First Appearance Hearing

I plan to write posts about different aspects of the criminal justice system in Georgia. These posts do not constitute legal advice. These posts do not constitute an attorney-client relationship between you and I. Until you retain me, I am not your attorney. Moreover, these posts are going to be general information, and it does not replace the advice and counsel of an attorney that has reviewed the evidence in your case and has investigated the case on your behalf. In plain English, this is just general information; I do not represent you; my posts do not replace your attorney’s advice. With that out of the way, let us begin with the topic of first appearances.

What is a First Appearance?

After a law enforcement officer (the police) arrests a person (defendant) on suspicion of committing a crime, Georgia law requires that said the State of Georgia (the State) present the defendant to a neutral magistrate, at a first appearance hearing. The neutral magistrate is generally is the Magistrate Court Judge, but it can be a Superior Court Judge, as well. In rare cases, it can be a State Court Judge, a Juvenile Court Judge, but this requires an order from the Superior Court Judge giving these judges the authority to conduct such hearings.

After the police have arrested a defendant, the State must present the Defendant to the neutral magistrate within 48 hours of arrest, if the police arrest the defendant without a warrant, and 72 hours, if the police arrest the defendant with a warrant.Failure to conduct this hearing within the required time frame requires that the jail release the defendant. It does not mean that the case against the defendant has been dismissed. The State can still proceed on the case during the applicable statute of limitations. At the first appearance hearing, the neutral magistrate will read to the defendant of the warrant(s) that the police had taken out against him or her, unless the defendant waives the reading of the warrant(s).

Will I get bond at my first appearance?

The next issue that the neutral magistrate will take up at the first appearance is the issue of bond. At its essence, bond allows a defendant to remain free until the trial of his case; bond is a promise by a defendant that he will appear for every court date in regards to his case, instead of him being in jail. There are certain offenses that only a Superior Court Judge can set bond for a defendant, and they are the following:

  1. Treason,
  2. Rape,
  3. Aggravated Sodomy,
  4. Armed Robbery,
  5. Aircraft or Auto hijacking,
  6. Aggravated Child Molestation,
  7. Aggravated Sexual Battery,
  8. Manufacturing, Distributing, Delivering, Dispensing, Administering, or Selling any Schedule I or II controlled substance,
  9. Trafficking in any controlled substance,
  10. Aggravated Stalking,
  11. Violation of the Criminal Gang Act Statute, and
  12. Kidnapping, Arson, Aggravated Assault, or Burglary, only if
  • The defendant has been previously convicted of Kidnapping, Arson, Aggravated Assault, or Burglary, or
  • The Defendant was on probation or parole for Kidnapping, Arson, Aggravated Assault, or Burglary, or
  • The Defendant was on bail for Kidnapping, Arson, Aggravated Assault, or Burglary, or
  • The Defendant was convicted, on probation or parole, or on bail for any of the offenses listed in one through nine.

In addition to the above list, if a defendant is on probation or parole for any offense, and he commits a new felony offense or a violent misdemeanor, then the neutral magistrate will not set bond at the first appearance, but require a hearing where both the State and the defendant’s counsel is present.

If a defendant does not fall into the foregoing, the neutral magistrate can consider the issue of bond. The neutral magistrate will inquire as to whether

  • the defendant has any ties to the community,
  • is the defendant employed,
  • does the defendant have family that he must support,
  • does the defendant pose a risk to the witnesses in the pending case,
  • does the defendant pose a risk of committing additional crimes while out on bond,
  • does the defendant pose a risk to property in the county, and
  • does the defendant pose a risk to himself or to others.

 

The neutral magistrate may not explicitly ask these questions aloud or to the defendant, but he or she will consider them in making a determination of bond. When a defendant is charged with a misdemeanor, he is entitled to a bond, as a matter of Georgia law, but he is not guaranteed a particular bond amount. In addition to setting a bond amount, the neutral magistrate may place special conditions on the defendant’s bond, such as a condition not to have contact with the victim or not to return to a particular location. If the neutral magistrate denies bond, he or she drafts an order specifying the reasons for the denial bond. If the denial of bond is for one of the charges that only the Superior Court can set bond, then neutral magistrate will forward an order to the Superior Court Judge noting this.

What else happens at the first appearance?

The neutral magistrate will advise the defendant of his rights, such as the right to remain silent. In addition, the neutral magistrate will make inquiry as to whether the defendant has counsel, and if the defendant cannot afford counsel, then the neutral magistrate will instruct the defendant to make application for the public defender’s office or will make the determination, if the defendant qualifies for appointed counsel. This is dependent upon the county where the defendant was arrested. The neutral magistrate will tell the defendant of his right to a grand jury indictment in certain felony offenses. Moreover, the neutral magistrate will notify the defendant of when his preliminary hearing is scheduled. What is a preliminary hearing will be the subject of the next post.

If you or your loved one has been arrested with a criminal charge, you need an experience attorney representing yourself or your loved one. Please call me at 404-585-1377 for a free and confidential consultation.

 

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