16 Criminal Trial and Sentencing Procedure

16. CRIMINAL TRIAL AND SENTENCING PROCEDURE

WARNING - The defendant is entitled to be present at all critical phases of his or her prosecution. This right is personal to defendant and may only be waived by him or her, not the attorney.

This Chapter does not fully discuss the issues in these cases prior to arraignment, such as issuance of arrest warrants, initial appearance hearings, and commitment hearings. Matters discussed in this Chapter, such as 16.3, Criminal Motions, are not to be considered in the Magistrate Court, except on offenses described in 16.11 and 16.12 where the arraignment occurs in the Magistrate Court.

16.1 MAGISTRATE COURT CRIMINAL TRIAL AND SENTENCING JURISDICTION

16.11 Deposit Account Fraud - Magistrate court has trial jurisdiction if:

1. Offense is a misdemeanor (see 17.15)

2. Committed anywhere within the county (whether in municipalities or unincoporated part of county)

16.12 Other Misdemeanor Jurisdiction - CHECKLIST OCGA 15-10-2601 1. Offense took place in unincorporated portion of county,

2. One of these enumerated offenses:

Criminal trespass OCGA 16-7-211:

Marijuana possession, less than an ounce [OCGA 16-13-2, -30];

Shoplifting, $500.00 or less [OCGA 16-8-141;

Furnishing alcoholic beverages to a person less than 21 [OCGA 3-3-23]:

Purchase or possession of alcoholic beverages by a person less than 21 OCGA 3-3-231.

3. Jurisdiction is concurrent with state and superior courts.

16.13 Warrant/Accusation Procedure - CHECKLIST

1. Warrant docketed.

2. Delivered to law enforcement officer for service.

3. Defendant arrested and posts bond.

4. Defendant brought before Court for appearance and commitment hearing if unable to make bond OCGA 17-4-26, URMC §§ 25.1, 25.2].

5. Accusation must be drafted by prosecuting attorney [OCGA 17-7-71]. Prosecutions for offenses covered by OCGA 15-10-260 (see 16.12 above) may proceed on a warrant; but in view of the lack of experience with warrants as charging documents and the need to survive possible attack through demurrer, etc., it is recommended that accusations be drawn by the prosecuting attorney in these cases also.

6. The prosecuting attorney of the court in which the case would have been tried if a demand for removal had been made shall be responsible for the prosecution of the case in the magistrate court [OCGA 15-10-202(e)].

7. Calendar made up from prepared accusations.

8. Letter to defendant by Clerk to attend calendared arraignment (minimum of 5 days before arraignment and copy to surety on bond) [OCGA 17-7-91].

16.14 Citation Procedure

A. Bad Checks

1. Prosecutions by citation for deposit account fraud are commenced by the completion and signing of the citation by the judge or clerk of the magistrate court. Each citation is based upon an affidavit of an arrest warrant, identifies the offense charged, and shall state the time and place in which the accused is to appear at trial. [O.C.G.A. 15-10-202]

2. Citation delivered to law enforcement officer and defendant personally served with citation and summons scheduling appearance before the magistrate (no bond or arrest).

B. Alcohol possession - officer may issue citation or summons (may demand license at the same time) for possession of alcohol under 21 if Defendant does not appear intoxicated [OCGA 3-3-23.1(d-e)].

C. Other cases - Citation issued by police officer or by court and served upon the defendant [City of Peachtree City v. Shaver,276 Ga. 298; Beaman v. City of Peachtree City, 256 Ga.App. 62, 567 S.E.2d 715 (2002)].

Prosecution for misdemeanor violations authorized by this article (O.C.G.A . 15-10-260) may proceed by citation, summons, arrest, citation and arrest, by arrest warrant, or by accusation as provided in O.C.G.A. 17-7-71. An attorney designated by the county governing authority, may act as the prosecuting attorney of the magistrate court in proceedings under this article. [O.C.G.A. 15-10-262].

UTCs have long been held to meet the minimum requirements of accusation and thus are recommended as a safe form to use for citations but should be supplemented with a list of witnesses at arraignment.

If an arrest is made, it is recommended that it be followed with an arrest warrant instead of a citation, since a warrantless arrest followed by a warrant obtained from the court is the most clearly acceptable justification for holding a defendant in custody and accepting bond.

When Defendants remain in custody, they must be brought before the court within a reasonable time not to exceed 48 hours for a court determination of the probable cause for continued detention. (See 11.22 above.)

D. Calendar is prepared from citations issued and returned by law enforcement officers. Prosecutor prepares accusations.

E. If defendant fails to appear in answer of calendar call, bench warrant issues for arrest and magistrate sets a bond on same, unless there is a forfeiture of a cash bond, see 16.15 below.

16.15 Cash Bonds - Deposit Account Fraud Cases [OCGA 15-10-203]; Other state offenses [OCGA 15-10-260, see 16.12 for list].

A. Procedure

1. Chief Magistrate may by written order establish a schedule.

2. Bad checks - Must cover minimum fines in OCGA 16-9-20 and restitution in full amount of check.

3. May not require forfeitable cash bond.

4. Failure to appear acts as guilty plea; if accepted, forfeiture of bond is sentence and bars further prosecution.

5. At time of nonappearance, Court may reject cash bond forfeiture:

• hold monies in registry of Court pending outcome of case;

• serve Defendant with citation for set future appearance;

NOTE - OCGA 15-10-202 Deposit Account Fraud violations may proceed by arrest, an accusation, or by citation. Citations are to be personally served upon the accused. If prosecution is by citation, the accused shall not be arrested prior to the time of trial. However, any defendant who fails to appear for trial shall be arrested thereafter on the warrant and required to post bond for his future appearance.

• upon failure to appear, may issue bench warrant.

B. Disadvantages to Cash Bonds - Other than Bad Checks

1. Illegal sentences - Shoplifting (OCGA 16-8-14) requires minimum sentences based on the Defendants record:

2^nd Offense - $500 minimum, 3^rd Offense - 30 days in jail, 4^th and subsequent offenses - felony - no magistrate court jurisdiction.

2. License suspension interaction - a marijuana conviction requires driver's license suspension by operation of law [OCGA 40-5-75]. Defendants suspended status unknown to them creates thorny legal issues with respect to Driving with a Suspended License and may mean they will be convicted of other misdemeanors without any criminal intent. Defendant loses opportunity to request nolo plea thus avoiding suspension.

3. Inappropriate sentences:

One size doesn't fit all. A written schedule would not take into account the factual determinations of each case;

Defendants past record - written schedule does not allow consideration of Defendants record;

Defendants future record - there is no constitutional waiver of rights with these forfeitures; thus, they could not be considered for future sentence enhancements - this is particularly true in context of shoplifting;

Marijuana possession and possession of alcohol charges usually should have alternative conditions other than fines such as: drug evaluation, alcohol education, etc.

4. Criminal trespass - many of these cases are domestic cases with possibilities of danger to victims which require individualized consideration; Bond and sentence requirements should usually require remaining away from the property and victim.

16.16 Citations: STATUTES

Furnishing Alcohol to Minors

OCGA 3-3-23 contains 5 subparagraphs describing offenses. The grant of jurisdiction in 15-10-260 to the magistrate court tracks the language of the first two paragraphs as apparently separate grants of jurisdiction and not the last three, leaving some doubt over jurisdiction over cases alleging violations of those subparagraphs.

Procedure and penalties upon violation of Code Section 3-3-23

OCGA 3-3-23.1 provides the punishments. For "furnishing," 1^st offense is a misdemeanor, 2^nd offense is a high and aggravated offense ($5000 fine and eligibility for good time reduced). For "possession underage," 1^st offense maximum punishment is $300 and six months, with a driver's license suspension. However, there is a special conditional discharge plea similar to possession of marijuana where the court can withhold adjudication of guilt dependent upon completion of an alcohol program. 2^nd offense is a general misdemeanor (1 year, $1000). The Court may also order completion of a DUI risk reduction production and impose contempt (20 days, $300 fine) for failure to complete.

Prosecution may proceed on citation, summons or accusation.

Magistrate Jurisdiction of Misdemeanors

OCGA 15-10-260(b) limits magistrate court jurisdiction to unincorporated areas of the county for misdemeanor marijuana possession, shoplifting, refund fraud, criminal trespass, underage possession of alcohol, and furnishing alcohol to person under 21.

Selection of Venue

OCGA 15-10-260(d) makes jurisdiction in these cases concurrent in magistrate court and other courts. This probably leaves the selection of the forum to the prosecutor.

Minor Permission Not Allowed

OCGA 16-7-21( c) (criminal trespass) was added in 2001 to provide that a minor cannot give permission to enter property after his or her parent or guardian has forbidden entry.

Conditional Discharge of Possession of Controlled Substance First Offense

OCGA 16-13-2(a) permits a special plea when a person has not previously been convicted of a drug charge. Upon successful completion of conditions, including treatment which can last up to three years, defendant is discharged and case dismissed without adjudication of guilt, a plea under this provision requires permission of court [Owens. 135 Ga.App. 497, 218 S.E.2d 168 (1975)].

Magistrate Court Jurisdiction of Misdemeanor Marijuana Possession

OCGA 16-13-2(b) makes...