14 Bond

14. BOND

14.1 WHEN MAGISTRATE COURT CANNOT SET BAIL (O.C.G.A. § 17-6-1)

14.11. The following offenses are never bailable before a magistrate and are bailable only before a superior court judge (except as pursuant to OCGA § 17-6-1(h)).

A. Treason

B. Murder

C. Rape

D. Aggravated Sodomy

E. Armed Robbery

F. Home invasion in the first degree

G. Aircraft hijacking and hijacking a motor vehicle in the first degree

H. Aggravated child molestation

I. Aggravated sexual battery

J. Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified as Schedule I or Schedule II (Some common Schedule I drugs: heroin, mescaline, peyote, THC, methaqualone. Some common Schedule II drugs: opium, codeine, morphine, cocaine, methadone.)

K. Trafficking in violation of OCGA § 16-13-31 and § 16-13-31.1 (substances include, but are not limited to: cocaine, morphine, opium, heroin, fentanyl, methaqualone, methamphetamine, amphetamine, MDMA (ecstasy), and marijuana)

L. Aggravated Stalking

M. Violating §16-5-46 (Trafficking of persons for labor or sexual servitude)

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

14.12. The following four offenses are not bailable before a magistrate when Defendant has a prohibited record:

A. Kidnapping

B. Arson

C. Aggravated Assault

D. Burglary in any degree.

If at the time of the alleged kidnapping, arson, aggravated assault, or burglary the defendant had been convicted of, or was on bail, probation or parole for kidnaping, arson, aggravated assault, burglary, or any of the offenses listed in 14.11 A.-K. of this section, the magistrate cannot set bail.

14.13. Magistrates with a written designation from a superior court judge can set bond for some of the offenses in OCGA § 17-6-1(a).

Note: OCGA § 17-6-1 (h) states: “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.”

Offenses not bondable under OCGA § 17-6-1 (h) for which life imprisonment or death penalty may be imposed are: Murder (murder 2^nd degree is bondable); Rape; Aggravated Sodomy (misdemeanor under 16-6-2(d) is bondable); Armed robbery; Aggravated Child Molestation (misdemeanor under 16-6-4(d)(2) is bondable); Aggravated Sexual Battery; Treason; Aircraft Hijacking; Motor Vehicle Hijacking 1^st degree if a previous conviction; Manufacturing, Selling, etc. Schedule I or II controlled substance if previous conviction; Home Invasion 1st degree; Trafficking persons if the victim is under 18 or has a developmental disability.

Offenses not bondable under OCGA § 17-6-1(h) for which life imprisonment or death penalty may be imposed for which the defendant has a prohibited record as described in 14.12: kidnapping if defendant was previously convicted of a “sexual felony” and the victim is less than 14, or kidnapping that involves a ransom or the victim is injured; aggravated assault with intent to rape if defendant was previously convicted of a “sexual felony”.

14.14. Notification of Superior Court of Non-Bondable Status - When a defendant is brought before a Magistrate for first appearance and it is a case requiring bond to be set by Superior Court, the Magistrate must notify Superior Court of such 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)].

14.2 WHEN MAGISTRATE COURT MUST DEFER THE SETTING OF BAIL

Defendants on probation or parole charged with a new felony or misdemeanor involving physical injury, attempted physical injury, or terroristic threats "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.

14.21 OCGA § 17-10-1 - Checklist

Magistrates may 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, an attempt to commit physical injury, or terroristic threats?

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 [O.C.G.A. § 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. 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.

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.

14.22 OCGA § 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 OCGA § 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

14.3 WHEN MAGISTRATE COURT MUST SET BAIL

14.31 Failure to indict within 90 days.

Any person who is arrested for a crime and not indicted or brought before the grand jury within 90 days from the date of arrest may not be refused bail. O.C.G.A. Section 17-7-50. Therefore, as a matter of law a bond must be set upon request after the expiration of the 90-day period.

NOTE: Offenses for which magistrates are prohibited from setting bond pursuant to OCGA § 17-6-1 (a) are still not bondable by the magistrate court even after the 90 days.

14.32 Misdemeanors are Initially Bailable as a Matter of Right.

For new charges, at no time shall a person charged with a misdemeanor be refused bail, and a court shall not impose excessive bail. OCGA § 17-6-1(b)(1).

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 a family violence case, if an officer makes an arrest without a warrant pursuant to OCGA § 17-4-20, defendant must be brought before judge to set bond pursuant to OCGA § 17-4-21. OCGA § 17-6-1 (b)(2)(B). (See 14.42B).

D. Probationers/Parolees charged with a new felony or misdemeanor involving physical injury, attempt to commit physical injury, or terroristic threats. O.C.G.A. § 17-10-1. [Clarke, 228 Ga.App. 219, 491 SE2d 450 (1997)].

NOTE - No bond can be set when felony warrant of arrest issued in another county [Weatherby v. Beavers, 139 Ga. 122, 76 SE2d 853 (1912); Paulk v. Sexton, 203 Ga. 82, 45 SE2d 768 (1947)]; sheriff may be authorized to accept reasonable bond for misdemeanor [OCGA 17-6-2(b) (surety must be approved by sheriff where crime committed); Paulk] unless court has specified otherwise (see 14.24B).

14.4 TYPES OF BONDS PERMITTED:

14.41. Forms of Security Authorized [See URMC 23.3]

Bail may be secured by:

1. Cash - by deposit with sheriff of an amount equal to the required cash bail;

2. Property - by real estate located within Georgia with unencumbered equity, not exempted, owned by the accused or surety, valued at double the amount of bail set in the bond;

3. Recognizance – See Unsecured Judicial Release (UJR)– A release that does not have a dollar amount through secured means and that is on a person’s own recognizance (signature bond) or for the purpose of entering a pretrial release program, a pretrial release and diversion program, or a pretrial intervention and diversion program. OCGA § 17-6-12.

A. An Unsecured Judicial Release can be issued by an elected judge, an appointed judge filling the vacancy of an elected judge, or a judge sitting by...