CRIMINAL CASE PROCESS

Although each jurisdiction and each courtroom operates differently, there is a "general" process or path for a criminal case in Georgia:

Arrest: When a person has been taken into custody by law enforcement (i.e. is not free to leave)

First Appearance: When someone is arrested without a warrant, the arresting agency or sheriff’s department must bring the arrestee before a judicial officer within 48 hours of the arrest. When someone is arrested on an arrest warrant, the arrestee must be brought for a judicial officer within 72 hours of the arrest. At that first appearance hearing, the judicial officer will usually read the charges against the arrestee, inform him of his right to remain silent and his right to an attorney, and often determine bail amount, if any, and whether the arrestee can afford an attorney or needs one appointed to him. After an arrestee gets out on bail, they will receive notice of an arraignment court date, which is another first appearance-type court date.

Bond: A criminal bond is a financial guarantee to ensure the appearance of an individual charged with a crime until the case is dismissed or otherwise disposed of. If an individual is released on bond and does not appear in court, their bond will be forfeited and a warrant will be issued for their arrest. Additionally, if an individual is released on bond through a bonding company and does not appear in court, that individual may also face felony “bail jumping” charge.

Purpose of Bond: Historically, the purpose of bond was to allow individuals accused of crimes the opportunity to carry on with their lives while they await resolution of their cases by securing their appearance in court with “collateral”. It was never meant to be a pretrial punishment, considering the law deems accused persons innocent until proven guilty. Depending on the nature of the criminal charges, an individual may or may not, by law, have a right to bond. Bail cannot be refused in misdemeanor cases. Where an individual has a previous serious violent conviction and is now charged similarly, there is a rebuttable presumption against bond.
Bond conditions: To ensure the safety of witnesses and the community, courts are permitted to impose additional conditions of bond like stay away from the incident location, the victim, etc.
Setting Bond: Judicial officers have sole discretion to set bond amounts. For less serious offenses, jurisdictions often have a set “bail schedule” at the jail that provides bail amounts for common charges and ways to quickly “bond out” a loved one.
Factors Considered at Bond Hearing: When criminal charges are more serious or require a more in-depth review of the circumstances, judicial officers in Georgia consider the following:

the likelihood that the individual will commit felonies pending trial
whether the individual is a flight risk or whether the individual has ties to the community
concerns about witness intimidation and obstruction of law enforcement
the safety of the community if the individual were to be released.

Bond revocations: If an individual violates the terms and conditions of their bond, a prosecuting attorney can move to revoke the person’s bond. Thereafter, there will be a court hearing and the judge will hear evidence as to the violation and determine whether to revoke bond based on the violation. If the judge revokes bond, the individual will be incarcerated pending new bond being set or disposition of the case. If the judge revokes bond, bond is forfeited on the civil side as well.

Arraignment: When someone’s appearance is requested to answer to criminal charges before a judicial officer. In felony cases, an arraignment occurs only after the prosecutor brings formal charges through accusation and/or by way of a Grand Jury indictment. In this sense, an individual can be arraigned more than once. The purpose of an arraignment is to make sure an individual is aware of the charges against him, his right to counsel and determine whether an individual is pleading not guilty, guilty or otherwise. At an arraignment, the issue of bond is often addressed when an arrestee is still in custody at the time of his arraignment.

Motions: If motions have been filed on behalf of a defendant, there will likely be a motions hearing date set sometime after arraignment. At motions hearings, the attorneys will argue pre-trial motions, like motions to suppress evidence and dismiss charges for constitutional violations. Sometimes, judges set motions hearings for the same days as trial.

Pre-Trial Conference: This is an opportunity for the prosecutor and defense to reach a resolution prior to trial. Often times, the parties will informally present sentencing recommendations and recitations of the facts to a judge to get a better idea of how the judge would sentence the individual if he entered a guilty plea. If no resolution can be reached, the case will be set for a trial.

PRE-TRIAL SENTENCING CONSIDERATIONS

It is proper for judges to be more lenient on sentencing when a defendant enters a guilty or nolo contendere plea and “where the interests of the public in the effective administration of criminal justice are thereby served.

Here is what judges are instructed to consider:

Whether, by entering a plea, the defendant has aided in ensuring prompt and certain application of correctional measures
Whether the defendant has acknowledged guilt and shows a willingness to assume responsibility for criminal conduct:
Whether a lenient sentence will make possible alternative correctional measures, which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment or will prevent undue harm to the defendant
Whether the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;
Whether, by entering a plea, the defendant has aided in avoiding delay due to crowded dockets and has increased the probability of prompt and certain application of correctional measures to other offenders

Probation + Probation Issues

When a person receives a probationary sentence, they are assigned to a probation officer, who will monitor their progress as they complete their sentence. Probationary sentences can be imposed pursuant to a plea or post-trial sentencing.

Probationers are often required to report on a monthly basis to their probation officers. And, depending on the terms of the probationers’ sentence, the probationer may have to pay fees and fines, complete court-ordered classes, perform community service, and pass drug tests at each report/visit. If a person does not comply with probation, a warrant can be issued for their arrest. It is my advice to strictly adhere to the conditions of probation to avoid further negative run-ins with the law. Probation is often a trap for people because people forget that they are basically “in custody” even though they are physically free. They must abide by all of the probationary rules or else they can end up back in jail for the duration of their probationary sentence.

A probationer can violate probation a few different ways. Here are the ways:

A technical violation is when you are alleged to have violated a technical condition of your probation, such as paying restitution, fines or court costs, completing community service, meeting with your probation officer, not leaving the jurisdiction, etc.
A special condition violation is when you are alleged to have violated a special condition of probation, such as having no contact with the victim, earning a GED, etc. Any condition of probation can be deemed a special condition of probation.
A substantive violation occurs when you are arrested because you have committed a new criminal offense while on probation.

If and when a probation officer believes their probationer has violated probation, they can allege said violation to the court and petition for the issuance of an arrest warrant. An arrest warrant for a violation of probation (VOP) usually has a "no bond" provision, meaning that unless you retain an attorney to resolve your case quickly or obtain a bond, you may be sitting in jail for weeks or months until your probation violation case is heard in court and/or resolved.

At a hearing for a probation violation, there is no right to a jury trial and the burden of proof is merely a preponderance of the evidence (as opposed to the "proof beyond a reasonable doubt" standard required for a criminal jury trial). As a result, prosecutors may have a much easier time winning a violation of probation hearing, as their standard of proof is so low. If the court determines a probationer has violated terms of their probation, the court has a number of sentencing options depending on the nature of the violation and the length of the probationary sentence.

Here are some of the punishments a court can impose upon the finding of a probation violation:

Incarceration for some, if not all, of the remaining probationary sentence
Additional months on probation
Imposition of additional community service, fines, classes, etc.

It should be noted that the court is required to review each allegation of violation on a case-by-case basis to determine under the particular facts and circumstances of the case, whether a particular violation is willful and substantial by the greater weight of the evidence. That is the standard: whether a violation of probation was willful, deliberate and substantial. To ensure the best result possible, it would be best to consult with an experienced attorney to discuss possible defenses to alleged probation violations. At Kaufman Law Firm, we handle probation violations for misdemeanors and felonies in counties throughout the State of Georgia.