After a defendant is arrested, he will want to get out of jail on bond. Defendants charged with felonies do not have a right to a bond. Constantino v. Warren, 285 Ga. 851 (2009); Myers v. St. Lawrence, 289 Ga. 240 (2011). However, defendants charged with most felonies are eligible to receive a bond. Bond can be set at the time the arrest warrant is issued and from a magistrate court judge at the first appearance or at the preliminary hearing. O.C.G.A. § 17-7-24.
A defendant charged with the following offenses can only receive bond from a superior court judge: (1) Treason; (2) Murder; (3) Rape; (4) Aggravated sodomy; (5) Armed robbery; (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) Trafficking in drugs; (11) Kidnapping, arson, aggravated assault, or burglary if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary, had previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary, or one or more of the offenses listed in paragraphs (1) through (10) above; (12) Aggravated stalking; and (13) Violations of Georgia Street Gang Terrorism Prevention Act.
A person charged with any offense which is bailable only before a judge of the superior court may file a bond motion in superior court as soon as they are arrested. A Rule Nisi (order to be signed by the judge setting a hearing date) should be attached to the bond motion. Once a bond motion has been filed, the superior court judge notifies the district attorney and within ten days of receiving the motion sets a date for the hearing. O.C.G.A. § 17-16-1 (d). However, there is no remedy if the judge takes longer to set the hearing. Capestany v. State, 289 Ga. App. 47 (2007). The alleged victim is entitled to notice of the date of the bond hearing. The bond hearing in superior court can occur prior to the preliminary hearing in magistrate court.
The prosecutor can still consent to a bond in superior court only cases. The consent order is submitted to the superior court judge for a signature and no hearing is held. Consent bonds happen more often in cases where there is no alleged victim. Prosecutors often refuse to consent to a bond in victim cases even if the victim consents. If an alleged victim does consent to a bond, the prosecutor may ask that the alleged victim be present in court for the bond hearing and indicate his consent to the judge. Affidavits from victims and witnesses may be considered but are not as effective as the presence of the person.
“The purpose of a pretrial bond is to prevent punishment before a conviction and to secure the presence of the accused in court for trial.” Alden v. Satte, 314 Ga. App. 439 (2012); Ayala v. State, 262 Ga. 704 (1993). A defendant enters a bond hearing with a presumption of innocence which allows for the setting of bond. The law favors releasing persons prior to trial. Ayala v. State, 262 Ga. 704 (1993). There is an exception. If the person is charged with one of the seven serious violent felonies: ((1) Murder or felony murder; (2) Armed robbery; (3) Kidnapping; (4) Rape; (5) Aggravated child molestation; (6) Aggravated sodomy; or (7) Aggravated sexual battery) and has already been convicted of a serious violent felony, there shall be an initial finding, called a presumption, that no condition or combination of conditions will reasonably assure the appearance of the person as required or assure the safety of any other person or the community. This presumption can be overcome or rebutted by evidence showing the contrary.
The defendant has no right to be present at a bond hearing and in some jurisdictions, defendants are not transported to court for bond hearings. While a bond hearing is an evidentiary hearing the parties often proceed by proffer. A proffer means each lawyer tells the judge what he or she believes the evidence would be. Cross v. Cook, 147 Ga. App. 695 (1978). Unless there is an objection, evidentiary proffers by the lawyers during the bond hearing are treated as evidence. Maloney v. State, 317 Ga. App. 460 (2012).
The defendant has the initial burden of establishing by evidence or proffer that he has ties to the community and poses no significant risk of fleeing, threatening the community, committing another crime or intimidating witnesses. Evidence of ties to the community include: the defendant's length and character of residence in the community, significant ties with family, friends, or institutions in the community, and employment status and history. The defendant's past history of coming to court is relevant to the risk of flight. The defendant's criminal history is relevant to the risk of committing another crime while on bond. Although the presence of family members in the courtroom is not evidence, Dunn v. Edwards, 275 Ga. 458 (2002), their presence is usually an indicator of ties to the community. Therefore, defense lawyers generally ask family members to come to court to support a defendant's bond request. Likewise, the prosecutor may, but is not required to have the alleged victim come to the hearing to oppose bond. The defendant may also testify at a bond hearing, however, any testimony given without a Fifth Amendment objection is admissible against the defendant at trial. Cowards v. State, 266 Ga. 191 (1996).
Once a defendant meets his initial burden, the burden shifts to the prosecutor to persuade the judge by a preponderance of the evidence that the defendant is not entitled to bond. The prosecutor must show that the judge should deny bond either to secure the defendant's appearance for court or to protect the community. Ayala v. State, 262 Ga. 704 (1993).
The judge then decides whether to set a bond. A judge is authorized to release a person on bond if the judge finds that 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. The judge may grant bond only if he finds that none of the four risks exist. Constantino v. Warren, 285 Ga. 851 (2009). The judge is not supposed to consider the merits (strength or weakness) of the case, the guilt or innocence of the defendant or whether there is probable cause. Craft v. State, 154 Ga. App. 682 (1980).
In setting the amount of bond, the primary factor to be considered is the probability of the appearance of the defendant. Jones v. Grimes, 219 Ga. 585 (1964). Other factors to be considered are the defendant's ability to pay, the seriousness of the crime, the punishment associated with the offense, the character and reputation of the defendant, the health of the defendant, the probability of the defendant appearing, and past forfeiture of other bonds. Howard v. State, 197 Ga. App. 693 (1990); Spence v. State, 252 Ga. 338 (1984). The task of the judge in setting the amount of bond is to place the amount high enough to reasonably assure the presence of the defendant when it is required, and at the same time, to avoid a figure higher than that reasonably calculated to fulfill this purpose, and therefore excessive. Excessive bail is the equivalent of a refusal to grant bail and is unconstitutional. United States Constitution, Amendment VIII. In such cases the defendant may file a habeas corpus petition. Banks v. Waldrop, 272 Ga. 475 (2000); Jones v. Grimes, 219 Ga. 585 (1964); Hernandez v. State, 294 Ga. App. 289 (2008). The pretrial habeas corpus petition cannot raise a claim of ineffective assistance of counsel. Massey v. Lawrence, 284 Ga. 780 (2009).
The defendant can also file a motion to reduce bond. The process and analysis for a bond reduction are similar to those for a bond hearing but the judge decides whether the bond is appropriate or too high.
When a person is given bond prior to a preliminary or commitment hearing and is later bound over to another court for trial, the original bond shall not terminate but shall be valid to provide for the person's appearance at the trial of the case unless the amount of the bond is set higher by lawful authority, in which case new bond shall be posted. OCGA § 17-6-14(a). The bond does not cover any charges with which the defendant is later charged, even though the additional crimes stem from the same events as those for which the defendant was originally incarcerated and given a bond. O.C.G.A. 17-6-14; Rainwater v. Langley, 277 Ga. 127 (2003); Bryant v. Vowell, 282 Ga. 437 (2007); Richardson v. Lawrence, 289 Ga. 149 (2011).
Instead of setting a higher bond, which may prevent a defendant from being released, a judge may impose restrictions on a defendant's behavior. Alden v. State, 314 Ga. App. 439 (2012); Strickland v. State, 300 Ga. App. 898 (2009). Reasonable restrictions are restrictions which have some relation to the offense. Dudley v. State, 230 Ga. App. 339 (1998). These may include prohibiting contact with the alleged victim, requiring the defendant to report to a pretrial supervision program, house arrest, or a curfew. Clarke v. State, 228 Ga. App. 219 (1990); Uniform Superior Court Rule 27. Defendants charged with violating the Georgia Street Gang Act require increased bail, and as a condition of bail cannot have 52contact of any kind or character with any other member or associate of a criminal street gang and, in cases involving a victim, cannot have contact of any kind or character with any such alleged victim or any member of any such victim's family or household. A bond order can include a defendant's waiver of his 4th Amendment rights. Rocco v. State, 267 Ga. App. 900 (2004).
If the judge denies bond, he must explain the reasons for denying bond by setting forth findings of fact. Lane v. State, 247 Ga. 387 (1981). A defendant can appeal the denial of bond through the interlocutory procedures set forth in O.C.G.A. § 5-634 (b); Howard v. State, 194 Ga. App. 857 (1990). A defendant can also file a habeas corpus petition. Dakeer v. Warren, 288 Ga. 799 (2011); Constantino v. Warren, 285 Ga. 851 (2009); Hernandez v. State, 294 Ga. App. 289 (2008). A decision to grant or deny bond will not be set aside on appeal unless there has been a flagrant and manifest abuse of discretion. Ayala v. State, 262 Ga. 704 (1993); Hardy v. State, 192 Ga. App. 860 (1999).
A defendant who has been incarcerated for 90 days without an indictment is entitled to a bond even if the case is indicted on the 91st day. O.C.G.A. § 177-50; State v. English, 276 Ga. 343 (2003); Rawls v. Hunter, 267 Ga. 109 (1996). The attorney should immediately file another bond motion. In some jurisdictions when defendants have been incarcerated for 90 days or more without an indictment, the judges will consider a motion to dismiss or indict. If the case is indicted prior to the 90 days the defendant can file a bond motion with the judge who will be handling the arraignment. Although A defendant who has been incarcerated for 90 days is entitled to a bond, bond must be granted only on those charges for which the defendant has been incarcerated for 90 days. If the case is indicted by the grand jury and additional charges are added the defendant is not entitled to a bond on the new charges, even though the additional charges stem from the same events as those for which the defendant was originally incarcerated. Richardson v. Lawrence, 289 Ga. 149 (2011); Bryant v. Vowell, 282 Ga. 437 (2007).
Misdemeanors
According to Georgia law only defendants charged with misdemeanors are entitled to bond as a matter of right. However, conditions can be set on bond in misdemeanor cases and the bond can be revoked. Clarke v. State, 228 Ga. App. 219 (1997). A defendant arrested for family violence without a warrant is not eligible for bond until they are taken before a judge. A person charged with DUI per se may be detained for a period of time up to six hours after booking prior to being released on bond.
Bond Forfeiture
A bond forfeiture occurs at the end of the court day upon the failure of the defendant to appear for court. O.C.G.A. § 17-6-71; Powell v. State, 313 Ga. App. 535 (2012). The bond becomes forfeited and a warrant issues for the defendant's arrest. A notice is sent to the surety or bonding company. A defendant who has missed court due to lack of notice of the court date or for other justifiable reasons can ask the judge to set aside the bond forfeiture. This is done by filing a motion to set aside bond forfeiture.
Revoking a Bond A judge has the power to revoke a bond. Revoking a bond involves the deprivation of liberty. Therefore, the defendant is entitled to due process (notice and an opportunity to be heard) before any revocation. Hood v. Carsten, 267 Ga. 579 (1997).
Pre-Indictment / Post Indictment Bond
A Defendant who is denied bond prior to an indictment being returned is still able to file another bond motion after indictment.