THE RIGHT TO HAVE A BOND SET IF A DEFENDANT IS NOT INDICTED WITHIN 90 DAYS AFTER BEING IN CUSTODY
Posted by Ben Sessions | | Criminal Defense
A criminal defendant in Georgia who remains in jail following his/her arrest is entitled to have his/her case presented to a grand jury within 90 days. However, with a very limited exception, if the defendant’s case is not presented to the grand jury within 90 days, the defendant has a right to a bond.
Any person who is arrested for a crime and who is refused bail shall, within 90 days after the date of confinement, be entitled to have the charge against him or her heard by a grand jury having jurisdiction over the accused person; provided, however, that if the person is arrested for a crime for which the death penalty is being sought, the superior court may, upon motion of the district attorney for an extension and after a hearing and good cause shown, grant one extension to the 90 day period not to exceed 90 additional days; and, provided, further, that if such extension is granted by the court, the person shall not be entitled to have the charge against him or her heard by the grand jury until the expiration of such extended period. In the event no grand jury considers the charges against the accused person within the 90 day period of confinement or within the extended period of confinement where such an extension is granted by the court, the accused shall have bail set upon application to the court.
O.C.G.A. § 17-7-50.
THE RIGHT TO BOND DOES NOT MEAN THE RIGHT TO A BOND THAT THE PERSON CAN MAKE
Beyond being essential to the presumption of innocence and the right not to be punished prior to being convicted by proof beyond a reasonable doubt, pre-trial release is essential to the assistance in and development of the defense to your criminal charges. However, O.C.G.A. § 17-7-50 is certainly no guarantee that the amount of the bound actually set by the Court following the expiration of 90 days will actually be reasonable:
Fredy Perez Hernandez and three other men were arrested following the police surveillance of a drug trafficking operation that recovered approximately ninety pounds of cocaine and $725,000 cash. The trial court initially denied Hernandez’s motion for bond; however, after he was incarcerated for more than 90 days without being indicted, the trial court conducted a hearing pursuant to OCGA § 17-7-501 and granted bail in the amount of $1,000,000. On appeal, Hernandez argues that the amount of bail is unconstitutionally excessive and equates to an unlawful refusal to grant bond. We find no error and affirm.
Excessive bail is prohibited by the Georgia Constitution as well as the Eighth Amendment to the United States Constitution. See Ga. Const. 1983, Art. I, Sec. I, Par. XVII; Pullin v. Dorsey, 271 Ga. 882, 525 S.E.2d 87 (2000). “Bail set at a figure higher than an amount reasonably calculated to insure the presence of the defendant is [unconstitutionally] excessive.” (Citations and punctuation omitted.) Mayfield v. State, 198 Ga.App. 252, 252-253, 401 S.E.2d 297 (1990). The trial court’s foremost consideration when fixing the amount of bail should be the probability that the defendant, if freed, will appear at trial. Id. at 253, 401 S.E.2d 297. The defendant bears the initial burden of producing evidence that he does not pose a significant flight risk. See Dunn v. Edwards, 275 Ga. 458(1), 569 S.E.2d 525 (2002). Other factors that the court may consider include the defendant’s ability to pay, the seriousness of the offense, and the defendant’s character and reputation. Id. “[T]he amount of bail assessed is within the sole discretion of the trial court and will not be overturned absent a clear abuse of discretion.” Pullin, 271 Ga. at 882, 525 S.E.2d 87.
The record in this case shows that the trial court was very concerned that Hernandez posed a significant risk of fleeing. Hernandez’s counsel conceded that Hernandez is not a United States citizen, and Hernandez presented no evidence that he was in this country legally. See Dunn, 275 Ga. at 458(1), 569 S.E.2d 525. Likewise, no evidence was presented that Hernandez owned a house or any real property in Georgia. The circumstances surrounding Hernandez’s arrest support an inference that he had access to large amounts of cash, and the crimes for which he was arrested are very serious and carry severe potential consequences.
Although Hernandez did present evidence that he was employed and has a wife and children in Georgia, the trial court was authorized to weigh these factors against the evidence set forth above and then set an amount reasonably calculated to ensure Hernandez’s presence at trial. We cannot say under these circumstances that the amount of bail was excessive or amounted to an abuse of discretion. See Mayfield, 198 Ga.App. at 252-253, 401 S.E.2d 297; Howard v. State, 197 Ga.App. 693, 694, 399 S.E.2d 283 (1990).
Hernandez v. State, 294 Ga. App. 289, 289-90, 669 S.E.2d 434, 435 (2008).