GUIDE TO CRIMINAL PROCEDURE IN GEORGIA

In the event that you or a family member or acquaintance are ever faced with the unfortunate circumstances of being arrested for a criminal offense, whether a felony, a misdemeanor or a traffic offense, this guide will answer some questions you may have about the criminal process in Georgia. So, let’s get started.

 - A criminal case is tried in the City or County where the crime occurred, unlike a civil case that is typically tried in the County in which the Defendant resides.

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

 Municipal Court - Municipal Courts are "City" Courts that have jurisdiction over misdemeanor offenses committed in that City, and where the arrest was made by a law enforcement officer employed by that City or a State Police Officer. However, if the arrest involved a felony offense, then the Municipal Court may hold a probable cause and/or bond hearing only, and if probable cause is found, then the case must be "bound over" (forwarded) to the Superior Court in that County.

Magistrate Court - Magistrate Courts hear both criminal and civil matters. The civil section of the Magistrate Court hears small claims in which the amount in controversy does not exceed $15,000.00 (also known as "small claims court"). The civil section of Magistrate Court also holds hearings pertaining to temporary protective orders (TPO hearings) in which there are allegations of domestic violence. The criminal section of the Magistrate Court handles bond hearings, probable cause hearings, and warrant application hearings.

Recorders Court - Not all counties have "Recorders Courts". DeKalb County and Gwinnett County do have Recorders Courts which hear misdemeanor, criminal offense such as traffic offenses and misdemeanor theft offenses. Gwinnett County Recorders Court also hears misdemeanor DUI offenses. In DeKalb County, all misdemeanor DUI offenses are tried in the State Court.

State Court - Most counties have State Courts. State Courts handle misdemeanor criminal offenses where the crime was committed in that particular county. On the civil side, State Court also hears civil lawsuits.

Superior Court - Every county has its own Superior Court. The Superior Court hears all felony matters where the offense was committed in that particular county. The Superior Court, on the civil side, also hears civil lawsuits and family law matters such divorce, child support, etc.

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

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

 Probable Cause - Before an arrest may be made, the law requires that there be probable cause to make the arrest.

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

Warrant Application Hearing - An individual citizen who believes that he/she is a victim of a crime may go to the Magistrate Court and apply for a warrant. At the time of making their application, if the judge is not convinced that the crime has occurred, or if the judge thinks the facts are questionable, the judge may schedule a "warrant application hearing" to give the accused an opportunity to appear and give his/her side of the story. At the conclusion of the warrant application hearing, the judge will either dismiss the case or sign a warrant for the arrest of the accused.

Probable Cause Hearing (Magistrate Court) - A probable cause hearing must be requested by the Defendant. The purpose of the hearing is to determine whether the officer had enough probable cause to make the arrest. Some jurisdictions only grant probable cause hearings to the Defendant if he or she is still in custody. In those jurisdictions in which the Defendant is only permitted a probable cause hearing if still in custody, once the Defendant "bonds out" of jail, the case is automatically transferred to the State or Superior Court. At the probable cause hearing, the victim, the arresting officer, or an investigating officer must appear to testify as to the probable cause he or she had to make the arrest. Probable cause hearings are vital to the defense of the case, as this is the only opportunity that the defense attorney can actually cross examine the State’s witness on the stand, under oath, short of a trial hearing. Thus, many defense attorneys utilize the probable cause hearing for the purpose of discovering what evidence the State has against the accused. If the judge finds that there was not enough probable cause to make the arrest, the case will be dismissed. The judge may also find that there is not enough probable cause for the actual crime charged, but that there is evidence of a lesser criminal offense. In that case, the judge would bind the case over to the State or Superior Court on the lesser charge only.

Bond Hearing - Bond hearings are typically held in Magistrate Courts but are also held in State and Superior Courts where the Defendant is still in custody. Elements that must be addressed in requesting a bond include: (a) Whether the Defendant has any ties to the community; (b) Whether the Defendant is likely to intimidate any witnesses; (c) Whether the Defendant is likely to commit any new criminal offenses while out on bond; and (d) Whether the Defendant is likely to flee the jurisdiction of the Court if released on bond.

In determining bond, the judge will consider the severity of the offense, as well as, the facts testified to and the criminal record of the Defendant. In the event bond is denied or too high, the Defendant may apply at a later date for a "bond reduction."

 - The arraignment is the hearing in the State or Superior Court at which the Defendant is notified of what he/she is formally charged with having committed. The Defendant is requested to enter a plea of that time...either guilty, not guilty, or "nolo contendere" (also known as a "nolo" or "no contest" plea). However, a nolo plea is at the discretion of the Court and may only be used once every five years for the same offense. Also, discovery motions must be filed by the Defendant or his/her attorney at or prior to the arraignment, unless granted additional time by the Court. Discovery motions are a request to have the State turn over certain evidence and witness information.

 - A pre-trial conference is held for the purpose of negotiating with the State in an attempt to resolve a case. In some jurisdictions such as Clayton County and DeKalb County, pre-trial conferences are held with the judge, the defense attorney and the prosecutor (felony cases). In DeKalb County, the pre-trial conferences are formal in nature and are held in open court. In Clayton County, the pre-trial conferences are held at the judge’s bench out of the reach of those in the courtroom. In Fulton County, pre-trial conferences are held only between the defense attorney and the prosecutor, typically inside a jury room. In Cobb County and Gwinnett Counties, pre-trial conferences are normally held at the prosecutor’s table, in court, and typically do not involve the judge. Where a pre-trial conference includes the judge, at the conclusion of the pre-trial conference, the judge will notify the prosecutor and the defense attorney what his or her sentence will likely be if the Defendant enters a guilty plea. At that time, the Defendant knows what he/she is facing if he/she wants to resolve the case without a trial. Typically, if the Defendant rejects the plea and is convicted at the conclusion of trial, the punishment will be more severe than had he/she entered the guilty plea.

 - Plea negotiations are discussions between the defense attorney and prosecutor. During these negotiations, the defense attorney is attempting to either convince the prosecutor to dismiss the charges outright, reduce the charge(s), or reduce the punishment the State is requesting.

 - A negotiated plea is a plea deal that has been reached and agreed upon by the Defendant, his/her attorney, and the State (prosecutor). Most judges will approve a "negotiated plea" by all parties. However, if the judge indicates that he/she will not accept the plea as negotiated, then the Defendant has the right to withdraw his/her guilty plea prior to sentencing.

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

 - After the arraignment, unless there is a motions calendar, the next court appearance will typically be the "trial calendar call" for those Defendants who entered a plea of "not guilty" at the arraignment. The trial calendar call permits those remaining defendants to either "pre-try" (pre-trial conference) their cases in an attempt to reach an agreement, to enter their guilty pleas, or to maintain their request for a trial by judge or jury. For those requesting a trial, scheduling will take place for trial. In some jurisdictions such as Clayton County, there is no "trial calendar call". The next court date after the arraignment is either a motion hearing calendar or the jury trial date.

 - A bench trial (also known as a "non-jury trial"), is a trial without a jury where the judge alone determines the guilt or innocense.

 - A jury trial is a trial in which six (6) jurors in State Court or twelve (12) jurors in Superior Court determine the guilt or innocense of the accused. For a conviction, all jurors must be unanimous.

Due to the severe consequences that result with a conviction, it is imperative that any individual arrested for a criminal offense contact an experienced attorney immediately after the arrest, or as soon as he/she becomes aware of an investigation that may lead to an arrest.

There is an old saying in the legal community, "Any person who represents himself/herself has a fool for a client". It is seen time after time that the strongest evidence leading to a conviction is, in many cases, the evidence given by the accused by making statements prior to retaining the services of an experienced attorney. Accordingly, it can’t be stressed enough, contact an attorney immediately to protect your Constitutional rights. Call Attorney Anthony O. Van Johnson right away at: (404) 551-2428 to discuss your case.  http://www.vanjohnsonlaw.us .