Defending Clients At First Appearance Hearings In Cobb County And In The Atlanta-Metropolitan Area
Timeframes That A Person Must Be Brought Before A Judge
Rule 26.1 of the Uniform Rules of the Superior Courts of the State of Georgia states that if a person has been arrested pursuant to an arrest warrant, and that person has not bailed out of custody, that person must be brought before a judicial officer within 72 hours of arrest. In addition, Georgia Code 17-4-26 states:
Every law enforcement officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial officer within 72 hours after arrest. The accused shall be notified as to when and where the commitment hearing is to be held. An arrested person who is not notified before the hearing of the time and place of the commitment hearing shall be released.
Rule 26.1 of the Uniform Rules of the Superior Courts of the State of Georgia states that if a person has been arrested without an arrest warrant, and that person has not bailed out of jail, then that person must be brought before a judicial officer within 48 hours of arrest.
Remedy If Those Timeframes Are Not Satisfied
If a person has been arrested without an arrest warrant and has not been brought before a judge within 48 hours of his arrest, he may petition the court for his release. However, if a judicial officer has issued a warrant after arrest but within the 48-hour period, the arrest is deemed to have been made pursuant to a warrant. Ellison v. State, 242 Ga.App. 636 (2000).
A defendant's only remedy for not being brought to an initial appearance within 72 hours of an arrest pursuant to a warrant may be a civil suit. Failure to grant a timely initial appearance doesn't result in the dismissal of charges or the suppression of evidence. Chisholm v. State, 231 Ga.App. 835 (1998).
The Purpose Of The First Appearance Hearing
A first appearance hearing is a person's first chance to appear before a judge after his arrest. The purpose of the first appearance hearing, essentially, is to inform the accused of the charges against him and to advise him of his basic rights.
Rule 26.1 of the Uniform Rules of the Superior Courts of the State of Georgia states that at the initial appearance, the judge shall:
- inform the accused of the charges;
- inform the accused of his Miranda rights, namely of his right to remain silent and his right to an attorney, either retained or appointed;
- determine whether the accused needs a court-appointed attorney and informs him the process in how to obtain one;
- inform the accused of his right to have a commitment (probable cause) hearing, unless the accused posts bail, which waives his right to have that hearing;
- in the case of a warrantless arrest, make a probable cause determination;
- inform the accused of his right to a grand jury indictment or accusation in felony cases;
- inform the accused when the grand jury will next convene;
- inform the accused of his right to a jury trial;
- inform the accused of his right to waive those rights and plead guilty to the charge(s); and
- set bail unless the offense is only bailable by a superior court judge, and if it is, inform the accused of that.
Right To Counsel
If, at the initial appearance, the defendant exercises his right to counsel, the judge doesn't need to provide a lawyer immediately. But if the defendant exercises that right and no attorney is present, the officer can't initiate any “critical stage” of the proceedings, such as taking a plea. O'Kelley v. State, 278 Ga. 564 (2004).
Until 1963, the U.S. Constitution was not interpreted as guaranteeing an indigent person the right to be represented by an attorney. This interpretation changed with the U.S. Supreme Court decision in Gideon v. Wainwright, 372 U.S. 335 (1963). In this case, the court held that the state must provide an attorney to any indigent person accused of a crime that is a felony. However, the accused may waive the right to have counsel at the initial appearance.
In 1972, the U.S. Supreme Court extended the right established in Gideon to insist that the state provide an attorney to indigent defendants whenever imprisonment is possible, as with felonies and some misdemeanors. Argersinger v. Hamlin, 407 U.S. 25 (1972).