Trial Upon Accusations in Felony Cases; Trial Upon Accusations of Felony and Misdemeanor Cases in Which Guilty Plea Entered and Indictment Waived

1. Law
2. Georgia Code
3. Criminal Procedure
4. Pretrial Proceedings
5. Accusations
6. Trial Upon Accusations in Felony Cases; Trial Upon Accusations of Felony and Misdemeanor Cases in Which Guilty Plea Entered and Indictment Waived

1. In all felony cases, other than cases involving capital felonies, in which defendants have been bound over to the superior court, are confined in jail or released on bond pending a commitment hearing, or are in jail having waived a commitment hearing, the district attorney shall have authority to prefer accusations, and such defendants shall be tried on such accusations, provided that defendants going to trial under such accusations shall, in writing, waive indictment by a grand jury.
2. Judges of the superior court may open their courts at any time without the presence of either a grand jury or a trial jury to receive and act upon pleas of guilty in misdemeanor cases and in felony cases, except those punishable by death or life imprisonment, when the judge and the defendant consent thereto. The judge may try the issues in such cases without a jury upon an accusation filed by the district attorney where the defendant has waived indictment and consented thereto in writing and counsel is present in court representing the defendant either by virtue of his employment or by appointment by the court.

(Ga. L. 1915, p. 32, § 1; Code 1933, § 27-704; Ga. L. 1935, p. 116, § 1; Ga. L. 1972, p. 386, § 1; Ga. L. 1972, p. 623, § 1; Ga. L. 1980, p. 452, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Only indictments are feasible for corporations.

- Only feasible method for charging corporations with crimes is through the return of an indictment by a grand jury. 1970 Op. Att'y Gen. No. 70-155.

Proceedings against persons imprisoned on other charges.

- Although the detainer procedure may be invoked by an accusation without a waiver of indictment by the grand jury, this procedure will not authorize the Board of Offender Rehabilitation to hold a prisoner after the prisoner's present sentence has expired. The district attorney can arrest the prisoner upon the prisoner's release and proceed against the prisoner as the prisoner would proceed against any other criminal defendant. 1969 Op. Att'y Gen. No. 69-410.

Discretion of district attorney.

- Decision as to whether to present an indictment to the grand jury lies within the discretion of the district attorney. There is misconduct only if the decision concerning prosecution is based upon some constitutionally impermissible reason such as race, religion, or the exercise of constitutional rights. 1988 Op. Att'y Gen. No. U88-25.

Motion to nolle prosequi.

- Once an indictment or accusation has been filed, a district attorney's motion to nolle prosequi or dead docket requires consent of the court. If the trial court refuses to grant the district attorney's motion to nolle prosequi or dead docket the case, the district attorney is not thereby disqualified. 1988 Op. Att'y Gen. No. U88-25.

Effect of pretrial diversion program.

- If an indictment or accusation has been filed against a person who successfully completes a pretrial diversion program, consent of the court is required before the criminal charge can be dismissed. If the person completes the pretrial diversion program prior to the filing of an indictment or accusation, consent of the court is not required. 1988 Op. Att'y Gen. No. U88-25.

RESEARCH REFERENCES

ALR.

- Power of court to amend indictment, 7 A.L.R. 1516; 68 A.L.R. 928.

Right to waive indictment, information, or other formal accusation, 56 A.L.R.2d 837.

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.

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