(Orig. Code 1863, § 4618; Code 1868, § 4640; Code 1873, § 4738; Code 1882, § 4738; Penal Code 1895, § 912; Penal Code 1910, § 937; Code 1933, § 27-407; Ga. L. 1980, p. 415, § 1; Ga. L. 2010, p. 963, § 2-11/SB 308.)
Editor's notes.- Ga. L. 2010, p. 963, § 3-1/SB 308, not codified by the General Assembly, provides, in part, that the amendment of this Code section shall apply to all offenses committed on and after June 4, 2010, and shall not affect any prosecutions for acts occurring before June 4, 2010, and shall not act as an abatement of any such prosecution.
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 article discussing the grand jury's ability to indict the accused contrary to the findings of the preliminary hearing, see 13 Ga. St. B.J. 195 (1977). For article, "Crimes and Offenses," see 27 Ga. St. U.L. Rev. 131 (2011). For note, "Bail in Georgia: Elimination of 'Double Bonding' - A Partially Solved Problem," see 8 Ga. St. B.J. 220 (1971).
JUDICIAL DECISIONS
Section creates no right to discovery.
- There is no general right to discovery in a criminal case, and nothing in O.C.G.A. §§ 17-7-23 and17-7-28 creates one, or authorizes the defendant to go on a "fishing expedition" for evidence concededly beyond the scope of the real purpose of the commitment hearing. Pruitt v. State, 258 Ga. 583, 373 S.E.2d 192 (1988), cert. denied, 493 U.S. 1093, 110 S. Ct. 1170, 107 L. Ed. 2d 1072 (1990).
Purpose of a commitment hearing.
- Purpose of a commitment hearing is to authorize the keeping in custody of one accused with probable cause of committing a crime until the grand jury determines whether the accused should stand trial. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964); Phillips v. Stynchcombe, 231 Ga. 430, 202 S.E.2d 26 (1973); Hunt v. Hopper, 232 Ga. 53, 205 S.E.2d 303 (1974); State v. Houston, 234 Ga. 721, 218 S.E.2d 13 (1975).
Purpose of a commitment hearing is simply to determine whether there is probable cause to believe that the accused is guilty of the crime charged, and if so, to bind the accused over for indictment by the grand jury. Jackson v. State, 225 Ga. 39, 165 S.E.2d 711 (1969), cert. denied, 399 U.S. 934, 90 S. Ct. 2248, 26 L. Ed. 2d 805 (1970); Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974); State v. Middlebrooks, 236 Ga. 52, 222 S.E.2d 343 (1976); First Nat'l Bank & Trust Co. v. State, 237 Ga. 112, 227 S.E.2d 20 (1976); J.T.M. v. State, 142 Ga. App. 635, 236 S.E.2d 764 (1977); Neal v. State, 160 Ga. App. 498, 287 S.E.2d 399 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991); Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1328, 94 L. Ed. 2d 180 (1987); overruled on other grounds, Manzano v. State, 282 Ga. 557, 651 S.E.2d 661 (2007); Moore v. Kemp, 809 F.2d 702 (11th Cir.), cert. denied, 481 U.S. 1054, 107 S. Ct. 2192, 95 L. Ed. 2d 847 (1987), 489 U.S. 1091, 109 S. Ct. 1560, 103 L. Ed. 2d 863, aff'd, 972 F.2d 319 (11th Cir. 1989).
Guilt or innocence not determined.
- Decision of the committing court settles nothing as to the guilt or innocence of the defendant. First Nat'l Bank & Trust Co. v. State, 237 Ga. 112, 227 S.E.2d 20 (1976).
Right to hearing is statutory, not constitutional.
- Incarcerated state defendant has a statutory but not a constitutional right to a preliminary commitment hearing. Jackson v. Smith, 435 F.2d 1284 (5th Cir. 1970), cert. denied, 402 U.S. 947, 91 S. Ct. 1639, 29 L. Ed. 2d 116 (1971).
Accused has no constitutional right to a preliminary hearing. Hunt v. Hopper, 232 Ga. 53, 205 S.E.2d 303 (1974).
Defendant's right to know charges.
- Defendant is not entitled to be informed of the charges against the defendant prior to trial other than by indictment. First Nat'l Bank & Trust Co. v. State, 137 Ga. App. 760, 224 S.E.2d 866, aff'd, 237 Ga. 112, 227 S.E.2d 20 (1976).
Commitment hearing is a critical stage of the criminal proceedings and the defendant is entitled to counsel. State v. Houston, 234 Ga. 721, 218 S.E.2d 13 (1975).
Absence of a commitment hearing does not divest the criminal court of jurisdiction. Johnson v. State, 126 Ga. App. 757, 191 S.E.2d 614 (1972).
Hearing not requisite to trial for a felony.
- Holding of a commitment hearing is not a requisite to a trial for commission of a felony. Holmes v. State, 224 Ga. 553, 163 S.E.2d 803 (1968); Smith v. Brown, 228 Ga. 584, 187 S.E.2d 142 (1972); Burston v. Caldwell, 288 Ga. 795, 187 S.E.2d 900 (1972); Johnson v. State, 126 Ga. App. 757, 191 S.E.2d 614 (1972); Brand v. Wofford, 230 Ga. 750, 199 S.E.2d 231 (1973); Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974); State v. Middlebrooks, 236 Ga. 52, 222 S.E.2d 343 (1976); First Nat'l Bank & Trust Co. v. State, 137 Ga. App. 760, 224 S.E.2d 866, aff'd, 237 Ga. 112, 227 S.E.2d 20 (1976).
Return of indictment eliminates need for hearing.
- Once an indictment has been returned, the necessity for a committal hearing has been eliminated. Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974).
Effect of issuance of indictment prior to hearing.
- Defendant is not deprived of any constitutional right if the grand jury issues an indictment against the defendant prior to the holding of a preliminary hearing. First Nat'l Bank & Trust Co. v. State, 137 Ga. App. 760, 224 S.E.2d 866, aff'd, 237 Ga. 112, 227 S.E.2d 20 (1976).
Failure to hold a preliminary commitment hearing prior to an indictment of the defendant did not require that the indictment be quashed even though the defendant had been induced to make bond upon a magistrate's promise to hold such a hearing. State v. Ruff, 176 Ga. App. 303, 335 S.E.2d 687 (1985).
When a prosecutor requested a continuance of the defendant's preliminary hearing to accommodate the prosecutor's trial schedule but an indictment was returned before a rescheduled hearing could be conducted, a plea in abatement was not warranted. Chisholm v. State, 231 Ga. App. 835, 500 S.E.2d 14 (1998).
State's burden at a commitment hearing is simply to show probable cause to believe the accused guilty and, if so, to bind the accused over to the grand jury for indictment, rather than to show guilt beyond a reasonable doubt, as at trial. Neal v. State, 160 Ga. App. 498, 287 S.E.2d 399 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).
Silence of accused at commitment hearing carries no inference as to guilt.
- Individual accused of criminal misconduct might often determine as a matter of tactics or strategy that the presentation of a defense at a commitment hearing would serve little or no constructive purpose. Indeed, it might impose a disadvantage upon the accused to prematurely disclose the accused's defenses. In such cases, silence of the accused and the decision of the accused to present no evidence can carry no reasonable inference as to the accused's guilt. Neal v. State, 160 Ga. App. 498, 287 S.E.2d 399 (1981), overruled on other grounds, Bangs v. State, 198 Ga. App. 404, 401 S.E.2d 599 (1991).
Person not imprisoned until after indictment has no right to a preliminary hearing. First Nat'l Bank & Trust Co. v. State, 137 Ga. App. 760, 224 S.E.2d 866, aff'd, 237 Ga. 112, 227 S.E.2d 20 (1976).
Effect of indictment on judicial oversight or review of decision to prosecute.
- Once an indictment is obtained, there is no judicial oversight or review of the decision to prosecute because of any failure to hold a commitment hearing. State v. Middlebrooks, 236 Ga. 52, 222 S.E.2d 343 (1976); First Nat'l Bank & Trust Co. v. State, 137 Ga. App. 760, 224 S.E.2d 866, aff'd, 237 Ga. 112, 227 S.E.2d 20 (1976).
Return of indictment deprives committal court of jurisdiction.
- Committal court has no jurisdiction to determine whether or not there is probable cause for indictment, after the indictment has already been returned. First Nat'l Bank & Trust Co. v. State, 137 Ga. App. 760, 224 S.E.2d 866, aff'd, 237 Ga. 112, 227 S.E.2d 20 (1976).
Trial court has no authority to quash an indictment on the issue of lack of probable cause, that issue having already been decided by the committing court. First Nat'l Bank & Trust Co. v. State, 237 Ga. 112, 227 S.E.2d 20 (1976).
Effect of illegal detention or arrest.
- Illegal detention without a valid probable cause hearing does not preclude indictment by the grand jury. Illegal arrest or detention does not void a subsequent conviction. State v. Houston, 234 Ga. 721, 218 S.E.2d 13 (1975).
Reversal for lack of hearing.
- After a conviction, the lack of a commitment hearing is not considered to be reversible error. State v. Middlebrooks, 236 Ga. 52, 222 S.E.2d 343 (1976); Collins v. State, 154 Ga. App. 651, 269 S.E.2d 509 (1980).
Supreme Court will not overturn a conviction either on direct appeal or on collateral attack because a commitment hearing was denied the appellant. State v. Middlebrooks, 236 Ga. 52, 222 S.E.2d 343 (1976).
Probable cause for trial.
- In defendant's weapons case there was probable cause to bind the defendant over for trial when a law enforcement officer's statement that the defendant had been convicted of racketeering was sufficient to show probable cause on the element of possession of guns by a felon. As to the defendant's possession of the guns, all 29 were found in the house occupied by the defendant, including two in the defendant's bedroom. State v. Graddy, 262 Ga. App. 98, 585 S.E.2d 147 (2003), aff'd, 277 Ga. 765, 596 S.E.2d 109 (2004).
Lack of hearing rendered harmless by indictment, trial, and conviction.
- Since the purpose of the commitment hearing is to determine whether there is probable cause to hold the accused for trial the subsequent indictment, trial, and conviction of the accused render omission of the hearing harmless. Thrash v. Caldwell, 229 Ga. 585, 193 S.E.2d 605 (1972); Allen v. Caldwell, 231 Ga. 442, 202 S.E.2d 35 (1973); Douglas v. State, 132 Ga. App. 694, 209 S.E.2d 114 (1974); First Nat'l Bank & Trust Co. v. State, 137 Ga. App. 760, 224 S.E.2d 866, aff'd, 237 Ga. 112, 227 S.E.2d 20 (1976).
Denial of hearing not grounds for habeas corpus.
- Claim of denial of a preliminary hearing or commitment hearing is not a valid ground of a petition for a writ of habeas corpus. Allen v. Caldwell, 231 Ga. 442, 202 S.E.2d 35 (1973).
Failure to provide counsel at hearing.
- Failure to provide counsel at a probable cause hearing may not be raised after conviction by petitioners for writ of habeas corpus. State v. Houston, 234 Ga. 721, 218 S.E.2d 13 (1975).
Arresting officer has no authority to accept bond from one arrested under warrant for felony, but should return the party arrested to the county in which the crime was alleged to have been committed for examination before a judicial officer of that county and the fixing of bail by such officer in case of commitment. Paulk v. Sexton, 203 Ga. 82, 45 S.E.2d 768 (1947).
Hearsay evidence.
- District attorney's declaratory judgment claim, which sought an order requiring magistrate judges to admit and consider hearsay evidence at preliminary hearings to determine whether to bind over a defendant for grand jury indictment, was proper as involving a justiciable controversy under O.C.G.A. § 9-4-2 because the magistrate court established a standard practice requiring the production of direct evidence in addition to hearsay evidence to support a bindover determination at a preliminary hearing; the result was uncertainty and insecurity in the district attorney as to the district attorney's office's burden of proof and production at future preliminary hearings. Bethel v. Fleming, 310 Ga. App. 717, 713 S.E.2d 900 (2011).
Admission of hearsay evidence in preliminary hearings.
- Trial court did not err in ruling that hearsay evidence had to be admitted as legal evidence at preliminary hearings because magistrate judges were required to admit and weigh hearsay evidence in preliminary hearings; the public's interest in justice and safety is implicated when criminal charges are preliminarily dismissed against persons who were arrested pursuant to a showing of probable cause sufficient to obtain an arrest warrant. Bethel v. Fleming, 310 Ga. App. 717, 713 S.E.2d 900 (2011).
Cited in Georgia v. Port, 3 F. 124 (N.D. Ga. 1880); Sanders v. Paschal, 186 Ga. 837, 199 S.E. 153 (1938); Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939); Cooper v. Lunsford, 203 Ga. 166, 45 S.E.2d 395 (1947); Savannah News-Press, Inc. v. Harley, 100 Ga. App. 387, 111 S.E.2d 259 (1959); Pennaman v. Walton, 220 Ga. 295, 138 S.E.2d 571 (1964); Sweeney v. Balkcom, 358 F.2d 415 (5th Cir. 1966); Almand v. Brock, 227 Ga. 586, 182 S.E.2d 97 (1971); T.K. v. State, 126 Ga. App. 269, 190 S.E.2d 588 (1972); Baker v. State, 127 Ga. App. 403, 194 S.E.2d 122 (1972); Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976); Fleming v. Kemp, 748 F.2d 1435 (11th Cir. 1984); Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, § 548 et seq.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 124 et seq.
ALR.
- Admissibility of plea of guilty at preliminary hearing, 141 A.L.R. 1335.
Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269.
Scope and extent and remedy or sanctions for infringement, of accused's right to communicate with his attorney, 5 A.L.R.3d 1360.
Propriety of consideration of credibility of witness in determining probable cause at state preliminary hearing, 84 A.L.R.3d 811.