Bond in Georgia Criminal Cases

Being held in jail prior to a trial or conviction can be demoralizing. Pre-trial incarceration breaks people down. Being held in jail prior to a trial – in some cases prior to even having formal charges pending – can make innocent people give up hope. We understand how vital getting a bond in a criminal case is, and we understand that getting a bond often requires strategic planning and intense preparation.

Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993), is the most important Georgia case addressing the factors that must be addressing in setting pre-trial bond in a Georgia criminal case:

A person charged with the offense of murder may obtain bail only before a superior court judge. OCGA § 17-6-1(a)(2). The purpose of a pretrial bond is to prevent punishment before a conviction and to secure the appearance of the person in court for trial. Roberts v. State, 32 Ga.App. 339, 340-41, 123 S.E. 151 (1924). The standards for determining whether to grant release prior to trial are based on the 1968 American Bar Association pretrial release standards. Lane v. State, 247 Ga. 387, 388, n. 2, 276 S.E.2d 644 (1981). The trial court may release a person on bail if the court finds the person:

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

OCGA § 17-6-1(e). The trial court must explain its reasons for denying bond to assist appellate review. Lane, 247 Ga. at 389, 276 S.E.2d 644. The granting or denial of bail will not be set aside unless there is a manifest and flagrant abuse of discretion. Jernagin v. State, 118 Ga. 307, 308, 45 S.E. 411 (1903).

This court has not addressed whether the state or the defendant has the burden of proof in pretrial bond hearings before a superior court. Neither the Lane opinion nor the law codifying the ABA standards specifies which party has the burden of proof or the evidentiary standard to be applied. See 1982 Ga.Laws 910, § 1.

Because of the phrasing of the statutory language, we conclude that the defendant has the burden of coming forward initially with evidence to show that he or she poses no significant risk of fleeing, threatening the community, committing another crime, or intimidating a witness. This burden of production means that a person charged with murder must present evidence at the bond hearing on factors that indicate roots in the community.² These factors include the defendant’s length and character of residence in the community, employment status and history, past history of responding to legal process, and prior criminal record. See Lane, 247 Ga. at 388, n. 2, 276 S.E.2d 644. Once the defendant meets the burden of production, the state may present *706 evidence to rebut it. Placing the burden of production on the defendant is fair because the accused is the best source of information on his or her community ties.

Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993).

Setting of Bond in Georgia Criminal Cases

For most people charged with a criminal offense in Georgia, the first consideration that must be is: how can I obtain a bond so that I can get out of jail? In Georgia, the setting of bond in criminal cases can vary widely from one county to the next. What is a reasonable bond in one county may be one-half of the cost in an adjacent county. Further, there are some jurisdictions that make getting a bond very difficult. Experienced criminal defense attorneys understand the nuances relating to the jurisdiction in which your case is pending.

In determining how to obtain a bond, your lawyer must first know which court or judge to approach for the setting of bond. There is no much embarrassing event than approaching a magistrate for a bond and finding out that the magistrate does not have jurisdiction to set the bond amount.

Bond in Serious Felony Cases

(a) The following offenses are bailable only before a judge of the superior court:

(1) Treason;

(2) Murder;

(3) Rape;

(4) Aggravated sodomy;

(5) Armed robbery;

(5.1) Home invasion in the first degree;

(6) Aircraft hijacking and hijacking a motor vehicle;

(7) Aggravated child molestation;

(8) Aggravated sexual battery;

(9) Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule I or under Code Section 16-13-26 as Schedule II;

(10) Violating Code Section 16-13-31 or Code Section 16-13-31.1 (sale of some drugs);

(11) Kidnapping, arson, aggravated assault, or burglary in any degree if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary in any degree, had previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary in any degree, or one or more of the offenses listed in paragraphs (1) through (10) of this subsection;

(12) Aggravated stalking; and

(13) Violations of Chapter 15 of Title 16 (this chapter addresses gang activity).

Bond in Georgia Misdemeanor Cases in Georgia

(b)(1) All offenses not included in subsection (a) of this Code section are bailable by a court of inquiry. Except as provided in subsection (g) of this Code section, at no time, either before a court of inquiry, when indicted or accused, after a motion for new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail.

OCGA § 17-6-1. Subsection (g) of OCGA 17-6-1 addresses the availability of appeal (supersedeas) bonds:

The granting of an appeal bond to a person who has been convicted of any other felony offense or of any misdemeanor offense involving an act of family violence as defined in Code Section 19-13-1, or of any offense delineated as a high and aggravated misdemeanor or of any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court.

Amount of Bond in a Georgia Criminal Case

Beyond being essential to the presumption of innocence and the right not to be punished prior to being convicted by proof beyond a reasonable doubt, pre-trial release is essential to the assistance in and development of the defense to your criminal charges. However, O.C.G.A. § 17-7-50 is certainly no guarantee that the amount of the bound actually set by the Court following the expiration of 90 days will actually be reasonable:

Fredy Perez Hernandez and three other men were arrested following the police surveillance of a drug trafficking operation that recovered approximately ninety pounds of cocaine and $725,000 cash. The trial court initially denied Hernandez’s motion for bond; however, after he was incarcerated for more than 90 days without being indicted, the trial court conducted a hearing pursuant to OCGA § 17-7-501 and granted bail in the amount of $1,000,000. On appeal, Hernandez argues that the amount of bail is unconstitutionally excessive and equates to an unlawful refusal to grant bond. We find no error and affirm.

Excessive bail is prohibited by the Georgia Constitution as well as the Eighth Amendment to the United States Constitution. See Ga. Const. 1983, Art. I, Sec. I, Par. XVII; Pullin v. Dorsey, 271 Ga. 882, 525 S.E.2d 87 (2000). “Bail set at a figure higher than an amount reasonably calculated to insure the presence of the defendant is [unconstitutionally] excessive.” (Citations and punctuation omitted.) Mayfield v. State, 198 Ga.App. 252, 252-253, 401 S.E.2d 297 (1990). The trial court’s foremost consideration when fixing the amount of bail should be the probability that the defendant, if freed, will appear at trial. Id. at 253, 401 S.E.2d 297. The defendant bears the initial burden of producing evidence that he does not pose a significant flight risk. See Dunn v. Edwards, 275 Ga. 458(1), 569 S.E.2d 525 (2002). Other factors that the court may consider include the defendant’s ability to pay, the seriousness of the offense, and the defendant’s character and reputation. Id. “[T]he amount of bail assessed is within the sole discretion of the trial court and will not be overturned absent a clear abuse of discretion.” Pullin, 271 Ga. at 882, 525 S.E.2d 87.

The record in this case shows that the trial court was very concerned that Hernandez posed a significant risk of fleeing. Hernandez’s counsel conceded that Hernandez is not a United States citizen, and Hernandez presented no evidence that he was in this country legally. See Dunn, 275 Ga. at 458(1), 569 S.E.2d 525. Likewise, no evidence was presented that Hernandez owned a house or any real property in Georgia. The circumstances surrounding Hernandez’s arrest support an inference that he had access to large amounts of cash, and the crimes for which he was arrested are very serious and carry severe potential consequences.

Although Hernandez did present evidence that he was employed and has a wife and children in Georgia, the trial court was authorized to weigh these factors against the evidence set forth above and then set an amount reasonably calculated to ensure Hernandez’s presence at trial. We cannot say under these circumstances that the amount of bail was excessive or amounted to an abuse of discretion. See Mayfield, 198 Ga.App. at 252-253, 401 S.E.2d 297; Howard v. State, 197 Ga.App. 693, 694, 399 S.E.2d 283 (1990).

Hernandez v. State, 294 Ga. App. 289, 289-90, 669 S.E.2d 434, 435 (2008).