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.
(Orig. Code 1863, § 4606; Code 1868, § 4629; Code 1873, § 4726; Code 1882, § 4726; Penal Code 1895, § 899; Penal Code 1910, § 920; Code 1933, § 27-210; Ga. L. 1956, p. 796, § 1; Ga. L. 1995, p. 932, § 1.)
Cross references.- Delivery of mentally ill persons, alcoholics, and others to emergency receiving facilities upon apprehension by peace officer, §§ 37-3-41,37-3-42,37-7-41,37-7-42.
Bail in magistrate court felony cases, Uniform Rules for the Magistrate Courts, Rule 23.2.
Initial appearance hearing in magistrate court, Uniform Rules for the Magistrate Courts, Rule 13.
Law reviews.- For article discussing preliminary hearings in felony cases as necessary to satisfy due process requirements, see 12 Ga. St. B.J. 207 (1976). For note, "Bail in Georgia: Elimination of 'Double Bonding' - A Partially Solved Problem," see 8 Ga. St. B.J. 220 (1971). For note, "A 'Critical' Question of State Law: Georgia's Ambiguous Treatment of Initial Appearance Hearings and the Implications of Bail Reform," see 54 Ga. L. Rev. 363 (2019).
JUDICIAL DECISIONSANALYSIS
Person who is arrested and released within the time prescribed by law on an appearance bond is not entitled to a commitment hearing. Watts v. Pitts, 253 Ga. 501, 322 S.E.2d 252 (1984).
Time for holding commitment hearing.
- O.C.G.A. § 17-4-26 requires that a person arrested be brought before a committing judicial officer within 72 hours after arrest, but the statute does not require a commitment hearing within that time; to the extent that the language in footnote 3 of Boyd v. St. Lawrence, 281 Ga. 300 n. 3 (2006), conflicts with this holding, it is hereby disapproved. Tidwell v. Paxton, 282 Ga. 641, 651 S.E.2d 714 (2007).
Failure to hold commitment hearing.
- There was no constitutional error after a magistrate failed to hold a commitment hearing when an accused was brought before the magistrate within 72 hours of arrest. State v. Godfrey, 204 Ga. App. 58, 418 S.E.2d 383, cert. denied, 204 Ga. App. 922, 418 S.E.2d 383 (1992).
Sanction for violating O.C.G.A. § 17-4-62 is that the defendant shall be released and does not require suppression of evidence gathered in the interim. Chisholm v. State, 231 Ga. App. 835, 500 S.E.2d 14 (1998).
Duty of custodians.
- Although the plain language of O.C.G.A. §§ 17-4-21 and17-4-26 directs the "arresting" officer to bring the detainee before a judicial officer, but omits any similar directive for custodians or third party entities entrusted with incarcerating the arrestee, the court was unwilling to allow Burke County, Georgia, to hide behind a technicality. However, whether the county's inaction amounted to a constitutional violation could not be resolved until the facts surrounding the agreement between the City of Midville and Burke County and the relationship between the Midville Police Department and the Burke County Sheriff's Department were more fully developed. Bunyon v. Burke County, 306 F. Supp. 2d 1240 (S.D. Ga. 2004).
Cited in Johnson v. Plunkett, 215 Ga. 353, 110 S.E.2d 745 (1959); McCranie v. Mullis, 221 Ga. 617, 146 S.E.2d 723 (1966); Jackson v. State, 225 Ga. 39, 165 S.E.2d 711 (1968); Blair v. State, 230 Ga. 409, 197 S.E.2d 362 (1973); Gill v. Decatur County, 129 Ga. App. 697, 201 S.E.2d 21 (1973); Thomas v. State, 233 Ga. 237, 210 S.E.2d 675 (1974); State v. Houston, 234 Ga. 721, 218 S.E.2d 13 (1975); Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976); Lewis v. State, 246 Ga. 101, 268 S.E.2d 915 (1980); Lang v. Baker, 248 Ga. 431, 286 S.E.2d 433 (1982); Tucker v. State, 249 Ga. 323, 290 S.E.2d 97 (1982); Jones v. State, 252 Ga. 385, 313 S.E.2d 103 (1984).
Limitations on Release for Delay
It was not the intent of this section to require a useless act. Johnson v. State, 215 Ga. 839, 114 S.E.2d 35 (1960), cert. denied, 368 U.S. 849, 82 S. Ct. 81, 7 L. Ed. 2d 47 (1961).
Indictment of defendant in capital case within three days.
- After a defendant was indicted in a capital case within 72 hours after the defendant's arrest, the incarceration was by reason of the indictment and not the warrant; this section could have no application since a committal court would have no jurisdiction to determine whether or not there was probable cause for indictment after the indictment had already been returned. Johnson v. State, 215 Ga. 839, 114 S.E.2d 35 (1960), cert. denied, 368 U.S. 849, 82 S. Ct. 81, 7 L. Ed. 2d 47 (1961).
Failure to bring defendant to magistrate not unconstitutional.- Though this section required that an officer arresting under a warrant bring the person arrested before a committing officer within 72 hours after arrest, failure to take an arrestee before a magistrate was not a federal constitutional issue. Stephenson v. Gaskins, 539 F.2d 1066 (5th Cir. 1976).
Requirement for hearing within three days.
- Defendant arrested on a warrant must be taken before the committing magistrate within 72 hours after the defendant's arrest but this means that the defendant must be presented to the committing magistrate and notified as to when and where the committal hearing is to be held, not that the hearing itself must be within the 72-hour period. Whitfield v. State, 115 Ga. App. 231, 154 S.E.2d 294 (1967).
Release not required if hearing not within three days.
- First sentence of this section imposed no penalty if the arresting officer failed to take the accused before a committing officer within 72 hours, nor was there any provision that the offender was to be released if no committal hearing was held within 72 hours. Pennaman v. Walton, 220 Ga. 295, 138 S.E.2d 571 (1964).
Detention illegal without hearing in three days.
- When the facts show that the arresting officers did bring the defendant before the magistrate within 72 hours after the arrest, the fact that the magistrate set the committal hearing more than 72 hours after the arrest does not make the defendant's detention illegal. Dodson v. Grimes, 220 Ga. 269, 138 S.E.2d 311 (1964).
There is no requirement for a hearing within 72 hours after the arrest and the fact that one is not set until more than 72 hours after such arrest would not make the prisoner's detention illegal. Beavers v. State, 132 Ga. App. 94, 207 S.E.2d 550 (1974).
Denial of hearing ground for preindictment habeas corpus.
- Although not ground for post-conviction habeas corpus due to mootness, denial of a commitment hearing would be ground for a preindictment habeas corpus. McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975).
Failure to conduct commitment hearing moot after grand jury indictment.
- Issue of whether the defendant was entitled to habeas relief on the ground that the defendant was denied the defendant's right to a commitment hearing prior to the indictment was moot after the defendant had been indicted by the grand jury. Spears v. Johnson, 256 Ga. 518, 350 S.E.2d 468 (1986).
Court still has jurisdiction despite illegal detention.
- Although an arresting officer may be liable in damages for false arrest and imprisonment when the officer detains the defendant in an illegal manner, this is ordinarily immaterial so far as the jurisdiction of the court over the defendant is concerned after jurisdiction has been acquired by accusation or indictment, and appearance and pleading by the defendant, in a criminal case. French v. State, 99 Ga. App. 149, 107 S.E.2d 890 (1959).
Delay does not invalidate trial and judgment.
- Delay in the holding of the commitment hearing within the requirements of this section in no way vitiated the indictment, trial, verdict, and judgment of conviction and sentence. Heard v. State, 126 Ga. App. 62, 189 S.E.2d 895 (1972); Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55 (1987).
Arrestee misbehavior may justify delay.
- What is reasonable diligence depends upon the peculiar facts of each case; the conduct of the prisoner may excuse the delay. Blocker v. Clark, 126 Ga. 484, 54 S.E. 1022, 7 L.R.A. (n. s.) 268, 8 Ann. Cas. 31 (1906).
OPINIONS OF THE ATTORNEY GENERAL
Probation violators.
- O.C.G.A. § 17-4-26 applies equally to probation violators who are arrested under warrants secured at the instance of probation supervisors. 1988 Op. Att'y Gen. No. U88-14.
Magistrate court may, sua sponte, order the release of arrestees who have been arrested without a warrant and when no warrant has been procured as required by O.C.G.A. § 17-4-26, and also when an individual has been arrested with a warrant, but has not been afforded a first appearance hearing within 72 hours of arrest as required by that section. 1988 Op. Att'y Gen. No. U88-14.
Waiver.- While it is possible for an individual to waive the individual's statutory right to a "first appearance," in writing, it would be necessary in every instance for a court to ensure that such a waiver is intelligently and competently made, and that the court's findings be made a part of the record of the case. 1988 Op. Att'y Gen. No. U88-14.
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Arrest, § 75 et seq.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 21 et seq.
ALR.
- Civil liability of officer making arrest under warrant as affected by his failure to exhibit warrant, or to state fact of, or substance of, warrant, 100 A.L.R. 188.
Liability of governmental unit or its officers for injury to innocent pedestrian or occupant of parked vehicle, or for damage to such vehicle, as result of police chase, 100 A.L.R.3d 815.