One of the first issues addressed in a criminal case is pretrial release (also known as bond). As in all criminal cases, the defendant is presumed innocent until proven guilty. As such, the defendant is entitled to have a reasonable bond set in all misdemeanor cases. In felony cases, a defendant is also entitled to a bond unless the state can show that the Defendant
- is a significant risk of flight.
- is a significant risk of danger to persons or property in the community.
- is a significant risk of committing any felony pending trial.
- is a significant risk of intimidating any witnesses in the case.
If the State can demonstrate just one of these factors, then the judge can deny bond. While the burden of proof in the hearing is placed on the state, the defendant is tasked with the initial “production” of evidence relating to ties to the community. In Georgia, magistrate judges give most bonds. However, there are certain serious charges for which only a superior court judge is authorized to grant bonds. These include primarily:
- Aggravated Sodomy
- Armed Robbery
- First Degree Home Invasion
- Aircraft Highjacking and Automobile Highjacking in the First Degree
- Aggravated Child Molestation
- Aggravated Sexual Battery
- Sale, Manufacture, or Distribution of Drugs
- Aggravated Stalking
If a person has been charged with one of these crimes, only a superior court judge can grant bond.
In Georgia, bond is usually set within the first 24 to 72 hours after a person is incarcerated in what is known as the initial or first appearance. People charged with misdemeanors or with low level felonies (with little or no criminal history) usually get a bond at first appearance. If a person does not receive a bond at first appearance, he or his attorney can file a bond motion. If it is the defendant’s first bond motion, statute requires the motion to be heard within 10 days of its filing. At the bond hearing, your attorney can present evidence and make arguments to show that you are not a substantial risk of violating any of the bond factors. This may include calling witnesses or gathering letters to demonstrate a person’s work history, lack of criminal history, and good character in the community.
The most important case in Georgia governing bond is Ayala v. State. Ayala explains that the purpose of bond is to “prevent punishment before a conviction and to secure the appearance of the person in court for trial.” Ayala v. State, 262 Ga. 704 (1993). Ayala also suggests factors the court should consider when deciding bond, which include, “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.”
Getting released prior to trial or conviction is a fundamental constitutional right. People are not to be punished before a guilty conviction or jailed without cause. The state only has the ability to remove those rights under certain conditions. Contact an experienced attorney today who can protect your rights and work to get you released from jail prior to trial.