14 Bond Chart

14.0 BOND CHART

WHEN MAGISTRATE COURT CANNOT SET BAIL (OCGA 17-6-1)

1. Offenses (11 categories) in shaded box never bailable before a magistrate Cannot ever set bail:

A. Murder

B. Rape

C. Aggravated Sodomy

D. Armed Robbery

E. Aggravated Child Molestation

F. Aggravated Sexual Battery

G. Treason

H. Motor Vehicle Hijacking (includes attempts and conspiracies) or Aircraft Hijacking

I. Schedule I (16-13-25)

Schedule II (16-13-26):

- administering

- delivering

- dispensing

- distributing

- manufacturing

- selling

J. Trafficking in cocaine, ecstasy, methamphetamine, or marijuana

K. Aggravated Stalking

L. Home Invasion in the first degree

M. Violations of Chapter 15 of Title 16 (Criminal gang activity)

2. If the defendant had been convicted for, or was on bail, probation or parole for any of the 15 offenses listed on this page (both boxes), except aggravated stalking, the magistrate cannot set bail for the four offenses in this second box:

Cannot set bail for these offenses when Defendant has prohibited record:

1. Aggravated Assault

2. Arson

3. Burglary

4. Kidnaping

Some common Schedule I drugs: heroin, mescaline, peyote, THC, methaqualone.

Some common Schedule II drugs: opium, codeine, morphine, cocaine, methadone.

Superior Court judge may by written order delegate authority to set these bonds to any magistrate except in cases where the death penalty or life imprisonment may be imposed.

OCGA 17-10-1 Checklist

Magistrates may now set bail, but only after formal hearing

1. Is the Defendant on probation or parole for any criminal offense?

2. Is the Defendant now charged with any new felony or with a misdemeanor involving physical injury or an attempt to commit physical injury?

If the answer to both questions is "yes", Defendant has no automatic right to bail.

Prior to the magistrate court setting bail, it must conduct a hearing and determine that the defendant does not pose a threat to the community. A written bail order granting or denying bail, with a factual finding whether defendant does or does not pose a threat to the community, would be the appropriate conclusion to the bail hearing.

NOTE - This provision controls over the normal right of a misdemeanant to bail [OCGA 17-6-1(b)(1)], and also the authority of the sheriff to set reasonable bail in misdemeanor cases [OCGA 17-6-2]. Additionally, the requirement of a hearing and a factual finding of no threat to the community should preclude the application of a bond schedule when the defendant on probation or parole has not had a revocation hearing.

14. PRETRIAL RELEASE (BOND)

14.1 WHEN BOND SHOULD BE SET BY MAGISTRATE

14.11 Cannot Set Bond Regardless of Record - These offenses are bailable only before a superior court judge [OCGA 17-6-1]:

1. Murder

2. Rape

3. Armed Robbery

4. Aggravated Child Molestation

5. Aggravated Sodomy

6. Aggravated Sexual Battery

7. Motor Vehicle Hijacking (offense includes conspiracies and attempts) and Aircraft Hijacking (attempts and conspiracies not included).

8. Treason

9. Schedule I (16-13-25)

Schedule II (16-13-26):

- administering

- delivering

- dispensing

- distributing

- manufacturing

- selling

10. Trafficking in cocaine (>28 g.), methamphetamine (>28 g.), marijuana (>10 lbs.) (16-13-31) or ecstasy (>28 g.) (16-13-31.1).

11. Aggravated Stalking.

12. Home Invasion in the First Degree.

13. Violations of Chapter 15 of Title 16 (Criminal gang activity).

14.12 Repeat Offender Bond Restrictions

A. The authority of the magistrate to bond the following offenses is dependent upon the defendant's record:

1. Aggravated Assault;

2. Arson;

3. Burglary;

4. Kidnaping.

B. The magistrate cannot set bond in these cases if the defendant, at the time the offense was committed was:

1. Previously convicted;

2. On probation or parole; OR

3. Out on bond (including release on own recognizance) for any of the 15 crimes listed in either 14.11 or 14.12A, except Aggravated Stalking, at the time the present crime was allegedly committed.

C. Repeat Serious Violent Felonies - Rebuttable presumption that no bond sufficient where defendant was already convicted of serious violent felony and now is charged with another [OCGA 17-6-1(e)]. Serious violent felonies are murder, armed robbery, kidnaping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery [OCGA 17-10-6.1]. Such repeat offenses carry terms of life imprisonment without parole.

14.13 Where Defendant on Probation or Parole

A. Restrictions on Bail - Defendants on probation or parole charged with a new crime (felony or misdemeanor involving physical injury or attempted physical injury) "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 ... magistrate court ... after a hearing and upon determination that the parolee or probationer does not constitute a threat to the community" [OCGA 17-10-1(a)(3)(B)]; the victim notice provisions of OCGA 17-17-5 would apply. A written bond order granting or denying bond, with a factual finding contained in the order, would be the appropriate conclusion to the bond hearing.

EXAMPLE - Defendant 1 is convicted of passing a $75.00 bad check and is placed on probation to pay the fine and restitution. He is later arrested for slugging someone in a bar or for writing a bad check on an out-of-state bank. Either case would be under OCGA 17-10-1.

NOTE - This provision controls over the normal right of a misdemeanant to bond [OCGA 17-6-1(b)(1)], the authority of the sheriff to set reasonable bonds in misdemeanor cases [OCGA 17-62]. Additionally, the requirement of a hearing and a factual finding of no threat to the community blocks the application of a bond schedule when the defendant on probation or parole has not had

a revocation hearing. Does the statute apply if no probation revocation charges are ever filed? Perhaps it applies only when revocation proceedings are pending, as when a probation hold is placed.

B. 17-10-1 Bail Order - FORM

IN THE MAGISTRATE COURT OF ___________________ COUNTY

STATE OF GEORGIA

STATE OF GEORGIA

v. Warrant No. ___________________

___________________

Defendant

BAIL ORDER

Defendant's request for bail having been made [by and through his/her attorney ___________________ ], and the State being represented by ___________________ who (did)(did not) oppose any bond in the case, and a hearing being held pursuant to O.C.G.A. § 17-10-1,

IT IS HEREBY ORDERED that bail in the above-styled case is [DENIED on the basis that the Defendant does pose a threat to the community] [GRANTED upon a determination that the

Defendant does not pose a threat to the community in the amount of $___________________ ] [upon the

following terms and conditions:_________________________________________________________

____________________________________________________________________________

This the ___________________ day of___________________ , 20________.

Judge, Magistrate Court of ___________________ County

14.14 Notification of Superior Court of Non-Bondable Status - When defendant is brought before Magistrate for first appearance and it is a case requiring bond to be set by Superior Court, Magistrate must notify Superior Court of fact in writing within 48 hours. Notice "shall include any incident reports and criminal history reports relevant to the detention of such person" [OCGA 17-6-1(c)].

14.15 All Other Felonies are Bailable by the Magistrate Court [Lane, 247 Ga. 387. 388. 276 SE2d 644 (1981)]. In fact, Lane held that the defendant had a right to bond in

some amount on felonies not described in 14.11 or 14.12 [OCGA 17-6-1, 17-6-13 (one bail for the same offense as a matter of right), 17-7-24, URMC § 11.2, Lane, 247 Ga. 387 ("shall be bailable")]. Whether Lane's mandatory requirement of bond survives the 1988 revision of OCGA 17-6-1 (see subsection (e) in particular) is questionable.

14.16 Misdemeanors are Initially Bailable as a Matter of Right. HOWEVER:

A. Subsequent bails are a matter of discretion [OCGA 17-6-13; Clarke, 228 Ga.App. 219, 491 SE2d 450 (1997) - but see OCGA 17-6-1(b)].

B. Persons driving with unlawful blood alcohol [OCGA 40-6-391(a)(4)] may be held up to 6 hours prior to being released [OCGA 17-6-1].

C. In family violence case, if officer makes arrest or arresting officer on warrant case makes request, defendant must be brought before judge to set bond. (See 14.22B).

D. See 14.13, 14.92 [Clarke, 228 Ga.App. 219, 491 SE2d 450 (1997)].

14.17 Written Findings Preferred When Bail is Denied - if the magistrate declines to set bond, a finding should be written on or attached to the warrant setting forth the reason for denial [see Lane, 247 Ga. 387, 276 SE2d 644 (1981); Stirling, 189 Ga.App. 283, 375 SE2d 302 (1989)].

14.18 Delegated Authority From Superior Court - A judge of superior court may by written order delegate a magistrate to set bonds within the magistrate's county in cases otherwise required to be set by superior court except in cases where death or life imprisonment may be imposed [OCGA 17-6-1(h)]. The order is good for a year unless revoked.

14.19 Restriction on recognizance bonds (Pretrial release programs)[OCGA 17-6-12]: Recognizance bonds are permitted except in certain "bail restricted offenses."

A. "Bail restricted offenses" are the following felonies: Murder or felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, aggravated sexual battery, aggravated assault, aggravated battery, hijacking a motor vehicle, aggravated stalking, child molestation, enticing a child for indecent purposes, pimping, robbery, bail jumping, escape, possession of a firearm or knife during the commission of or attempt to commit certain crimes, possession of firearms by convicted felons and first offender probationers, trafficking in cocaine, illegal drugs, marijuana, or methamphetamine, participating in criminal street gang activity, habitual violator, or driving under the influence of alcohol, drugs, or other...