and void as against the public policy of this state.
(a) It shall be unlawful for any person, firm, corporation, partnership, association, or other legal entity to fail to comply with this article.
(b) Any person, firm, corporation, partnership, association, or other legal entity violating this article shall be guilty of a misdemeanor.
(c) Each day that a person, firm, corporation, partnership, association, or other legal entity continues in violation of this article shall constitute a separate offense.
The General Assembly recognizes that many innocent persons suffer personal physical injury, serious mental or emotional trauma, severe financial hardship, or death as a result of criminal acts or attempted criminal acts. The General Assembly finds and determines that there is a need for assistance for such victims of crimes. Accordingly, it is the General Assembly's intent that under certain circumstances, aid, care, and assistance be provided by the state for such victims of crimes.
As used in this chapter, the term:
(1) “Board” means the Criminal Justice Coordinating Council.
(2) “Claimant” means any person filing a claim pursuant to this chapter.
(3) “Crime” means:
(A) An act which is committed in this state; in a state which does not have a victims' compensation program, if the claimant is a resident of this state; or in a state which has compensated the claimant in an amount less than the claimant would be entitled to pursuant to this chapter, if the claimant is a resident of this state, and which constitutes:
(i) Hit and run in violation of Code Section 40-6-270;
(ii) Homicide by vehicle in violation of Code Section 40-6-393;
(iii) Serious injury by vehicle in violation of Code Section 40-6-394;
(iv) A violation of Code Section 16-5-46;
(v) A violation of Chapter 6 of Title 16;
(vi) A violation of Part 2 of Article 3 of Chapter 12 of Title 16;
(vii) A violation of Code Section 16-5-70;
(viii) Aggravated assault with the intent to rape in violation of Code Section 16-5-21;
(ix) An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or
(x) Any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense;
(B) An act which constitutes international terrorism as defined in 18 U.S.C. Section 2331 against a resident of this state when such resident was outside the territorial boundaries of the United States when such act was committed; or
(C) An act of mass violence involving a resident of this state when such resident was outside the territorial boundaries of the United States when such act was committed.
(4) “Direct service provider” means a public or nonprofit entity which provides aid, care, and assistance.
(5) “Director” means the director of the Criminal Justice Coordinating Council.
(6) “Forensic medical examination” means an examination provided to a person pursuant to subsection (c) of Code Section 16-6-1 or subsection (c) of Code Section 16-6-2 by trained medical personnel in order to gather evidence. Such examination shall include, but shall not be limited to:
(A) An examination for physical trauma;
(B) A determination as to the nature and extent of the physical trauma;
(C) A patient interview;
(D) Collection and evaluation of the evidence collected; and
(E) Any additional testing deemed necessary by the examiner in order to collect evidence and provide treatment.
(7) “Fund” means the Georgia Crime Victims Emergency Fund.
(8) “Investigator” means an investigator of the board.
(9) “Serious mental or emotional trauma” means a nonphysical injury which has been documented by a licensed mental health professional and which meets the specifications promulgated by the board's rules and regulations relating to this type of trauma.
(a) There is created the Georgia Crime Victims Compensation Board. The Criminal Justice Coordinating Council created under Chapter 6A of Title 35 shall serve as the Georgia Crime Victims Compensation Board.
(b) The Governor shall appoint the director of the Criminal Justice Coordinating Council to carry out the provisions of this chapter.
(a) The board shall have the following powers and duties:
(1) To promulgate suitable rules and regulations to carry out the provisions and purposes of this chapter;
(2) To request from the Attorney General, the Department of Public Safety, the Georgia Bureau of Investigation, district attorneys, solicitors-general, judges, county and municipal law enforcement agencies, and any other agency or department such assistance and data as will enable the board to determine the needs state wide for victim compensation and whether, and the extent to which, a claimant qualifies for an award. Any person, agency, or department listed in this paragraph is authorized to provide the board with the information requested upon receipt of a request from the board. Any provision of law providing for confidentiality of records shall not apply to a request of the board pursuant to this Code section; provided, however, that the board shall preserve the confidentiality of any such records received;
(3) To hear and determine all appeals of denied claims for awards filed with the board pursuant to this chapter and to reinvestigate or reopen cases as the board deems necessary, including circumstances when it appears a claim may be time barred;
(4) To apply for funds from, and to submit all necessary forms to, any federal agency participating in a cooperative program to compensate victims of crimes and to receive and administer federal funds for the purposes of this chapter;
(5) To render awards to victims of crimes or to those other persons entitled to receive awards in the manner authorized by this chapter. Victim compensation payments may be made directly to direct service providers who are not the recipients of local, state, federal, or private grant funds awarded for purposes of providing direct services to victims of crimes. A victim or claimant may be paid directly in the case of lost wages, loss of support, and instances where the victim or claimant has paid the direct service provider and is filing for reimbursement. In all cases where the victim has incurred out-of-pocket expenses, such as lost wages or loss of support, or in cases where the victim or claimant has paid the direct service provider directly and is filing for reimbursement, the victim or claimant shall be paid first before any third party;
(6) To carry out programs designed to inform the public of the purposes of this chapter; and
(7) To render each year to the Governor and to the General Assembly a written report of its activities pursuant to this chapter.
(b) The board shall assist applicants with their claims for compensation through educational programs and administrative assistance.
(a) A claim may be filed by a person eligible to receive an award, as provided in Code Section 17-15-7, or, if such person is a minor, by his or her parent or guardian. In any case in which the person entitled to make a claim is mentally incompetent, the claim may be filed on his or her behalf by his or her guardian. In any case in which the person entitled to make a claim is deceased, the claim may be filed on his or her behalf by an individual authorized to administer his or her estate.
(b)(1) A claim shall be filed by a victim not later than three years after the occurrence of the crime upon which such claim is based or not later than three years after the death of the victim; provided, however, that if such victim was a minor at the time of the commission of the crime, he or she shall have until three years after his or her eighteenth birthday to file such claim; and provided, further, that upon good cause shown, the board may extend the time for filing a claim.
(2) Claims shall be filed in the office of the board in person or by mail.
(c) The claim shall be verified and shall contain the following:
(1) A description of the date, nature, and circumstances of the crime;
(2) A complete financial statement, including, but not limited to, the cost of medical care or burial expense, the loss of wages or support the claimant has incurred or will incur, any other emergency expenses incurred by the claimant, and the extent to which the claimant has been or may be indemnified for these expenses from any source;
(3) When appropriate, a statement indicating the extent of a victim's disability resulting from the injury or serious mental or emotional trauma incurred;
(4) An authorization permitting the board to verify the contents of the application; and
(5) Such other information as the board may require.
(a) A claim, once accepted for filing and completed, shall be assigned to an investigator. The investigator shall examine the papers filed in support of the claim and cause an investigation to be conducted into the validity of the claim. The investigation shall include, but shall not be limited to, an examination of law enforcement, court, and official records and reports concerning the crime and an examination of medical, psychiatric, counseling, financial, and hospital reports relating to the injury, serious mental or emotional trauma, or loss upon which the claim is based. All claims arising from the death of an individual as a direct result of a crime shall be considered together by a single investigator.
(b) Claims shall be investigated and determined regardless of whether a perpetrator has been apprehended, prosecuted, or convicted of any crime based upon the same incident or whether the alleged perpetrator has been acquitted or found not guilty of the crime in question.
(c) The investigator conducting the investigation shall file with the director a written report setting forth a recommendation and the investigator's reason therefor. The director shall render a decision and furnish the claimant with a copy of the report if so requested. In cases where an investigative report is provided, information deemed confidential in nature shall be excluded.
(d) The claimant may, within 30 days after receipt of the report of the decision of the director, make an application in writing to the director for review of the decision.
(e) Upon receipt of an application for review pursuant to subsection (d) of this Code section, the director shall forward all relevant documents and information to the board. The board shall review the records and shall affirm or modify the decision of the director. If considered necessary by the board or if requested by the claimant, the board shall order a hearing prior to rendering a decision. At the hearing, any relevant evidence not legally privileged shall be admissible. The board shall render a decision within 90 days after completion of the investigation. If the director receives no application for review pursuant to subsection (d) of this Code section, the director's decision shall become final.
(f) The board, for purposes of this chapter, may subpoena witnesses, administer or cause to be administered oaths, and examine such parts of the books and records of the parties to proceedings as relate to questions in dispute.
(g) The director shall, within ten days after receipt of the board's final decision, make a report to the claimant, including a copy of the final decision and the reasons why the decision was made.
(a) Except as otherwise provided in this Code section, the following persons shall be eligible for awards pursuant to this chapter:
(1) A person who:
(A) Is injured physically, who dies, or who suffers financial hardship as a result of being injured physically as a direct result of a crime;
(B) Suffers a serious mental or emotional trauma as a result of being threatened with a crime which could result in physical injury or death;
(C) Suffers a serious mental or emotional trauma as a result of being present during the commission of a crime;
(D) Suffers a serious mental or emotional trauma as a result of being trafficked for labor servitude or sexual servitude as defined in Code Section 16-5-46; or
(E) Is a dependent spouse, parent, step-parent, child, or step-child of a person who is injured physically, who dies, or who suffers financial hardship as a result of being injured physically as a direct result of a crime;
(2) For purposes of an award under subsection (k) of Code Section 17-15-8, any member of the immediate family of a victim of homicide by vehicle caused by a violation of Code Section 40-6-391;
(3) Any person who goes to the aid of another and suffers physical injury, serious mental or emotional trauma, or death as a direct result of acting, not recklessly, to prevent the commission of a crime, to apprehend lawfully a person reasonably suspected of having committed a crime, or to aid the victim of a crime or any person who is injured, traumatized, or killed while aiding or attempting to aid a law enforcement officer in the prevention of a crime or apprehension of a criminal at the officer's request;
(4) Any person who is a victim of family violence as defined by Code Section 19-13-1 and anyone who is a victim as a result of a violation of Code Section 40-6-391; or
(5) Any person who is not a direct service provider and who assumes the cost of an eligible expense of a victim regardless of such person's relationship to the victim or whether such person is a dependent of the victim.
(b)(1) Victims may be legal residents or nonresidents of this state. A surviving spouse, parent, step-parent, child, or step-child who is legally dependent for his or her principal support upon a deceased victim shall be entitled to file a claim under this chapter if the deceased victim would have been so entitled, regardless of the residence or nationality of the surviving spouse, parent, step-parent, child, or step-child.
(2) Victims of crimes occurring within this state who are subject to federal jurisdiction shall be compensated on the same basis as resident victims of crimes.
(c) No award of any kind shall be made under this chapter to a victim injured while confined in any federal, state, county, or municipal jail, prison, or other correctional facility.
(d) No award of any kind shall be made under this chapter to a victim of a crime which occurred prior to July 1, 1989.
(e) A person who is criminally responsible for the crime upon which a claim is based or is an accomplice of such person shall not be eligible to receive an award with respect to such claim; provided, however, that such ineligibility shall not apply if the person is as defined in subparagraph (a)(1)(D) of this Code section.
(f) There shall be no denial of compensation to a claimant based on that victim's or claimant's familial relationship with the person who is criminally responsible for the crime.
(g) No award of any kind shall be made under this chapter to a victim of a crime for loss of property.
(h) A victim or claimant who has been convicted of a felony involving criminally injurious conduct and who is currently serving a sentence therefor shall not be considered eligible to receive an award under this chapter. For purposes of this subsection, “criminally injurious conduct” means a crime which occurs or is attempted in this state that results in physical injury, serious mental or emotional trauma, or death to a victim, which act is punishable by fine, imprisonment, or death. Such term shall not include acts arising out of the operation of motor vehicles, boats, or aircraft unless the acts were committed with the intent to inflict injury, trauma, or death or unless the acts committed were in violation of Code Section 40-6-391. For the purposes of this subsection, a person shall be deemed to have committed criminally injurious conduct notwithstanding that by reason of age, insanity, drunkenness, or other reason, he or she was legally incapable of committing a crime.
(a) No award may be made unless the board or director finds that:
(1) A crime was committed;
(2) The crime directly resulted in the victim's physical injury, serious mental or emotional trauma, or financial hardship as a result of the victim's physical injury, serious mental or emotional trauma, or the victim's death;
(3) Police records, records of an investigating agency, or records created pursuant to a mandatory reporting requirement show that the crime was promptly reported to the proper authorities. In no case may an award be made where the police records, records of an investigating agency, or records created pursuant to a mandatory reporting requirement show that such report was made more than 72 hours after the occurrence of such crime unless the board, for good cause shown, finds the delay to have been justified and provided, further, that good cause shall be presumed if the person is eligible for awards pursuant to this chapter corresponding to subparagraph (a)(1)(D) of Code Section 17-15-7; and
(4) The applicant has pursued restitution rights against any person who committed the crime unless the board or director determines that such action would not be feasible.
(a.1) The board, upon finding that any claimant or award recipient has not fully cooperated with all law enforcement agencies, may deny, reduce, or withdraw any award.
(b) Any award made pursuant to this chapter shall be in an amount not exceeding actual expenses, including indebtedness reasonably incurred for medical expenses, loss of wages, funeral expenses, mental health counseling, or support for dependents of a deceased victim necessary as a direct result of the injury or hardship upon which the claim is based.
(b.1)(1) Payments made by the board to medical service providers for compensation for medical services shall be made in accordance with the list of usual, customary, and reasonable charges for medical services published by the State Board of Workers' Compensation as provided for in Code Section 34-9-205 unless an investigation of the charges by the board determines that there is a reasonable health care justification for the deviation from such list of usual, customary, and reasonable charges.
(2) Payments made to and accepted by a medical provider shall be considered payment in full for the charges with respect to the board, victim, and claimant.
(c)(1) Notwithstanding any other provisions of this chapter, no award made under the provisions of this chapter shall exceed $1,000.00 in the aggregate; provided, however, that with respect to any claim filed with the board as a result of a crime occurring on or after July 1, 1994, no award made under the provisions of this chapter payable to a claimant sustaining economic loss because of injury to or death of a victim shall exceed $5,000.00 in the aggregate; provided, further, that with respect to any claim filed with the board as a result of a crime occurring on or after July 1, 1995, no award made under the provisions of this chapter payable to a claimant sustaining economic loss because of injury to or death of a victim shall exceed $10,000.00 in the aggregate; provided, further, that with respect to any claim filed with the board as a result of a crime occurring on or after July 1, 2002, no award made under the provisions of this chapter payable to a claimant sustaining economic loss because of injury to or death of a victim shall exceed $25,000.00 in the aggregate; provided, further, that with respect to any claim filed with the board for serious mental or emotional trauma, no award shall be made for a crime occurring before July 1, 2009.
(2) No award under this chapter for the following losses shall exceed the maximum amount authorized:
| | Category | Maximum Award | | --- | --- | --- | | | Lost wages․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․$ 10,000.00 | | | Funeral expenses․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․6,000.00 | | | Financial hardship or loss of support․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․10,000.00 | | | Medical․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․15,000.00 | | | Counseling․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․3,000.00 | | | Crime scene sanitization․․․․․․․․․․․․․․․․․․․․․․․ | ․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․․1,500.00 |
(d) In determining the amount of an award, the director and board shall determine whether because of his or her conduct the victim contributed to the infliction of his or her injury, serious mental or emotional trauma, or financial hardship, and the director and board may reduce the amount of the award or reject the claim altogether in accordance with such determination.
(e) The director and board may reject an application for an award when the claimant has failed to cooperate in the verification of the information contained in the application.
(f) Any award made pursuant to this chapter may be reduced by or set off by the amount of any payments received or to be received as a result of the injury, serious mental or emotional trauma:
(1) From or on behalf of the person who committed the crime; and
(2) From any other private or public source, including an award of workers' compensation pursuant to the laws of this state,
provided that private sources shall not include contributions received from family members or persons or private organizations making charitable donations to a claimant.
(g) No award made pursuant to this chapter shall be subject to garnishment, execution, or attachment other than for expenses resulting from the injury or serious mental or emotional trauma which is the basis for the claim.
(h) An award made pursuant to this chapter shall not constitute a payment which is treated as ordinary income under either the provisions of Chapter 7 of Title 48 or, to the extent lawful, under the United States Internal Revenue Code.
(i) Notwithstanding any other provisions of this chapter to the contrary, no awards from state funds shall be paid to a claimant for a crime which occurred prior to July 1, 1989.
(j) In any case where a crime results in death, the spouse, parents, step-parents, children, step-children, siblings, or step-siblings of such deceased victim may be considered eligible for an award for the cost of psychological counseling which is deemed necessary as a direct result of said criminal incident. The maximum award for said counseling expenses shall not exceed $3,000.00 for each claimant identified in this subsection.
(k)(1) In addition to any other award authorized by this Code section, in any case where a deceased was a victim of homicide by vehicle caused by a violation of Code Section 40-6-391 on any road which is part of the state highway system, upon request of the next of kin of the deceased, an award of compensation in the form of a memorial sign erected by the Department of Transportation as provided by this subsection shall be paid to an eligible claimant.
(2) The provisions of paragraph (4) of subsection (a) of this Code section shall not apply for purposes of eligibility for awards made under this subsection, and the value of any award paid to a claimant under this subsection shall not apply toward or be subject to any limitation on award amounts paid to any claimant under other provisions of this Code section.
(3) The Department of Transportation, upon receiving payment for the cost of materials and labor from the board, shall upon request of the next of kin of the deceased erect a sign memorializing the deceased on the right of way of such public highway at the location of the accident or as near thereto as safely and reasonably possible and shall maintain such sign for a period of five years from the date the sign is erected unless its earlier removal is requested in writing by the next of kin. Such sign shall be 24 inches wide by 36 inches high and depict a map of the State of Georgia, with a dark blue background and a black outline of the state boundaries. A border of white stars shall be placed on the inside of the state boundaries, and the sign shall contain the words “In Memory of (name), DUI Victim (date of accident).”
(4) In the event of multiple such claims arising out of a single motor vehicle accident, the names of all deceased victims for whom such claims are made and for whom a request has been made by the next of kin of the deceased may be placed on one such sign or, if necessary, on one such sign and a plaque beneath of the same color as the sign. In the event of multiple claims relating to the same deceased victim, no more than one such sign shall be paid for and erected for such victim.
(a) There is created a fund to be known as the Georgia Crime Victims Emergency Fund. The custodian of the fund shall be the board. The director shall administer the fund and may invest the resources of the fund in the same manner and fashion that an insurer authorized to issue contracts of life insurance is authorized to invest its resources. The board shall be specifically authorized to contract with any person or organization, public or private, to administer the fund, assume the powers of the director, and carry out the duties of the board relating to the fund.
(b)(1) The fund shall consist of all moneys received pursuant to Article 7 of Chapter 21 of Title 15 from the assessment of additional penalties in cases involving a violation of Code Section 40-6-391 or a violation of an ordinance of a political subdivision of this state which has adopted by reference Code Section 40-6-391 pursuant to Article 14 of Chapter 6 of Title 40.
(2) The funds placed in the fund shall also consist of all moneys appropriated by the General Assembly, if any, for the purpose of compensating claimants under this chapter and money recovered on behalf of the state pursuant to this chapter by subrogation or other action, recovered by court order, received from the federal government, received from additional court costs, received from specific tax proceeds allocated to the fund, received from other assessments or fines, or received from any other public or private source pursuant to this chapter.
(c) All funds appropriated to or otherwise paid into the fund shall be presumptively concluded to have been committed to the purpose for which they have been appropriated or paid and shall not lapse.
(d) The board shall be authorized, subject to the limitations contained in this chapter, to pay the appropriate compensation to the persons eligible for compensation under this chapter from the proceeds of the fund.
(e) After determining that an award should be paid and the method of payment, the board or director, within five days, shall be authorized to draw a warrant or warrants upon the fund to pay the amount of the award from such fund.
Notwithstanding any other provision of this chapter to the contrary, where an award under this chapter has been authorized but there are not sufficient funds in the fund to pay or continue paying the award, then the award or the remaining portion thereof shall not be paid unless and until sufficient funds become available from the fund, and at such time, awards which have not been paid shall begin to be paid in chronological order with the oldest award being paid first. In the event an award was to be paid in installments and some remaining installments have not been paid due to a lack of funds, then when funds due become available, that award shall be paid in full when its appropriate time for payment comes on the chronological list before any other postdated award shall be paid. Any award under this chapter is specifically not a claim against the state if it cannot be paid due to a lack of funds in the fund.
Any person who asserts a false claim under the provisions of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished as for a misdemeanor and shall further forfeit any benefit received and shall reimburse and repay the state for payments received or paid on his or her behalf pursuant to any of the provisions of this chapter.
(a) Acceptance of an award made pursuant to this chapter shall subrogate the state, to the extent of such award, to any right or right of action occurring to the claimant to recover payments on account of losses resulting from the crime with respect to which the award is made. The board may waive subrogation when the claimant presents documentation and the board verifies that judgment, settlement, or other sources have not fully reimbursed the claimant for expenses compensable under this chapter.
(b) Acceptance of an award made pursuant to this chapter based on damages from a crime shall constitute an agreement on the part of the recipient reasonably to pursue any and all civil remedies arising from any right of action against the person or persons responsible for or committing the crime.
(a) Any award or payment of benefits under this chapter shall create a debt due and owing to the state by any person found in a court of competent jurisdiction of this state to have committed an act resulting in compensation being paid pursuant to this chapter.
(b) A court, when placing on probation any person who owes a debt to the state as a consequence of a crime, may set as a condition of probation the payment of the debt or a portion of the debt to the state. The court may also set the schedule or amounts of payments subject to modification based on change of circumstances.
(c) The State Board of Pardons and Paroles shall also have the right to make payment of the debt or a portion of the debt to the state a condition of parole.
(d) When a child is adjudicated for committing a delinquent act in a juvenile court proceeding involving a crime upon which a claim under this chapter can be made, the juvenile court in its discretion may order that the child pay the debt to the state as an adult would have to pay had an adult committed the crime. Any assessments so ordered may be made a condition of probation as provided in Code Section 15-11-601.
(e) Payments authorized or required under this Code section shall be paid into the fund. The board shall coordinate the development of policies and procedures for the State Board of Pardons and Paroles, the Department of Community Supervision, and the Administrative Office of the Courts to assure that restitution programs are administered in an effective manner to increase payments into the fund.
(f) In every case where an individual is serving under active probation supervision and paying a supervision fee, $9.00 per month shall be added to any supervision fee collected by any entity authorized to collect such fees and shall be paid into the fund. This subsection shall apply to probationers supervised by community supervision officers or private probation officers or probation officers pursuant to Article 6 of Chapter 8 of Title 42. The probation supervising entity shall collect and forward the $9.00 fee to the board by the end of each month.
The board shall be authorized to designate and expend not more than 10 percent of the moneys collected and paid into the fund pursuant to paragraph (1) of subsection (b) of Code Section 17-15-9 and Code Section 17-15-13 to provide funding to victim service providers for the purpose of disseminating materials regarding the availability of the compensation program provided in this chapter and public information purposes regarding the compensation program provided in this chapter.
When a forensic medical examination is conducted, the cost of such forensic medical examination shall be paid for by the fund in an amount not to exceed $1,000.00. The fund shall be responsible for payment of such cost notwithstanding whether the person receiving such forensic medical examination has health insurance or any other source of health care coverage.
(a) When a forensic interview is conducted and when funding is available, the cost of such interview for a person who is less than 18 years of age or developmentally disabled may be paid for by the fund in an amount to be determined by the board.
(b) The board shall develop standards, protocols, and guidelines related to reimbursement of forensic interview providers.
(c) The board shall establish an annual limit of:
(1) The amount that may be paid from the fund;
(2) The amount that may be reimbursed for each interview; and
(3) The limit on the number of interviews that will be reimbursable from the fund.
(d) Funding may be used only when:
(1) The results of the forensic interview will be for identification of the interviewee's needs, including social services, personal advocacy, case management, substance abuse treatment, and mental health services;
(2) The forensic interviews are conducted in the context of a multidisciplinary investigation and diagnostic team, or in a specialized setting such as a child advocacy center; and
(3) The interviewer is trained to conduct forensic interviews appropriate to the developmental age and abilities of children, or the developmental, cognitive, and physical or communication disabilities presented by adults.
(a) Subject to available funds, for any sentence vacated pursuant to Code section 17-10-21, any fines and fees paid by the defendant under such sentence shall be returned to the defendant in the amount paid by the defendant.
(b) Payments authorized by subsection (a) of this Code section shall be made from the fund.
(c) The board shall promulgate rules and develop standards, protocols, and guidelines related to the return of fines and fees in coordination with the State Board of Pardons and Paroles, the Department of Community Supervision, the Department of Corrections, and the Administrative Office of the Courts.
(d)(1) Any payment made from the fund under this Code section shall create a debt due and owing to the state by any entity that received a payment of fines and fees that were returned pursuant to this Code section.
(2) If the entity has forwarded any portion of the fines and fees to one or more secondary entities, each such secondary entity shall return the amount forwarded by the forwarding entity to such secondary entity. A valid request from the forwarding entity shall include a copy of the order to vacate, an accounting of the fines and fees paid by the defendant to the forwarding entity, and a statement of the amount forwarded by the forwarding entity to the secondary entity.
(e) Payments authorized or required under paragraph (1) of subsection (d) of this Code section shall be paid into the fund.
The provisions of this chapter are enacted pursuant Article III, Section VI, Paragraph VI(f) of the Constitution and are in addition to those provisions for compensation of innocent victims of other crimes under Chapter 15 of this title.
As used in this chapter, the term “graffiti” means any inscriptions, words, figures, paintings, or other defacements that are written, marked, etched, scratched, sprayed, drawn, painted, or engraved on or otherwise affixed to any surface of real property or improvements thereon without prior authorization of the owner or occupant of the property by means of any aerosol paint container, broad-tipped marker, gum label, paint stick, graffiti stick, etching equipment, brush, or other device capable of scarring or leaving a visible mark on any surface.
The General Assembly finds and declares that:
(1) Criminal street gang activity is a serious and continuing public safety concern;
(2) Criminal trespass and criminal damage to property in the second degree caused by graffiti being placed unlawfully upon private property are crimes frequently associated with criminal street gang activity; and
(3) It is in the public interest, not only in the pursuit of justice but also as a means of combating such criminal street gang activity and of contributing to the general public welfare by improving the esthetics of public views, to compensate as provided in this chapter those private property owners who are the innocent victims of such criminal trespass or criminal damage to property in the second degree by using inmate labor to remove or obliterate graffiti unlawfully placed on private properties when such graffiti is visible from public roads or other public property.
(a) In order to provide a form of compensation by the state to innocent victims of criminal trespass in violation of Code Section 16-7-21 or criminal damage to property in the second degree in violation of Code Section 16-7-23, either of which crime involved the unlawful placement of graffiti upon private property by a person who was not the owner of such property, the Board of Corrections or any political subdivision of this state may authorize the use of labor by inmates from any penal institution or jail under its authority to remove or obliterate such unlawfully placed graffiti when such graffiti is visible from any public road or other public property. Any such authorization and related supervision of inmates shall be a discretionary function within the meaning of paragraph (2) of Code Section 50-21-24 for purposes of sovereign immunity, and the sovereign immunity of neither the state nor any political subdivision thereof is waived for any loss arising out of such authorization or related supervision of inmates. The Board of Corrections shall provide rules and regulations governing such use of labor by inmates from institutions under its jurisdiction.
(b) No graffiti removal program operated by any political subdivision of this state shall charge any fee to any property owner or operator for removal of graffiti from such property.
As used in this chapter, the term:
(1) “Possession, custody, or control of the state or prosecution” means an item which is within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation of the case being prosecuted.
(2) “Statement of a witness” means:
(A) A written or recorded statement, or copies thereof, made by the witness that is signed or otherwise adopted or approved by the witness;
(B) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
(C) A summary of the substance of a statement made by a witness contained in a memorandum, report, or other type of written document but does not include notes or summaries made by counsel.
(3) “Witness” does not include the defendant.
(a) This article shall apply to all criminal cases in which at least one felony offense is charged in the event that at or prior to arraignment, or at such time as the court permits, the defendant provides written notice to the prosecuting attorney that such defendant elects to have this article apply to the defendant's case. When one defendant in a multidefendant case demands discovery under this article, the provisions of this article shall apply to all defendants in the case, unless a severance is granted.
(b) Except as provided in subsection (c) of this Code section, this article shall not apply to juvenile court proceedings.
(c) This article shall be deemed to have been automatically invoked, without the written notice provided for in subsection (a) of this Code section, when a defendant has sought discovery pursuant to Chapter 11 of Title 9, the “Georgia Civil Practice Act,” pursuant to Part 8 of Article 6 of Chapter 11 of Title 15, or pursuant to the Uniform Rules for the Juvenile Courts of Georgia where such discovery material is the same as the discovery material that may be provided under this article when a written notice is filed pursuant to subsection (a) of this Code section.
(d) Except as provided under Code Section 17-16-8, this article is not intended to authorize discovery or inspection of attorney work product.
(e) This article shall apply also to all criminal cases in which at least one felony offense is charged which was docketed, indicted, or in which an accusation was returned prior to January 1, 1995, if both the prosecuting attorney and the defendant agree in writing that the provisions of this article shall apply to the case.
(f) Except as provided in paragraph (3) of subsection (b) of Code Section 17-16-4, if a defendant has elected to have the provisions of this article apply, the provisions of this article shall also apply to sentencing hearings and the sentencing phase of a death penalty trial.
Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and a list of witnesses that may be supplemented pursuant to the other provisions of this article.
(a)(1) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders, disclose to the defendant and make available for inspection, copying, or photographing any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody, or control of the state or prosecution and that portion of any written record containing the substance of any relevant oral statement made by the defendant, whether before or after arrest, in response to interrogation by any person then known to the defendant to be a law enforcement officer or member of the prosecuting attorney's staff. The prosecuting attorney shall also disclose to the defendant the substance of any other relevant oral statement made by the defendant, before or after arrest, in response to interrogation by any person then known by the defendant to be a law enforcement officer or member of the prosecuting attorney's staff if the state intends to use that statement at trial. The prosecuting attorney shall also disclose to the defendant the substance of any other relevant written or oral statement made by the defendant while in custody, whether or not in response to interrogation. Statements of coconspirators that are attributable to the defendant and arguably admissible against the defendant at trial also shall be disclosed under this Code section. Where the defendant is a corporation, partnership, association, or labor union, the court may grant the defendant, upon its motion, discovery of any similar such statement of any witness who was:
(A) At the time of the statement, so situated as an officer or employee as to have been legally able to bind the defendant in respect to conduct constituting the offense; or
(B) At the time of the offense, personally involved in the alleged conduct constituting the offense and so situated as an officer or employee as to have been legally able to bind the defendant in respect to that alleged conduct in which the witness was involved.
(2) The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, furnish to the defendant a copy of the defendant's Georgia Crime Information Center criminal history, if any, as is within the possession, custody, or control of the state or prosecution. Nothing in this Code section shall affect the provisions of Code Section 17-10-2.
(3)(A) Except as provided in subparagraph (B) of this paragraph, the prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution's case-in-chief or rebuttal at the trial or were obtained from or belong to the defendant. Evidence that is within the possession, custody, or control of the Forensic Sciences Division of the Georgia Bureau of Investigation or other laboratory for the purpose of testing and analysis may be examined, tested, and analyzed at the facility where the evidence is being held pursuant to reasonable rules and regulations adopted by the Forensic Sciences Division of the Georgia Bureau of Investigation or the laboratory where the evidence is being held.
(B) With respect to any books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof which are within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution's case-in-chief or rebuttal at the trial of any violation of Part 2 of Article 3 of Chapter 12 of Title 16, such evidence shall, no later than ten days prior to trial, or as otherwise ordered by the court, be allowed to be inspected by the defendant but shall not be allowed to be copied.
(4) The prosecuting attorney shall, no later than ten days prior to trial, or as otherwise ordered by the court, permit the defendant at a time agreed to by the parties or ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the state intends to introduce in evidence in its case-in-chief or in rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the prosecuting attorney shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than ten days prior to trial. Nothing in this Code section shall require the disclosure of any other material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any victim or witness.
(5) The prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders but in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing.
(b)(1) The defendant within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, shall permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places, which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the defense's case-in-chief or rebuttal at the trial.
(2) The defendant shall within ten days of timely compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, permit the prosecuting attorney at a time agreed to by the parties or as ordered by the court to inspect and copy or photograph a report of any physical or mental examinations and of scientific tests or experiments, including a summary of the basis for the expert opinion rendered in the report, or copies thereof, if the defendant intends to introduce in evidence in the defense's case-in-chief or rebuttal the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than five days prior to trial. Nothing in this Code section shall require the disclosure of any other material, note, or memorandum relating to the psychiatric or psychological treatment or therapy of any defendant or witness.
(3)(A) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all books, papers, documents, photographs, tangible objects, audio and visual tapes, films and recordings, or copies or portions thereof and to inspect and photograph buildings or places which are within the possession, custody, or control of the defendant and which the defendant intends to introduce as evidence in the presentence hearing.
(B) The defendant shall, no later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, serve upon the prosecuting attorney all reports of any physical or mental examinations and scientific tests or experiments, including a summary of the basis for the expert opinions rendered in the reports, or copies thereof, if the defendant intends to introduce in evidence in the presentence hearing the results of the physical or mental examination or scientific test or experiment. If the report is oral or partially oral, the defendant shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions.
(C) The defendant shall, no later than five days before the trial commences, serve upon the prosecuting attorney a list of witnesses that the defendant intends to call as a witness in the presentence hearing. No later than the announcement of the verdict of the jury or if the defendant has waived a jury trial at the time the verdict is published by the court, the defendant shall produce for the opposing party any statement of such witnesses that is in the possession, custody, or control of the defendants or the defendant's counsel that relates to the subject matter of the testimony of such witnesses unless such statement is protected from disclosure by the privilege contained in paragraph (5), (6), (7), or (8) of subsection (a) of Code Section 24-5-501.
(c) If prior to or during trial a party discovers additional evidence or material previously requested or ordered which is subject to discovery or inspection under this article, such party shall promptly notify the other party of the existence of the additional evidence or material and make this additional evidence or material available as provided in this article.
(d) Upon a sufficient showing that a discovery required by this article would create a substantial threat of physical or economic harm to a witness, the court may at any time order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing, in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party's statement shall be sealed and preserved in the records of the court subject to further order of the court and to be made available to the appellate court in the event of an appeal.
(e) Discovery with respect to alibi witnesses shall be as provided for in Code Section 17-16-5.
(a) Upon written demand by the prosecuting attorney within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant's intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.
(b) The prosecuting attorney shall serve upon the defendant within five days of the defendant's written notice but no later than five days before trial, whichever is later, a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the state, upon whom the state intends to rely to rebut the defendant's evidence of alibi unless previously supplied.
(c) If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (a) or (b) of this Code section, the party shall promptly notify the other party of the existence and identity of such additional witness.
(d) Upon a showing that a disclosure required by this Code section would create a substantial threat of physical or economic harm to a witness, the court may grant an exception to any of the requirements of subsections (a) through (c) of this Code section.
(e) If the defendant withdraws the notice of intention to rely upon an alibi defense, the notice and intention to rely upon an alibi defense are not admissible. However the prosecuting attorney may offer any other evidence regarding alibi.
If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. The court may specify the time, place, and manner of making the discovery, inspection, and interview and may prescribe such terms and conditions as are just.
No later than ten days prior to trial or at such time as the court permits, or at the time of any post-indictment pretrial evidentiary hearing other than a bond hearing, the prosecution or the defendant shall produce for the opposing party any statement of any witness that is in the possession, custody, or control of the state or prosecution or in the possession, custody, or control of the defendant or the defendant's counsel that relates to the subject matter concerning the testimony of the witness that the party in possession, custody, or control of the statement intends to call as a witness at trial or at such post-indictment pretrial evidentiary hearing.
(a) The prosecuting attorney, not later than ten days before trial, and the defendant's attorney, within ten days after compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, shall furnish to the opposing counsel as an officer of the court, in confidence, the names, current locations, dates of birth, and telephone numbers of that party's witnesses, unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.
(b) Nothing in this Code section shall be construed to require the prosecuting attorney to furnish the home address, date of birth, or home telephone number of a witness who is a law enforcement officer or a nonsworn employee of a law enforcement agency. Instead, in such cases, the prosecuting attorney shall furnish to the attorney for the accused, or, if pro se, to the accused, the current work location and work phone number of the law enforcement officer or nonsworn employee of a law enforcement agency.
(c) Any formerly employed or retired law enforcement officer or nonsworn employee of a law enforcement agency may use the address and phone number of the last agency where he or she was employed as his or her contact information for purposes of this Code section. Use of this subsection by an officer or employee shall constitute a waiver of any claim by such officer or employee as to any defect of service or notice of hearing if the service or notice was provided to the designated law enforcement agency and shall impose an affirmative obligation on such officer or employee to keep current his or her personal address and phone number information with such agency.
Any party providing documents or statements to another party under this article shall be reimbursed for the actual cost incurred in providing such documents. If the court has determined the defendant to be indigent, the court shall determine the means of reimbursement.
The defendant need not include in materials and information furnished to the prosecuting attorney under this article any material or information which the prosecuting attorney has already furnished to the defendant under this article. The prosecuting attorney need not include in materials and information furnished to the defendant under this article any material or information which that defendant has already furnished to the prosecuting attorney under this article. Either party may call as a witness any person listed on either the prosecuting attorney's or defendant's witness list.
The provisions of this article shall apply only to misdemeanor cases or to felony cases docketed, indicted, or in which an accusation was returned prior to January 1, 1995, if the prosecuting attorney and the defendant do not agree in writing that the provisions of Article 1 of this chapter shall apply.
(a) Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.
(b) Nothing in this Code section shall be construed to require any person charged with a criminal offense to be furnished the home address, date of birth, or home telephone number of a witness who is a law enforcement officer or a nonsworn employee of a law enforcement agency. Instead, in such cases, such person shall be furnished with the current work location and work phone number of the law enforcement officer or nonsworn employee of a law enforcement agency.
(c) Any formerly employed or retired law enforcement officer or nonsworn employee of a law enforcement agency may use the address and phone number of the last agency where he or she was employed as his or her contact information for purposes of this Code section. Use of this subsection by an officer or employee shall constitute a waiver of any claim by such officer or employee as to any defect of service or notice of hearing if the service or notice was provided to the designated law enforcement agency and shall impose an affirmative obligation on such officer or employee to keep current his or her personal address and phone number information with such agency.
(a) At least ten days prior to the trial of the case, the defendant shall be entitled to have a copy of any statement given by the defendant while in police custody. The defendant may make such request for a copy of any such statement, in writing, within any reasonable period of time prior to trial.
(b) If the defendant's statement is oral or partially oral, the prosecution shall furnish, in writing, all relevant and material portions of the defendant's statement.
(c) Failure of the prosecution to comply with a defendant's timely written request for a copy of such defendant's statement, whether written or oral, shall result in such statement being excluded and suppressed from the prosecution's use in its case-in-chief or in rebuttal.
(d) If the defendant's statement is oral, no relevant and material, incriminating or inculpatory, portion of the statement of the defendant may be used against the defendant unless it has been previously furnished to the defendant, if a timely written request for a copy of the statement has been made by the defendant.
(e) This Code section shall not apply to evidence discovered after a request has been filed. If a request has been filed, such evidence shall be produced as soon as possible after it has been discovered.
(a) As used in this Code section, the term “written scientific reports” includes, but is not limited to, reports from the Division of Forensic Sciences of the Georgia Bureau of Investigation; an autopsy report by the coroner of a county or by a private pathologist; blood alcohol test results done by a law enforcement agency or a private physician; and similar types of reports that would be used as scientific evidence by the prosecution in its case-in-chief or in rebuttal against the defendant.
(b) In all criminal trials the defendant shall be entitled to have a complete copy of any written scientific reports in the possession of the prosecution which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal. The request for a copy of any written scientific reports shall be made by the defendant in writing at arraignment or within any reasonable time prior to trial. If such written request is not made at arraignment, it shall be within the sound discretion of the trial judge to determine in each case what constitutes a reasonable time prior to trial. If the scientific report is in the possession of or available to the prosecuting attorney, the prosecuting attorney must comply with this Code section at least ten days prior to the trial of the case.
(c) Failure by the prosecution to furnish the defendant with a copy of any written scientific report, when a proper and timely written demand has been made by the defendant, shall result in such report being excluded and suppressed from evidence in the prosecution's case-in-chief or in rebuttal.
The General Assembly hereby finds and declares it to be the policy of this state that victims of crimes should be accorded certain basic rights just as the accused are accorded certain basic rights. These rights include:
(1) The right to reasonable, accurate, and timely notice of any scheduled court proceedings or any changes to such proceedings;
(2) The right to reasonable, accurate, and timely notice of the arrest, release, or escape of the accused;
(3) The right not to be excluded from any scheduled court proceedings, except as provided in this chapter or as otherwise required by law;
(4) The right to be heard at any scheduled court proceedings involving the release, plea, or sentencing of the accused;
(5) The right to file a written objection in any parole proceedings involving the accused;
(6) The right to confer with the prosecuting attorney in any criminal prosecution related to the victim;
(7) The right to restitution as provided by law;
(8) The right to proceedings free from unreasonable delay; and
(9) The right to be treated fairly and with dignity by all criminal justice agencies involved in the case.
This chapter shall be known and may be cited as the “Crime Victims' Bill of Rights.”
As used in this chapter, the term:
(1) “Accused” means a person suspected of and subject to arrest for, arrested for, or convicted of a crime against a victim.
(1.1) “Arrest” means an actual custodial restraint of a person or the person's submission to custody and includes the taking of a child into custody.
(2) “Arresting law enforcement agency” means any law enforcement agency, other than the investigating law enforcement agency, which arrests the accused.
(3) “Compensation” means awards granted by the Georgia Crime Victims Compensation Board pursuant to Chapter 15 of this title.
(4) “Crime” means an act committed in this state which constitutes any violation of Chapter 5 of Title 16; Chapter 6 of Title 16; Article 1, 3, or 4 of Chapter 7 of Title 16; Article 1 or 2 of Chapter 8 of Title 16; Chapter 9 of Title 16; Part 3 of Article 3 of Chapter 12 of Title 16; Code Section 40-6-393; Code Section 40-6-393.1; or Code Section 40-6-394.
(4.1) “Criminal justice agency” means an arresting law enforcement agency, custodial authority, investigating law enforcement agency, prosecuting attorney, or the State Board of Pardons and Paroles.
(5) “Custodial authority” means a warden, sheriff, jailer, deputy sheriff, police officer, correctional officer, officer or employee of the Department of Corrections or the Department of Juvenile Justice, community supervision officer or employee of the Department of Community Supervision, or any other law enforcement officer having actual custody of the accused.
(6) “Investigating law enforcement agency” means the law enforcement agency responsible for the investigation of the crime.
(7) “Notice,” “notification,” or “notify” means a written notice when time permits or, failing such, a documented effort to reach the victim by telephonic or other means.
(8) “Person” means an individual.
(9) “Prompt notice,” “prompt notification,” or “promptly notify” means notification given to the victim as soon as practically possible so as to provide the victim with a meaningful opportunity to exercise his or her rights pursuant to this chapter.
(10) “Prosecuting attorney” means the district attorney, the solicitor-general of a state court or the solicitor of any other court, the Attorney General, a county attorney opposing an accused in a habeas corpus proceeding, or the designee of any of these.
(11) “Victim” means:
(A) A person against whom a crime has been perpetrated or has allegedly been perpetrated; or
(B) In the event of the death of the crime victim, the following relations if the relation is not either in custody for an offense or the defendant:
(i) The spouse;
(ii) An adult child if division (i) of this subparagraph does not apply;
(iii) A parent if divisions (i) and (ii) of this subparagraph do not apply;
(iv) A sibling if divisions (i) through (iii) of this subparagraph do not apply; or
(v) A grandparent if divisions (i) through (iv) of this subparagraph do not apply; or
(C) A parent, guardian, or custodian of a crime victim who is a minor or a legally incapacitated person except if such parent, guardian, or custodian is in custody for an offense or is the defendant.
If a victim is physically unable to exercise privileges and rights under this chapter, the victim may designate by written instrument his or her spouse, adult child, parent, sibling, or grandparent to act in place of the victim during the duration of the physical disability. During the physical disability, notices to be provided under this chapter to the victim shall continue to be afforded only to the victim.
(a) All victims, wherever practicable, shall be entitled to notification of:
(1) The accused's arrest;
(2) The accused's release from custody;
(3) Any judicial proceeding at which the release of the accused will be considered;
(4) An escape by the accused and his or her subsequent rearrest; and
(5) If the accused is released from custody and the terms or conditions of such release require that the accused participate in an electronic release and monitoring program, the accused's violation of the terms or conditions of the electronic release and monitoring program, provided that an arrest warrant has been issued for the accused and the accused is prohibited from contacting the victim.
(b) No such notification shall be required unless the victim provides a current address and telephone number to which such notice can be directed.
(c) The criminal justice agency having knowledge of an event described in subsection (a) of this Code section shall provide notice to the victim of such event. Such agency shall advise the victim of his or her right to notification pursuant to this chapter and of the requirement of the victim's providing a current address and telephone number to which the notification shall be directed. Such victim shall transmit the telephone number described in this subsection to the appropriate criminal justice agency or custodial authority as provided for in this chapter.
(a) If the accused is committed to the Department of Behavioral Health and Developmental Disabilities pursuant to the provisions of Part 2 of Article 6 of Chapter 7 of this title, the department shall, upon the written request of the victim, mail to the victim at least ten days before the release or discharge of the accused notice of the release or discharge of the accused.
(b) The Department of Behavioral Health and Developmental Disabilities shall mail to the victim immediately after the escape or subsequent readmission of the accused notice of such escape or subsequent readmission of the person who is placed by court order in the custody of the department pursuant to the provisions of Part 2 of Article 6 of Chapter 7 of this title.
(a) Upon initial contact with a victim, all law enforcement and court personnel shall make available to the victim the following information written in plain language:
(1) The possibility of pretrial release of the accused, the victim's rights and role in the stages of the criminal justice process, and the means by which additional information about these stages can be obtained;
(2) The availability of victim compensation and, if the victim has been trafficked for labor or sexual servitude as defined in Code Section 16-5-46, compensation available through the federal government pursuant to 22 U.S.C. Section 7105; and
(3) The availability of community based victim service programs.
(b) The Criminal Justice Coordinating Council is designated as the coordinating entity between various law enforcement agencies, the courts, and social service delivery agencies. The Criminal Justice Coordinating Council shall develop and disseminate written information upon which law enforcement personnel may rely in disseminating the information required by this chapter.
(a) Whenever possible, the investigating law enforcement agency shall give to a victim prompt notification as defined in paragraph (9) of Code Section 17-17-3 of the arrest of an accused.
(b) The arresting law enforcement agency shall promptly notify the investigating law enforcement agency of the accused's arrest.
(c) Whenever possible, the prosecuting attorney shall notify the victim prior to any proceeding in which the release of the accused will be considered.
(d) Whenever possible, the prosecuting attorney shall offer the victim the opportunity to express the victim's opinion on the release of the accused pending judicial proceedings.
(e)(1) Whenever possible, the custodial authority shall give prompt notification to a victim of the release of the accused.
(2) Prompt notification of release from a county or municipal jail is effected by placing a telephone call to the telephone number provided by the victim and giving notice to the victim or any person answering the telephone who appears to be sui juris or by leaving an appropriate message on a telephone answering machine.
(3) Notification of release from the custody of the state or any county correctional facility shall be in the manner provided by law.
(f) If the court has granted a pretrial release or supersedeas bond, the victim shall have the right to file a written complaint with the prosecuting attorney asserting acts or threats of physical violence or intimidation by the accused or at the accused's direction against the victim or the victim's immediate family. Based on the victim's written complaint or other evidence, the prosecuting attorney may move the court that the bond or personal recognizance of an accused be revoked.
(a) Upon initial contact with a victim, a prosecuting attorney shall give prompt notification to the victim of the following:
(1) The procedural steps in processing a criminal case including the right to restitution;
(2) The rights and procedures of victims under this chapter;
(3) Suggested procedures if the victim is subjected to threats or intimidation;
(4) The names and telephone numbers of contact persons at both the office of the custodial authority and in the prosecuting attorney's office; and
(5) The names and telephone numbers of contact persons at the office of the investigating agency where the victim may make application for the return of any of the victim's property that was taken during the course of the investigation, as provided by Code Section 17-5-50.
(b) If requested in writing by the victim and to the extent possible, the prosecuting attorney shall give prompt advance notification of any scheduled court proceedings and notice of any changes to that schedule. Court proceedings shall include, but not be limited to, pretrial commitment hearings, arraignment, motion hearings, trial, sentencing, restitution hearings, appellate review, and post-conviction relief. The prosecuting attorney shall notify all victims of the requirement to make such request in writing.
(c)(1) In the event the victim seeks restitution, the victim shall provide the prosecuting attorney with his or her legal name, address, phone number, social security number, date of birth, and, if the victim has an e-mail address, his or her e-mail address. The victim shall also provide such information, other than a social security number, to the prosecuting attorney for a secondary contact person in the event the victim cannot be reached after reasonable efforts are made to contact such victim. The prosecuting attorney shall advise the victim of any agency that will receive such information and advise the victim that he or she is responsible for updating such information with the prosecuting attorney while the case involving the victim is pending and that he or she should update the agency with such information after a restitution order has been entered.
(2) The prosecuting attorney shall transmit the information collected in paragraph (1) of this subsection to the Department of Corrections, Department of Community Supervision, Department of Juvenile Justice, or the State Board of Pardons and Paroles, as applicable, if an order of restitution is entered.
(3) The information collected pursuant to paragraph (1) of this subsection shall be treated as confidential and shall not be disclosed to any person outside of the disclosure provided by this subsection; such information shall not be subject to Article 4 of Chapter 18 of Title 50, relating to open records, or subject to subpoena, discovery, or introduction into evidence in any civil or criminal proceeding.
(a) A victim shall have the right to refuse to submit to an interview by the accused, the accused's attorney, or an agent of the accused. It shall be the duty of the prosecuting attorney to advise a victim that he or she has the right to agree to such an interview or to refuse such an interview.
(b) If a victim agrees to be interviewed, such victim may set conditions for such interview as he or she desires. Conditions may include, but shall not be limited to, the time, date, and location of the interview, what other persons may be present during the interview, any security arrangements for the interview, and whether or not the interview may be recorded. If requested by a victim, the prosecuting attorney or his or her agent may attend the interview. A victim has the right to terminate the interview at any time or to refuse to answer any question during the interview.
(c) The accused, the accused's attorney, and any agent of the accused shall not contact a victim in an unreasonable manner; and if a victim has clearly expressed to any such party a desire not to be contacted, no contact shall be made. When making any permissible contact with the victim, the accused's attorney or an agent of the accused shall make a clear statement that he or she is contacting the victim on behalf of the accused.
(d) For the purposes of this Code section, a peace officer shall not be considered a victim if the act that would have made the officer a victim occurs while the peace officer is acting within the scope of the officer's official duties.
(e) Except as provided in this Code section, the prosecuting attorney shall not take any action to deny an accused's attorney access to a victim for the purpose of interviewing such victim.
(a) A victim has the right to be present at all criminal proceedings in which the accused has the right to be present. A victim or member of the immediate family of a victim shall not be excluded from any portion of any hearing, trial, or proceeding pertaining to the offense based solely on the fact that such person is subpoenaed to testify unless it is established that such victim or family member is a material and necessary witness to such hearing, trial, or proceeding and the court finds that there is a substantial probability that such person's presence would impair the conduct of a fair trial. The provisions of this Code section shall not be construed as impairing the authority of a judge to remove a person from a trial or hearing or any portion thereof for the same causes and in the same manner as the rules of court or law provides for the exclusion or removal of the accused. A motion to exclude a victim or family members from the courtroom for any reason other than misconduct shall be made and determined prior to jeopardy attaching.
(b) A victim of a criminal offense who has been or may be subpoenaed to testify at such hearing or trial shall be exempt from the provisions of Code Section 24-6-615 requiring sequestration; provided, however, that the court shall require that the victim be scheduled to testify as early as practical in the proceedings.
(c) If the victim is excluded from the courtroom, the victim shall have the right to wait in an area separate from the accused, from the family and friends of the accused, and from witnesses for the accused during any judicial proceeding involving the accused, provided that such separate area is available and its use in such a manner practical. If such a separate area is not available or practical, the court, upon request of the victim made through the prosecuting attorney, shall attempt to minimize the victim's contact with the accused, the accused's relatives and friends, and witnesses for the accused during any such judicial proceeding.
Communications between a victim, other than a peace officer, and victim assistance personnel appointed by a prosecuting attorney and any notes, memoranda, or other records made by such victim assistance personnel of such communication shall be considered attorney work product of the prosecuting attorney and not subject to disclosure except where such disclosure is required by law. Such work product shall be subject to other exceptions that apply to attorney work product generally.
As a condition of permitting a response to an inquiry as to the victim's current address, telephone number, or place of employment, the court may require counsel or any other officer of the court, including but not limited to counsel for the defendant, not to transmit or permit transmission to the defendant of the victim's current address, telephone number, or place of employment by the counsel or officer of the court or any employee, agent, or other representative of the counsel or officer of the court.
The prosecuting attorney shall offer the victim the opportunity to express the victim's opinion on the disposition of an accused's case, including the views of the victim regarding:
(1) Plea or sentence negotiations; and
(2) Participation in pretrial or post-conviction diversion programs.
This provision shall not limit any other right created pursuant to state law.
(a) Upon the written request of the victim, the prosecuting attorney shall notify the victim of the following:
(1) That the accused has filed a motion for new trial, an appeal of his or her conviction, or an extraordinary motion for new trial;
(2) Whether the accused has been released on bail or other recognizance pending the disposition of the motion or appeal;
(3) The time and place of any appellate court proceedings relating to the motion or appeal and any changes in the time or place of those proceedings; and
(4) The result of the motion or appeal.
(b) The Attorney General shall notify the prosecuting attorney of the filing of collateral attacks on convictions of this state which are being defended by the Attorney General.
(b.1) In cases in which the accused is convicted of a capital offense and receives the death penalty, the Attorney General shall:
(1) Notify the prosecuting attorney and upon the written request of the victim notify the victim of the filing and disposition of all collateral attacks on such conviction which are being defended by the Attorney General, including, but not limited to, petitions for a writ of habeas corpus, and the time and place of any such proceedings and any changes in the time or place of those proceedings; and
(2) Provide the prosecuting attorney and upon the written request of the victim provide the victim with a report on the status of all pending appeals, collateral attacks, and other litigation concerning such conviction which is being defended by the Attorney General at least every six months until the accused dies or the sentence or conviction is overturned or commuted or otherwise reduced to a sentence other than the death penalty.
(c) In the event the accused is granted a new trial or the conviction is reversed or remanded and the case is returned to the trial court for further proceedings, the victim shall be entitled to request the rights and privileges provided by this chapter.
(a) As used in this Code section, the term “mail” means any form of written communication, including, but not limited to, letters, cards, postcards, packages, parcels, and e-mail as defined by Code Section 16-9-100, text messaging, and any other form of electronic communication which is knowingly intended to be delivered to or received by a victim, any member of the victim's family, or any member of the victim's household.
(b)(1) A victim shall have the right to request not to receive mail from an inmate who was convicted of committing a criminal offense against such victim or was adjudicated by the juvenile court of having committed a delinquent act or designed felony against such victim.
(2) A victim's right to request not to receive mail from such inmate shall extend to any member of such victim's family or any member of such victim's household during the term of the sentence imposed or dispositional order for such offense.
(3) As soon as practical following a conviction or adjudication, a victim shall be provided with the instructions for requesting that inmate mail be blocked as provided in subsection (c) of this Code section. If the conviction is from a state or superior court, it shall be the duty of the prosecuting attorney to provide a victim with such instructions. If the adjudication is from the juvenile court, such instructions shall be provided by the juvenile court.
(c) The Department of Corrections and the Department of Juvenile Justice shall develop and provide to the prosecuting attorneys and juvenile courts, respectively, the procedures a victim shall follow in order to block inmate mail. Such procedures may include secure electronic means provided that an alternate, nonelectronic procedure is available for victims without access to a computer. Such departments shall also develop and implement appropriate administrative sanctions which shall be imposed against an inmate violating the provisions of this Code section.
(d) If a victim submits a request to block inmate mail, the Department of Corrections, in the case of an adult, or the Department of Juvenile Justice, in the case of a juvenile, shall:
(1) Notify any other custodial authority having actual custody of the inmate of the names and addresses of such victim and the family or household members denoted by such victim;
(2) Notify the inmate of the request to have mail blocked and advise the inmate that sending mail directly or through any third party to such victim or the family or household members denoted by such victim is prohibited and will result in appropriate sanctions and review of all outgoing mail; and
(3) Institute such procedures to ensure that the inmate cannot send mail directly or through any third party to such victim or the family or household members denoted by such victim.
(e) Any custodial authority having actual custody of an inmate with mail restrictions shall not knowingly forward mail addressed to any person who requests not to receive mail pursuant to this Code section.
(f) The imposition of sanctions by a custodial authority pursuant to this Code section shall not preclude the imposition of any other remedies provided by law, nor shall such sanctions bar prosecution of the inmate for any criminal offense which may have been committed in sending such mail.
(g) Notwithstanding the provisions of Article 4 of Chapter 18 of Title 50, information concerning the names and addresses of a victim, and the family or household members denoted by such victim, who requests that inmate mail be blocked shall not be open to inspection by or made available to the public and shall not be subject to discovery in any civil or criminal case or administrative proceeding unless the court, after notice and a hearing, makes a finding of fact that such information is material and relevant to the case and that such information is not available from any other source.
The State Board of Pardons and Paroles shall give 20 days' advance notification to a victim whenever it considers making a final decision to grant parole, release a defendant for a period exceeding 60 days, or grant a pardon; and the board shall provide the victim with an opportunity to file a written objection to such action. Within 72 hours of receiving a request to commute a death sentence, the State Board of Pardons and Paroles shall provide notification to a victim of the date set for hearing such request and provide such victim an opportunity to file a written response to such request. No notification to the victim need be given unless the victim has expressed a desire for such notification and has provided the State Board of Pardons and Paroles with a current mailing or e-mail address and telephone number. Failure of the victim to inform the board of a change of address or telephone number shall not void a decision of the board.
(a) It is the right and responsibility of the victim who desires notification under this chapter or under any other notification statute to keep the following informed of the victim's current address and phone number:
(1) The investigating law enforcement agency;
(2) The prosecuting attorney, until final disposition or completion of the appellate and post-conviction process, whichever occurs later;
(3) As directed by the prosecuting attorney, the sheriff if the accused is in the sheriff's custody for pretrial, trial, or post-conviction proceedings; the Department of Corrections if the accused is in the custody of the state; or any county correctional facility if the defendant is sentenced to serve time in a facility which is not a state facility;
(4) The Department of Community Supervision; and
(5) The State Board of Pardons and Paroles.
(b) Current addresses and telephone numbers of victims and their names provided for the purposes of notification pursuant to this chapter or any other notification statute shall be confidential and used solely for the purposes of this chapter and shall not be subject to disclosure under Article 4 of Chapter 18 of Title 50, relating to inspection of public records.
(a) Failure to provide or to timely provide any of the information or notifications required by this chapter shall not subject the person responsible for such notification or that person's employer to any liability for damages.
(b) Failure to provide a victim with any of the rights required by law shall not give an accused a basis for error in either an appellate action or a post-conviction writ of habeas corpus.
(c)(1) Except as provided in this subsection, this chapter shall not confer upon a victim any standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.
(2)(A) When a victim has made a written request to the prosecuting attorney to be notified of all proceedings and has provided contact information to the prosecuting attorney, and such victim asserts that he or she was not provided notification of a proceeding, he or she may file a motion requesting to be heard on such matter. When a victim has made a written request to the prosecuting attorney to be heard according to this chapter in a criminal proceeding and alleges that he or she was not given such opportunity by the prosecuting attorney or court, such victim may file a motion requesting to be heard on such matter. When a victim alleges that any other provision of this chapter has not been complied with, such victim may file a motion alleging such deficiency and requesting to be heard on such matter.
(B) Such motion shall be filed as soon as possible, but not later than 20 days after the claimed denial. Such motion shall be filed in the criminal case, and the victim shall provide a copy of the motion and hearing notice to the prosecuting attorney and the defendant.
(3) The court may set the victim's motion for a hearing or issue an order disposing of the motion. If the court conducts a hearing, the prosecuting attorney and the defendant shall have a right to be present at such hearing.
(4) The court's decision on all issues of fact and law raised in a motion under this subsection shall be final and shall not be subject to appeal.
(5) A motion filed pursuant to this subsection shall be the only means of raising or enforcing the rights provided under this chapter or Article I, Section I, Paragraph XXX of the Constitution of Georgia.
(6) When the victim's motion alleges potential failure by the prosecuting attorney, the prosecuting attorney may recuse in accordance with Code Section 15-18-5 or 15-18-65, as applicable. When the victim's motion alleges potential failure by the court, the judge may recuse in accordance with Code Section 15-1-8.
(d) The enumeration of these rights shall not be construed to deny or diminish other notification rights granted by state law.
(e) The victim may waive any of the information or notification or other rights provided for by this chapter.
(a) As used in this Code section, the term:
(1) “Course of conduct” spans a series of acts over a period of time, however short, indicating a continuity of purpose.
(2) “Harassment” means a course of conduct directed at a specific person that causes substantial emotional distress in such person.
(b)(1) A superior court, upon application of a prosecuting attorney, shall issue a temporary restraining order prohibiting harassment of a victim or witness in a criminal case if the court finds from specific facts shown by affidavit or by verified complaint that there are reasonable grounds to believe that harassment of an identified victim or witness in a criminal case exists or that such order is necessary to prevent and restrain an offense under Code Section 16-10-32 or 16-10-93.
(2)(A) A temporary restraining order may be issued under this Code section without written or oral notice to the adverse party or such party's attorney in a civil action under this Code section if the court finds, upon written certification of facts by the prosecuting attorney, that such notice should not be required and that there is a reasonable probability that the state will prevail on the merits.
(B) A temporary restraining order issued without notice under this Code section shall be endorsed with the date and hour of issuance and be filed forthwith in the office of the clerk of the court issuing the order.
(C) A temporary restraining order issued under this Code section shall expire at such time, not to exceed ten days from issuance, as the court directs. The court, for good cause shown before expiration of such order, may extend the expiration date of the order for up to ten days or for such longer period agreed to by the adverse party.
(D) When a temporary restraining order is issued without notice, the motion for a protective order shall be set down for hearing at the earliest possible time and takes precedence over all matters except older matters of the same character; and at the hearing, if the prosecuting attorney does not proceed with the application for a protective order, the court shall dissolve the temporary restraining order.
(E) If on two days' notice to the prosecuting attorney or on such shorter notice as the court may prescribe, the adverse party appears and moves to dissolve or modify the temporary restraining order, the court shall proceed to hear and determine such motion as expeditiously as the ends of justice require.
(F) A temporary restraining order shall set forth the reasons for the issuance of such order, be specific in terms, and describe in reasonable detail and not by reference to the complaint or other document the act or acts being restrained.
(c)(1) A superior court, upon motion of the prosecuting attorney, shall issue a protective order prohibiting harassment of a victim or witness in a criminal case if the court, after a hearing, finds by a preponderance of the evidence that harassment of an identified victim or witness in a criminal case exists or that such order is necessary to prevent and restrain an offense under Code Section 16-10-32 or 16-10-93.
(2) At the hearing referred to in paragraph (1) of this subsection, any adverse party named in the complaint shall have the right to present evidence and cross-examine witnesses.
(3) A protective order shall set forth the reasons for the issuance of such order, be specific in terms, and describe in reasonable detail and not by reference to the complaint or other document the act or acts being restrained.
(4) The court shall set the duration of effect of the protective order for such period as the court determines necessary to prevent harassment of the victim or witness but in no case for a period in excess of three years from the date of such order's issuance. The prosecuting attorney may, at any time within 90 days before the expiration of such order, apply for a new protective order under this Code section.
(d) Article 5 of Chapter 11 of Title 9, relating to depositions and discovery, shall not apply to actions brought pursuant to this Code section.
When any employee of the Department of Human Services, Department of Community Health, Department of Public Health, Department of Behavioral Health and Developmental Disabilities, a law enforcement agency, or a court has reason to believe that he or she in the course of official duties is speaking to an adult who is or has been a victim of a violation of Code Section 16-6-1, relating to rape, or Code Section 16-6-2, relating to aggravated sodomy, such employee shall offer or provide such adult a written statement of information for victims of rape or aggravated sodomy. Such written statement shall, at a minimum, include the information set out in Code Section 17-18-2 and may include additional information regarding resources available to victims of sexual assault. Information for victims of rape or aggravated sodomy may be provided in any language.
The following information in substantially the form set out in this Code section shall be provided to adult victims of rape or aggravated sodomy in accordance with Code Section 17-18-1:
“INFORMATION FOR VICTIMS OF RAPE OR FORCIBLE SODOMY
If you are the victim of rape or forcible sodomy, you have certain rights under the law.
Rape or forcible sodomy by a stranger or a person known to you, including rape or forcible sodomy by a person married to you, is a crime. You can ask the government's lawyer to prosecute a person who has committed a crime. The government pays the cost of prosecuting for crimes.
If you are the victim of rape or forcible sodomy, you should contact a local police department or other law enforcement agency immediately. A police officer will come to take a report and collect evidence. You should keep any clothing you were wearing at the time of the crime as well as any other evidence such as bed sheets. Officers will take you to the hospital for a medical examination. You should not shower or douche before the examination. The law requires that the Georgia Crime Victims Emergency Fund pay for the medical examination to the extent of the cost for the collection of evidence of the crime.”
As used in this chapter, the term:
(1) “Fillers” means individuals who are not suspects.
(2) “Law enforcement agency” means a governmental unit of one or more individuals employed full time or part time by the state, a state agency or department, or a political subdivision which performs as its principal function activities relating to preventing and detecting crime and enforcing state laws or local ordinances, employees of which unit are authorized to make arrests for crimes while acting within the scope of their authority.
(3) “Live lineup” means an identification procedure in which a suspect and fillers are displayed in person to a witness.
(4) “Photo lineup” means an identification procedure in which a photograph of a suspect and photographs of fillers are displayed to a witness, either in hard copy form or via computer.
(5) “Showup” means an identification procedure in which a witness is presented with a single individual.
(6) “Suspect” means the individual believed by law enforcement to be the possible perpetrator of an alleged crime.
(7) “Witness” means an individual who observes an alleged crime.
(a) Not later than July 1, 2016, any law enforcement agency that conducts live lineups, photo lineups, or showups shall adopt written policies for using such procedures for the purpose of determining whether a witness identifies someone as the perpetrator of an alleged crime.
(b) Live lineup, photo lineup, and showup policies shall include the following:
(1) With respect to a live lineup, having an individual who does not know the identity of the suspect conduct the live procedure;
(2) With respect to a photo lineup, having an individual:
(A) Who does not know the identity of the suspect conduct the photo lineup; or
(B) Who knows the identity of the suspect use a procedure in which photographs are placed in folders, randomly shuffled, and then presented to the witness so that the individual conducting such procedure cannot physically see which photograph is being viewed by the witness until the procedure is complete;
(3) Providing the witness with instruction that the perpetrator of the alleged crime may or may not be present in the live lineup or photo lineup;
(4) Composing a live lineup or photo lineup so that the fillers generally resemble the witness's description of the perpetrator of the alleged crime;
(5) Using a minimum of four fillers in a live lineup and a minimum of five fillers in a photo lineup; and
(6) Having the individual conducting a live lineup, photo lineup, or showup seek and document, at the time that an identification of an individual or photograph is made, and in the witness's own words without necessarily referencing a numeric or percentage standard, a clear statement from the witness as to the witness's confidence level that the individual or photograph identified is the individual or photograph of the individual who committed the alleged crime.
(c) All law enforcement agency written policies adopted pursuant to this Code section shall be subject to public disclosure and inspection notwithstanding any provision to the contrary in Article 4 of Chapter 18 of Title 50.
The court may consider the failure to comply with the requirements of this chapter with respect to any challenge to an identification; provided, however, that such failure shall not mandate the exclusion of identification evidence.
This chapter shall be known and may be cited as the “Coleman-Baker Act.”
As used in this chapter, the term:
(1) “Agency” means a law enforcement agency with the jurisdiction to engage in the detection, investigation, or prosecution of a cold case murder.
(2) “Cold case” means a homicide:
(A) That was committed more than three years prior to the date of an application by a designated person under subsection (c) of this Code section; and
(B) That was previously investigated by an agency; and
(C) For which all probative leads have been exhausted; or
(D) For which no likely perpetrator has been identified.
(3) “Designated person” means an immediate family member or their designated legal representative who shall be a member in good standing with the Georgia State Bar.
(4) “Immediate family member” means a parent, parent-in-law, grandparent, grandparent-in-law, sibling, spouse, child, or stepchild of a victim or any person who exercised in loco parentis control over a victim under the age of 18 years.
(5) “Murder” means any criminal offense provided under Code Section 16-5-1.
(6) “Probative lead” means evidence which is sufficiently useful to prove an element of the crime, which was not identified or determined as part of the previous investigation by the agency.
(7) “Victim” means a natural person who died as a result of a cold case murder.
(a) The head of an agency or his or her designee shall review the case file regarding a cold case murder upon written application by one designated person to determine if a full reinvestigation would result in:
(1) The identification of probative investigative leads; or
(2) A likely perpetrator.
(b) The review conducted under subsection (a) of this Code section shall include:
(1) An analysis of what investigative procedures may have been missed in the initial investigation;
(2) An assessment of whether witnesses should be interviewed or reinterviewed;
(3) An examination of physical evidence to see if all appropriate forensic testing and analysis was performed in the first instance or if additional testing might produce information relevant to the investigation; and
(4) An update of the case file using the most current investigative standards as of the date of the review to the extent it would help develop probative leads.
(c)(1) The agency shall conduct a full reinvestigation of the cold case murder at issue if in the agency's sole discretion the review of the case file concludes that a full reinvestigation of such cold case murder would result in additional, previously unidentified, probative leads or a likely perpetrator.
(2) A full reinvestigation shall include reviewing all evidence and analyzing those items which may contain forensic value collected in the cold case murder at issue for the purpose of developing probative leads or a likely perpetrator.
(3) The conclusion of a review of a cold case file conducted by the Georgia Bureau of Investigation under this Code section is subject to judicial review in accordance with Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.” Any result following the conclusion of the reinvestigation of a cold case by any sheriff or police department shall not be subject to Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”
(d)(1) A reinvestigation required under subsection (c) of this Code section shall not be solely conducted by a person who previously investigated the homicide at issue.
(2) Only one full reinvestigation shall be undertaken at any one time with respect to the same victim.
(3) If a full reinvestigation of a cold case murder is completed and a likely perpetrator is not identified at its conclusion, no additional case file review or full reinvestigation shall be undertaken with regard to that cold case murder for a period of five years beginning on the date of the conclusion of the reinvestigation, unless there is newly discovered, materially significant evidence.
(e)(1) Each agency shall develop a written application to be used by a designated person to request a case file review under subsection (a) of this Code section.
(2) Not later than July 1, 2024, the head of each agency or his or her designee shall promulgate procedures to ensure compliance by the agency with the provisions described in this chapter.
(f) The agency shall provide in writing to the designated person who made the application as soon as reasonably possible confirmation of the agency's receipt of the application. The agency's written confirmation shall include the process to submit a complaint to and contact information for the agency's unit responsible for internal investigations involving misconduct allegations.
(g)(1) In any case in which a written application for review has been received under this chapter by the investigating agency, review shall be declined where the case does not satisfy any criteria under paragraph (2) of Code Section 17-21-2 for a cold case murder.
(2) In such a case, the head of the agency or his or her designee shall issue a written letter, with a copy provided to the designated person who made the application under paragraph (1) of this subsection, stating that final review is not necessary.
(h) Not later than six months after the receipt of the written application, the agency shall complete its case file review and conclude whether or not a full reinvestigation is warranted as provided in subsection (a) of this Code section.
(i) The agency may extend the time limit under subsection (h) of this Code section once for a period of time not to exceed six months if the agency makes a finding that the number of case files to be reviewed make it impracticable to comply with such limit without unreasonably taking resources from other law enforcement activities. For cases for which the time limit is extended, the agency shall provide notice and an explanation of its reasoning to one designated person who filed the written application for review.
(j) The procedures promulgated under subsection (e) of this Code section shall require a course of training by an instructor certified by the Georgia Peace Officer Standards and Training Council as provided in Code Section 35-8-8 for appropriate employees and officers within the agency regarding the procedures, responsibilities, and obligations required under this chapter.
(k) The Carl Vinson Institute of Government of the University of Georgia shall establish and maintain a case tracking system and searchable public website that includes the following information about cold case murder investigations provided under this chapter:
(1) The number of written applications filed with the agency as provided in subsection (e) of this Code section;
(2) The number of extensions granted and an explanation of reasons provided under subsection (i) of this Code section;
(3) The number of full reinvestigations initiated and closed as provided in subsection (h) of this Code section; and
(4) Statistical information on the aggregate number of cold cases, suspects, arrests, indictments, and convictions.
(l)(1) If more than one agency conducted the initial investigation of a cold case murder, each agency shall coordinate their case file review or full reinvestigation such that there is only one joint case file review or full reinvestigation occurring at a time as provided in paragraph (2) of subsection (d) of this Code section.
(2) If more than one agency conducted the initial investigation of a cold case murder, if any involved agency conducts a full reinvestigation and a likely perpetrator is not identified at its conclusion, no additional case file review or full reinvestigation is required to be undertaken with regard to that cold case murder for a period of five years by any involved agency beginning on the date of the conclusion of the reinvestigation, unless there is newly discovered, materially significant evidence.
(m) The provisions of this chapter are subject to the availability of funds specifically appropriated by the General Assembly, or other relevant political subdivision of the state, for this purpose, for all costs incurred by state and local authorities.
(a) This Code section shall apply in the case of any cold case murder occurring on or after January 1, 1970.
(b) This chapter shall authorize a coroner or medical examiner to issue a death certificate as provided by Code Section 45-16-24, with a nonspecific cause of death and manner of homicide if, at the sole discretion of the coroner or medical examiner, the release of such information would not hinder the homicide investigation.
(c) In a case where the cause of death is listed as nonspecific homicidal means or undetermined and subsequent investigative information is provided sufficient to determine a specific cause of death, the coroner or medical examiner shall have six months from the date of final disposition of the investigation to file an amended death certificate to include the official cause of death.
(d) Nothing in this Code section shall prevent the probate or administration of the estate of a homicide victim or the distribution of any death benefits to the beneficiaries due to the withholding of the cause of death of a homicide victim.
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