Party, Leading Attorney, or Material Witness in Attendance on Active Duty as Member of National Guard or Component of Armed Forces of the United States as Grounds for Granting Continuance; Setting Bail in Certain Cases

  1. Law
  2. Georgia Code
  3. Criminal Procedure
  4. Trial
  5. Continuances
  6. Party, Leading Attorney, or Material Witness in Attendance on Active Duty as Member of National Guard or Component of Armed Forces of the United States as Grounds for Granting Continuance; Setting Bail in Certain Cases

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  1. It shall be the duty of any judge of the courts of this state to continue any case in the court on or without motion when any party thereto or his or her leading attorney is absent from court when the case is reached by reason of his or her attendance on active duty as a member of the National Guard or a reserve or active component of the armed forces of the United States. The case may proceed if the party, in the absence of his or her leading attorney, or the leading attorney, in the absence of the party, announces ready for trial on the call of the case. If counsel is absent, it shall be necessary for his or her client to make oath that he or she cannot safely go to trial without the absent attorney and, if a party is absent, his or her counsel shall state in his or her place that he or she cannot safely go to trial without the client.
  2. It shall be the duty of any judge of the courts of this state to continue any case in the court upon a showing by the state or the defendant that a material and necessary witness is unavailable by reason of being on active duty as a member of the National Guard or as a member of a reserve or active component of the armed forces of the United States.
  3. In cases in which a demand for speedy trial has been filed in accordance with Code Section 17-7-170 or 17-7-171, the court shall grant the continuance if the party moving for a continuance pursuant to subsection (b) of this Code section establishes by testimony, affidavits, or other evidence that:
    1. The witness is material and necessary;
    2. The witness is located outside the territorial limits of the state;
    3. The party has submitted a request to the proper military authorities for the testimony of the witness in accordance with Section 301 of Title 5 of the United States Code and federal regulations or directives issued by the armed forces pursuant thereto; and
    4. The witness will not be available within the time limits prescribed by Code Section 17-7-170 or 17-7-171.

      This continuance shall toll the running of the demand for speedy trial and shall continue the trial until the witness is released from active duty or the military makes the witness available to testify. If the witness only becomes available to testify within the last two weeks of the term of court in which the case must be tried, the case may be tried at the next succeeding term of court.

  4. In any case in which the court grants the state a continuance pursuant to subsection (c) of this Code section, the defendant shall have bail set upon application to the court, except in those cases punishable by death or imprisonment for life without parole. In any case in which the defendant is accused of committing a serious violent felony, as defined by subsection (a) of Code Section 17-10-6.1, the court shall consider but shall not be required to set bail.

(Ga. L. 1925, p. 149, § 1; Code 1933, § 81-1406; Ga. L. 2003, p. 154, § 4; Ga. L. 2004, p. 631, § 17; Ga. L. 2006, p. 893, § 5/HB 1421.)

Cross references.

- Corresponding provision relating to civil procedure, § 9-10-153.

JUDICIAL DECISIONS

Construction with O.C.G.A.

§ 17- 7-170. - While the trial court was authorized to conclude that the "lead officer" in the prosecution against the defendant was a material and necessary witness who was unavailable for 14 months while the defendant's case was pending, and thus a continuance during that period was proper under O.C.G.A. § 17-8-31, despite the fact that no explanation was given for the remainder of the delay, given that the defendant failed to prove any of the other Barker v. Wingo factors in determining whether a speedy trial violation occurred, the defendant's motion to dismiss the indictment on speedy trial grounds was properly denied. Bell v. State, 287 Ga. App. 300, 651 S.E.2d 218 (2007), cert. denied, No. S08C0031, 2007 Ga. LEXIS 811 (Ga. 2007).

RESEARCH REFERENCES

C.J.S.

- 17 C.J.S., Continuances, §§ 43, 52.

ALR.

- Appealability of order granting or refusing stay or continuance under Federal Civil Relief Act because of litigant's military service, 34 A.L.R.2d 1149.

Effect of war on litigation pending at the time of its outbreak, 137 A.L.R. 1335; 147 A.L.R. 1298; 148 A.L.R. 1384; 149 A.L.R. 1451; 149 A.L.R. 1452; 150 A.L.R. 1417; 150 A.L.R. 1418; 151 A.L.R. 1453; 152 A.L.R. 1450; 154 A.L.R. 1447.

Validity and construction of war legislation in nature of moratory statute, 147 A.L.R. 1311; 148 A.L.R. 1388; 149 A.L.R. 1457; 150 A.L.R. 1400; 150 A.L.R. 1420; 151 A.L.R. 1456; 152 A.L.R. 1452; 153 A.L.R. 1422; 154 A.L.R. 1448; 155 A.L.R. 1452; 156 A.L.R. 1450; 157 A.L.R. 1450; 158 A.L.R. 1450.

Soldiers' and Sailors' Civil Relief Acts, 147 A.L.R. 1366; 148 A.L.R. 1395; 149 A.L.R. 1463; 150 A.L.R. 1428; 151 A.L.R. 1460; 152 A.L.R. 1457; 153 A.L.R. 1429; 154 A.L.R. 1455; 155 A.L.R. 1456; 156 A.L.R. 1455; 157 A.L.R. 1454; 158 A.L.R. 1456; 35 A.L.R. Fed. 649.


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