The criminal division of Stearns-Montgomery & Proctor handles misdemeanor and felony criminal defense, assault, battery, drug possession, drug trafficking, domestic abuse, DUI-DWI, theft, and traffic offenses. Find valuable information and resources below regarding Georgia criminal proceedings.
Criminal Time Frames
Pre-arrest Hearing: is when an individual goes to magistrate court and files a criminal proceeding against another individual. The person who allegedly committed the crime is served with the complaint/allegations and is ordered to court to defend himself or herself. The judge listens to evidence and determines whether it is more probable than not that the person committed the crime. If the judge makes this determination, the person is arrested in court and booked.
Bond Hearing: the defendant is entitled to a bond hearing within 72 hours of arrest. If no bond is set or it is set too high, the defendant can petition for another bond hearing. This is oftentimes done to not only attempt to get the client out of jail, but also to gain a better understanding of the case before arraignment.
Probable Cause/Preliminary Hearing: when a defendant is being held in jail either without bond or with a bond that they cannot make, they can petition the court for a probable cause/preliminary hearing. Typically the hearings are held before a magistrate court and the State calls the arresting or investigating officer as the one and only witness. The burden of proof for the State is more probable than not that the person committed the crime. If the judge makes this determination, the defendant will be bound to either superior court (to the grand jury) or state court.
Grand Jury: A panel of 20-24 citizens of the county. One of their functions is to hear evidence on criminal felony cases and determine whether there is probable cause to issue an indictment, which is the document that states what the formal charges are against a defendant. The grand jury only hears evidence on felony cases, but not all felony cases. If the defendant is detained in jail, has not had a probable cause/preliminary hearing, and is charged with a felony, he or she is always entitled to grand jury indictment. However, if he or she is out on bond and if the defendant is charged with certain felonies as listed in O.C.G.A.17-7-70.1, he or she is not entitled to grand jury indictment; the case will be drawn as a felony accusation.
Arraignment: This is the court proceeding whereby the defendant finds out what he or she has been formerly charged with by the prosecutor. This is an extremely important date! All motions must be filed prior to the arraignment date! In certain jurisdictions, arraignment can be waived; however the waiver of arraignment must be served before the arraignment date (not on the arraignment date) to avoid having to appear in court, and the motions must still be filed before arraignment. If the defendant does not waive, at the arraignment the defendant can request that the charges be read to him or her in open court; however, the standard procedure is to get a copy of the charges from the prosecutor. The defendant then enters a plea of guilty or not guilty. In some cases, there may already be a plea agreement worked out (a negotiated plea) or the attorney may be able to work one out at the arraignment.
Plea Hearings: This is when the defendant enters a guilty plea (or some alternative, such as Nolo). Different jurisdictions and judges handle guilty pleas in different ways; however the standard guilty plea consists of the defendant being told what the charges are that he or she is entering a plea to and the maximum sentence he or she can receive for those charges, and the sentencing recommendation being made; they are told of their constitutional rights; the judge is given a brief statement of facts that support the charges the defendant is entering a plea to. The judge can have some questions or can require the defendant to explain what took place. If the judge accepts the sentencing recommendation, typically the case is finished. In some circumstances, the defendant enters a non-negotiated plea when they want to plead guilty but they do not agree with the prosecutor's recommendation and think the judge can give them something better- this can be extremely risky for the defendant.
Motion Hearings/Pretrial Motions: This is when we go to court and argue over the motions that are pending; for example, a motion to suppress or a motion to sever. Some of these hearings are held on a motion calendar day, and some are heard immediately preceding the start of the trial.
Types of Trial
Bench trial: The defendant can chose to have the judge determine whether they are guilty or not guilty.
Jury trial: Every defendant has the right to have the case tried by a jury of their peers. In felony cases they are entitled to 12 jurors, and in misdemeanors they are entitled to six jurors. Depending on the anticipated length of the case, alternates can be chosen.
Pre-sentence investigation: The defendant or the State can request a pre-sentence investigation, which is usually conducted by the probation office. Once the investigation is complete, the probation office will submit a report to the court that states what their investigation consists of and what sentence they recommend.
Sentencing Hearing: Depending on the severity of the case, the judge may set sentencing for a separate hearing on a date sometime after the conclusion of the trial.
Motion for New Trial: A defendant that has been convicted by the court or a jury can file a motion for new trial with that court. This must be filed within 30 days of the sentencing order.
Habeas Hearing: Once the defendant is away serving his prison sentence, he or she can file a petition alleging his or her person is being illegally detained and can list basically list all the things that were argued on appeal. This is also a good time for the defendant to complain about the attorney that represented them at trial.
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