13 Initial Appearance of Defendant
13. INITIAL APPEARANCE OF DEFENDANT
13.1 CONDUCT OF HEARING
13.11 Initial Appearance [URMC § 25.1]: “Immediately following any arrest but no later than 48 hours if the arrest was without a warrant, or 72 hours following an arrest with a warrant, unless the accused has made bond in the meantime, the arresting officer or the law officer having custody of the accused shall present the accused in person before a magistrate or other judicial officer for first appearance.” [See also O.C.G.A. § 17-4-26].
CHECKLIST
A. At the first appearance of the defendant the judge should determine:
1. The defendant's true name;
2. The defendant's age;
NOTE - Juvenile defendants - Unlike arrest warrants (see 11.36C), there is no authority in the juvenile code which has been construed to recognize the authority of courts of inquiry to hold initial appearance or commitment hearings in juvenile cases. Thus, it is questionable whether magistrates have any jurisdiction to such hearings for juveniles, including those which will be tried in superior court as adults. It is recommended that magistrates not conduct such hearings unless designated to act as superior court judges (see 42 U.S.C. 1988(b) for liability for judicial actions clearly in excess of the courts' jurisdiction).
3. The offense charged;
4. The defendant's education;
5. The defendant's ability to speak, understand, read and write English;
6. If the defendant is represented by counsel;
7. If the charge has been read to the defendant;
8. If the defendant wants the charge read aloud;
9. If the defendant understands the nature of the charge.
B. The judge should then inform the defendant of the:
1. Right to representation by counsel;
2. Right to a reasonable time to obtain the services of counsel before a preliminary hearing is held;
3. Fact that counsel will be provided if defendant is determined to be financially unable to retain one;
4. Right to counsel during all questioning;
(See Appendix C5 - RIGHT TO COUNSEL)
5. Right to remain silent;
6. Fact that any statement made by defendant can be used as evidence at hearings or trial;
7. Right to indictment by Grand Jury for most felonies, or to accusation if misdemeanor; if charge is OCGA Chapter 16-8, art. 1 (thefts), Chapter 16-9 (forgery and fraudulent practices), Chapter 16-10, art. 3 (escape and other offenses related to confinement), 16-11-131, 16-13-30, or 40-5-58, inform defendant that if the commitment hearing is waived, expressly or by posting an unconditional bond (see 14.3), prosecution may proceed by accusation [O.C.G.A. § 17-7-70.1]; also state when next Grand Jury meets;
8. Right to a speedy trial and to trial by jury;
9. Right to confront witnesses;
10. Right to call witnesses on own behalf and at no cost;
11. Presumption of innocence;
12. Penalty provided for the crime charged (i.e., whether crime is misdemeanor or felony);
13. Inform accused that commitment hearing may be waived.
C. After having informed the defendant of his/her rights, the judge should ascertain if defendant:
1. Has any questions;
2. Understands right to an attorney;
3. Wishes and is able to provide own counsel;
4. Wants the court to appoint counsel;
5. Wants to proceed without counsel.
See Appendix C5 - RIGHT TO COUNSEL
D. Schedule preliminary (commitment) hearing (if not waived). [OCGA 17-4-26; State v. Godfrey, 204 Ga. App. 58, 418 SE2d 383 (1992)]. Allow reasonable time to prepare and for defense to obtain counsel if desired [OCGA 17-7-24].
NOTE – Magistrate Court has no authority to take a guilty plea expect as provided in O.C.G.A. § 15-10-2 (a) (4), (12) and (14).
E. Set bail, if bailable before Magistrate (See Bail Section, Chapter 14).
Pursuant to O.C.G.A § 17-6-1 (e) (2), when determining bail, 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.
F. State may be represented at hearing by law enforcement officer [see URMC § 25.1]:
1. State agent's authority to petition the court on behalf of the State with regard to a matter within the scope of his or her employment is not unlawful practice of law [...
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