Key Terms in Georgia Criminal Cases
APPEAL FROM PROBATE AND MUNICIPAL COURTS: Appeals are highly technical matters, and there are different statutes that govern appeals from different types of courts in Georgia. O.C.G.A. 40-13-28 provides one avenue of appeal from municipal and probate courts in “traffic-related” cases.It states:
Any defendant convicted under this article shall have the right of appeal to the superior court. The provisions of Code Sections 5-3-29 and 5-3-30 shall not apply to appeals under this Code section. Otherwise,the appeal shall be entered as appeals are entered from the probate court to the superior court, provided that the defendant shall be entitled to bail and shall be released from custody upon giving the bond as is provided for appearances in criminal cases in the courts of this state. Such bond shall have the same conditions as appearance bonds in criminal cases. The appeal to the superior court shall not be a de novo investigation before a jury but shall be on the record of the hearing as certified by the judge of that court who presided at the hearing below.
ARRAIGNMENT: After arrest, if a person has not been released from jail on bond, they will be entitled to a preliminary hearing. If the person has been released from jail on bond, their first court appearance will be at an arraignment. At the arraignment, the charges against the person are formally read, and one enters his or her plea of guilty or not guilty.
O.C.G.A. 17-7-93 provides the statutory basis for the arraignment stage of a criminal case in Georgia. It states:
(a) Upon the arraignment of a person accused of committing a crime, the indictment or accusation shall be read to him and he shall be required to answer whether he is guilty or not guilty of the offense charged, which answer or plea shall be made orally by the accused person or his counsel.
(b) If the person pleads
"guilty," the plea shall be immediately recorded on the minutes of
the court by the clerk, together with the arraignment; and the court shall
pronounce the judgment of the law upon the person in the same manner as if he
had been convicted of the offense by the verdict of a jury. At any time before
judgment is pronounced, the accused person may withdraw the plea
of "guilty" and plead "not guilty"; and the former plea
shall not be admissible as evidence against him at his trial.
(c)
In
addition to any other inquiry by the court prior to acceptance of a plea of
guilty, the court shall determine whether the defendant is freely entering the
plea with an understanding that if he or she is not a citizen of the United
States, then the plea may have an impact on his or her immigration status. This
subsection shall apply with respect to acceptance of any plea of guilty to any
state offense in any court of this state or any political subdivision of this
state.
ACCUSATION: This is the
document that the prosecutor uses to specifically identify each specific crime
allegedly committed by the defendant. In DUI cases, the accusation typically
consists of multiple “counts.” Each written count contains a separate charge
alleged against the defendant. The
“counts” state (in very general terms) where, how, and when each offense was
allegedly committed. In a DUI case, a person might be accused in alternative
“counts” of an accusation with (1) DUI-Alcohol (Less Safe-Alcohol), (2) DUI-Per
Se (driving with an blood-alcohol level in excess of the state’s legal limit),
(3) DUI-Drugs (Less Safe-Drugs), (4) DUI-Toxic Vapors and/or (4) DUI-Alcohol and
Drugs.
O.C.G.A. §
(a) In all misdemeanor cases, the defendant may be tried upon an
accusation framed and signed by the prosecuting attorney of the court. The
accusation need not be supported by an affidavit except in those cases where
the defendant has not been previously arrested in conjunction with the
transaction charged in the accusation and where the accusation is to be used as
the basis for the issuance of a warrant for the arrest of the defendant.
(b)
(1) In all misdemeanor cases arising out of violations of the laws of this
state, relating to (A) the operation and licensing of motor vehicles and
operators; (B) the width, height, and length of vehicles and loads; (C) motor
common carriers and motor contract carriers; or (D) road taxes on motor
carriers as provided in Article 2 of Chapter 9 of Title 48, the defendant may
be tried upon the uniform traffic citation and complaint provided for in
Article 1 of Chapter 13 of Title 40.
(2) In all misdemeanor cases arising out
of violations of the laws of this state relating to game, fish, or boating, the
defendant may be tried upon the summons provided for in Code Section
(c) Every accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct.
(d) An accusation substantially complying with the following form shall in all cases be sufficient:
IN THE _____ COURT
OF
On behalf of the people of the State of
Georgia, the undersigned, as prosecuting attorney for the county and state
aforesaid, does hereby charge and accuse (name of accused) with the offense of
_____; for that the said (name of accused) (state with sufficient certainty the
offense and the time and place it occurred) contrary to the laws of this state,
the good order, peace, and dignity thereof.
/s/ __________________________
(District attorney)
(Solicitor-general)
(e)
If there should be more than one count, each additional count shall state:
The undersigned, as prosecuting attorney,
does further charge and accuse the said (name of accused) with the offense of
_____ (the offense as before); for that the said (name of accused) (state with
sufficient certainty the offense and the time and place it
occurred), contrary to the laws of this state, the good order, peace, and
dignity thereof.
(f)
Prior to trial, the prosecuting attorney may amend the accusation, summons, or
any citation to allege or to change the allegations regarding any offense
arising out of the same conduct of the defendant which gave rise to any offense
alleged or attempted to be alleged in the original accusation, summons, or
citation. A copy of any such amendment shall be served upon the defendant or
his or her counsel and the original filed with the clerk of the court. On
motion, the court shall grant the defendant a continuance which is reasonably
necessitated by an amendment. If any additional charges against the defendant
are made the judge shall advise the defendant that he or she has an automatic
right to a continuance.
BAIL: In order to be released from jail after an
arrest, a person must generally “post” cash, a credit card, or real
estate in order to insure that the person will appear in court (as notified)
until the case is concluded. If a person fails to appear in court (after they
have been properly noticed), bail will most likely be forfeited.
BENCH WARRANT: O.C.G.A.
§
A bench warrant is a warrant
issued by a judge for the arrest of a person accused of a crime by a grand jury
or for the arrest of a person charged with a crime who has failed to appear in
court after actual notice to the person in open court or notice to the person
by mailing to his or her last known address or otherwise being notified
personally in writing by a court official or officer of the court of the time
and place to appear or for the arrest of a person charged with a crime upon the
filing by the prosecutor of an accusation supported by affidavit. Every officer
is bound to execute the warrant within his or her jurisdiction, and every
person so arrested must be committed to jail until bail is tendered. Any
judicial officer or the sheriff of the county where the charge was returned may
receive the bail, fix the amount of the bond, and approve the sureties unless
it is a case that is bailable only before some
particular judicial officer.
BOND: In criminal law, a surety bond puts up
money or property that assures the appearance of the defendant or the payment
of the defendants bail if the defendant fails to appear. The person who agrees
to be the “surety” is financially obligated to pay the bond if the person fails
to appear. The failure to appear will typically cause the judge of the court
requiring attendance to issue a “bond forfeiture” order, as well as a warrant
for the defendant’s arrest.
BURDEN OF PROOF: This
refers to the evidentiary obligation of a party to legal proceedings having to
“carry” the burden to prove his or her allegations during a trial. Different
levels of proof are required depending on the type of case. This phrase is
employed to signify the duty of proving the facts in dispute on an issue raised
between the parties in a cause. In criminal cases, as every person is presumed
to be innocent until the contrary is proved, the burden of proof rests on the
prosecutor to prove each and every element of the charges. After the prosecutor
has presented such evidence, the defendant may need to rebut (challenge) the
prosecutor’s evidence, as a practical matter, even though the burden of proof
in criminal cases never shifts to the defendant.
FIELD SOBRIETY TEST:
Various roadside exercises that are used by law enforcement officers to
determine whether or not a person is likely to have an
alcohol content at or above the legal limit. Although police routinely
do not advise of the voluntary nature of these evaluations, field sobriety
evaluations are optional in almost all jurisdictions. Most experienced
attorneys advise their clients against attempting the evaluations due to
inconsistent officer training, defective administration of the evaluations, as
well as the subjective nature of these exercises.
JURISDICTION: The right
and power to interpret and apply the law to a particular case. One definition
relates to the authority of a court to hear and rule upon certain types of
cases. This is sometimes called “subject matter jurisdiction.” This term can
also refer to a limitation on the extent of authority or control. By way of
example, the law in some states limits the place or geographic area that a
police officer can arrest a person to being the area where a crime is committed
and observed within the officer’s “jurisdiction” (e.g., the City Limits).
MOTION: An application to
the court requesting action or some type of “relief” in a pending case.
Usually, a motion addresses an issue that is within the court’s discretion to
order some form of guidance as to how the trial will proceed. The judge may
also order some act to be done or not done by another litigant or participant
at trial. In terms of pre-trial motions, these are challenges to certain
evidence being presented to in the jury (or judge) due to some legal challenge
that requires that evidence either be allowed to be used at trial or that it
not be considered.
O.C.G.A. § 17-7-110 states:
All pretrial motions,
including demurrers and special pleas, shall be filed within ten days after the
date of arraignment, unless the time for filing is extended by the court.
MOTION TO SUPPRESS: O.C.G.A.
§
(a) A defendant aggrieved by
an unlawful search and seizure may move the court for the return of property,
the possession of which is not otherwise unlawful, and to suppress as evidence
anything so obtained on the grounds that:
(1) The
search and seizure without a warrant was illegal; or
(2) The search and seizure with a warrant
was illegal because the warrant is insufficient on its face, there was not
probable cause for the issuance of the warrant, or the warrant was illegally
executed.
(b) The motion shall be in writing and
state facts showing that the search and seizure were unlawful. The judge shall
receive evidence out of the presence of the jury on any issue of fact necessary
to determine the motion; and the burden of proving that the search and seizure were
lawful shall be on the state. If the motion is granted the property shall be
restored, unless otherwise subject to lawful detention,
and it shall not be admissible in evidence against the movant
in any trial.
(c) The motion shall be made only before a
court with jurisdiction to try the offense. If a criminal accusation is filed
or if an indictment or special presentment is returned by a grand jury, the
motion shall be made only before the court in which the accusation, indictment,
or special presentment is filed and pending.
(a) A person shall not drive
or be in actual physical control of any moving vehicle while:
***
(5) The person's alcohol concentration is
0.08 grams or more at any time within three hours after such driving or being
in actual physical control from alcohol consumed before such driving or being
in actual physical control ended;
UNIFORM
CITATION (OR UNIFORM TRAFFIC CITATION): A statutory form of a handwritten
or digitally created charging document generally used by police officers to
accuse a citizen of certain types of offenses. In some states, this
method allows a law enforcement officer to issue a traffic citation on certain
misdemeanor or traffic infraction cases. Typically, uniform citation ns are
authorized for traffic offenses and other types of violations that are
considered less serious offenses. Some states allow the prosecution of DUI-DWI
cases on these citations, without the need for the prosecutor to file a formal,
computer-generated (or typewritten) accusation or “information” setting forth
the charges.
STANDARD OF PROOF: The
amount of evidence which a prosecuting attorney in a criminal case must present
in a trial in order to win is called the standard of proof. In criminal cases
in
PRELIMINARY HEARING: Synonymous
with preliminary examinations; the hearing given before a magistrate or
other judge to determine whether a person charged with a crime should be held
or bound over for trial. The level of proof required to be shown at this level
of criminal proceedings is very low since the prosecutor typically will not
have fully investigated the case. Often, if a person is released on bond, no
right to such a hearing exists, or is waived (given up).
PLEADING: A formal
statement, generally written, propounding the case of action or the defense of
a legal case. Pleadings may also have specific titles such as “Motion to
Suppress,” “Motion to Limine” or “Discovery Motion,”
and these all classified as “pleadings”.
PROBABLE CAUSE: A legal
term of art that means a constitutionally prescribed standard of proof or (in
the alternative) may refer to a reasonable ground for belief in the existence
of certain facts. Probable cause is the burden of proof necessary for insurance
of an indictment or issuance of an accusatory document (i.e.,
an information or an accusation).
SOLICITOR: Generally, in the State Courts of Georgia, the State is represented by an elected official known as a Solicitor or the Solicitor-General. This person prosecutes people charged with misdemeanor offenses. O.C.G.A. § 15-18-60 provides the authority for the establishment of the office of the solicitor:
(a)(1) Except as otherwise provided in this article, there shall
be a solicitor-general of each state court who shall be elected for a four-year
term and commissioned by the Governor as provided by law. This chapter shall
not apply to a city court where the judges or solicitor is appointed by the mayor
of a city.
(2) Except as provided in paragraph (3) of this subsection or subsection
(c) of this Code section, any person holding the office of solicitor of a state
court on
(3) Except as provided in subsection (c)
of this Code section, any person holding the office of solicitor of a state
court on
(b) In the event of a vacancy in the
office of solicitor-general of the state court for any reason except the
expiration of the term of office, the Governor shall appoint a qualified person
who shall serve as provided in Article VI, Section
(c)
(1) The General Assembly may by local law provide that the district attorney of
the judicial circuit shall represent the state in all criminal prosecutions
brought in a state court in lieu of creating a separate solicitor-general for
the state court.
(2) Except as otherwise specifically
provided in Article 1 of this chapter, such district attorney shall have the
same duties and authority under this article as any solicitor-general.
(3) The county governing authority may
supplement the compensation and fringe benefits of the district attorney and
any personnel of the district attorney who support the prosecution of criminal
cases in the state court of such county.
(4) Notwithstanding any other provision of
law, if the General Assembly has provided by local law for an assistant
district attorney to be designated or appointed as solicitor of a state court,
such power, duty, and authority to prosecute in the state court is vested in
the district attorney of the judicial circuit in which such county is located,
as provided in this subsection. The provisions of this article shall not affect
the compensation of an assistant district attorney previously designated as a
solicitor of a state court so long as such assistant is assigned to prosecute
criminal cases in the state court.
(d) The General Assembly may by local law
authorize a solicitor-general of state court to represent the state in more
than one county within a judicial circuit. The solicitor-general of a multicounty state court shall be selected as provided by
local law.
PARTIES: The persons who
are actively concerned in the prosecution or defense of a legal proceeding. In
a criminal case, the parties are the State, the
MISDEMEANOR: Offenses
considered less serious than felonies. There are three classes of misdemeanors-
simple, serious, and aggravated. Examples of misdemeanors may include simple
battery (hitting someone), traffic violations, thefts of property not exceeding
a certain value (possibly $500), trespass, and disorderly conduct. Maximum
fines for misdemeanors vary from state, but $5000 is usually an upper limit,
with many states capping fines at $1000. Typically, the longest prison sentence
for being found guilty of a misdemeanor is one year or possibly less.
FELONY: Generally, a
felony is a crime that is considered more severe than a misdemeanor. In
In
Examples of felonies include
murder, kidnapping, manslaughter, burglary, robbery, and certain types of
sexual abuse.
CHARGES: Charges are
simply the allegations made by the state regarding how you allegedly violated
the law. Charges may made
in the form of an indictment, a formal accusation, a UTC or other criminal
complaint form.
PLEA BARGAIN: This term
generally refers to an agreement in a criminal case in which a prosecutor and a
defense attorney (acting on his or her client’s behalf) arrange to settle the
case against the defendant on some negotiated terms and conditions. Typically,
all plea bargains are subject to the consent of the trial judge before whom the
case is pending. The defendant may agree to plead guilty or nolo
contendere in exchange for the prosecutor dropping
some charges or reducing the recommended punishment aspect of the case to a
more favorable level.
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