After the preliminary hearing . . .

This post does not constitute legal advice. This post does not constitute an attorney-client relationship between you and me. Until you retain me, I am not your attorney. Moreover, this post is 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.

What happens to a defendant’s case, after the preliminary hearing?

If a Magistrate Court Judge has found probable cause to bind a case over to either State or Superior Court, one of two agencies for the State will prosecute the case. In the case of a felony offense, the District Attorney’s Office will handle the case, and in the case of a misdemeanor, the Solicitor-General’s Office will handle the case. If a defendant has felony and misdemeanor charges arising from the same event, then the case goes to the District Attorney’s Office.

Are not the warrants against a defendant the official charges against him?

No. Warrants are the legal instrument that gives law enforcement the legal authority to take a defendant into custody. They do not form the official charges that the State (through the District Attorney’s Office or the Solicitor General’s Office) will bring against a defendant.

How does the State bring formal charges against a defendant?

In the cases of misdemeanors, the State can draft an accusation. An accusation is a legal document detailing the charges that the State wishes to bring against a defendant. The State can draft an accusation for certain felony offenses listed in OCGA §17-7-70.1, but only if there was a finding of probable cause either by a judge or by a defendant’s waiver of a preliminary hearing. For all other felonies not listed in OCGA §17-7-70.1, the State has to present the case to the Grand Jury. A defendant can waive his right to a grand jury presentment for any felony offense, except for the offense of murder.

What is the Grand Jury?

The Grand Jury is a group of 16 to 23 citizens picked at random from the county where the alleged crime took place. The State presents evidence to the Grand Jury to persuade them that there is sufficient evidence against a defendant to bring charges against him. To that end, the State prepares a bill of indictment that outlines the charges against the defendant. If the Grand Jury believes that there is sufficient evidence against the defendant, the Grand Jury will denote the bill of indictment as being “True.” If the Grand Jury does not believes such, then they will denote the bill of indictment as being “No.” When a Grand Jury returns a “No” bill of indictment, then the State will one additional opportunity to convince a different group of Grand Jurors that there is sufficient evidence against the defendant. If the State cannot do so, then Georgia law prohibits the State from perusing charges against the defendant.

Is there a time limit as to when the State can bring charges against me?

Yes. It is called the statute of limitations. In most felony cases, the applicable statute of limitations is four years from the date of the commission of the offense. In misdemeanor cases, the applicable statute of limitations is two years. There are exceptions to this general rule both for certain felony offenses, and for certain factual circumstances. I will take the time to discuss these exceptions in a later blog post.

Does the State immediately file official charges against a defendant, after a preliminary hearing?

No. In most cases, the State will take additional time before drafting an accusation or attempting to obtain a “true” bill of indictment from a Grand Jury. During this time, the State will try to supplement the investigation that law enforcement did prior to the defendant’s arrest. In addition, the State will gather the evidence that supports their case and comply it into their file. The reason is that the State will ready to try the case against the defendant, if he makes a demand for a speedy trial.

What should I do during this time?

If you do not have an attorney, you need to hire one immediately. An attorney can help you start preparing your defense and getting your witnesses and evidence together so that your version of what happened can be presented to a jury. If you have an attorney, you need to provide to him everything in your possession to assist your attorney with the presentation of your defense. Failure to do so only hurts your chances of obtaining an outcome that his helpful to you. If you or a loved one has a pending criminal case in Georgia, contact me at 404-585-1377 to schedule an appointment to discuss the case.




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