Criminal Defense Lawyer

If you have been charged with a crime in Atlanta, you need an experienced Atlanta criminal defense lawyer that will aggressively pursue your defense. Ben Sessions of Sessions & Fleischman, LLC, understands how cases are prosecuted in Atlanta and he understands what it takes to deliver results. Many clients do not know what to expect in the form of a defense to their criminal charges. Most reputable criminal defense lawyers know that what is appropriate in any given case can vary. However, beginning the process of determining what is appropriate should begin as soon as possible.

What Are You Paying for When You Hire a Criminal Defense Attorney?

If You’re Looking for An Experienced Atlanta Criminal Defense Lawyer with A Track Record of Success, Contact Sessions & Fleischman.

Ben Sessions of Sessions & Fleischman has a proven record of success in defending criminal charges in Atlanta, Georgia. Ben Sessions has developed a reputation among other lawyers as a go-to criminal defense attorney in complex and difficult criminal cases. If you are looking for a lawyer that understands the courts in and around Atlanta and understands what is required to deliver exceptional results in difficult cases, call Sessions & Fleischman today.

Selecting a Criminal Defense Lawyer: The Importance of a Limited Caseload

I rarely talk about how what types of things people should look for in selecting a criminal defense lawyer. The reason why I rarely talk about this is simple: people are so bad at choosing lawyers, particularly criminal defense lawyers, that I figure it is just a waste of breath. Generally speaking, people are suckers for radio personalities, flashy websites, and “larger than life” personalities. The market for criminal defense lawyers is really no different. A radio personality, flashy website, and larger-than-life personality aren’t exactly in the top 5 of the traits I would look for in a successful advocate and criminal defense trial attorney. Yet, these people seem to dominate the market for criminal defense lawyers.

Lawyers, particularly criminal defense lawyers, need to be real people. Criminal defense lawyers deal with real problems. Frequently, our clients are alleged to have caused serious harm to other people. Frequently, we, as criminal defense lawyers, need to be able to stand in front of 6 or 12 jurors or a Judge and have those people rely upon our (criminal defense attorneys) view of the world — to trust us when we say the government’s evidence isn’t enough or to rely upon the evidence that we put forward in mitigation. The problem is that being a hell of an advertiser doesn’t have anything to do with those skills that are the most important for a criminal defense lawyer.

Here is the other problem, though. The criminal defense law practice is still a business. Lawyers all want to make more money, and most lawyers operate under the assumption that in order to make money, they need more clients. However, there is a limit at which more clients means less essential service to existing clients. It’s a struggle that has always existed.

One of the constant struggles that most good criminal defense lawyers face is when to turn away a potential client. That is the management of caseload, and it directly influences the ability of the lawyer to devote more time to the existing clients that he/she has. With fewer clients, the lawyer will presumably commit more time and effort to the case.

Frequently Asked Criminal Law Questions & Problems

Your Atlanta Criminal Defense Attorney at Sessions & Fleischman Will Act with The Urgency that You Expect and Give Your Defense the Attention that It Deserves.

One of the problems that many people encounter with criminal defense lawyers is that the lawyers give them real attention prior to being retained, but after the lawyer is hired, there does not really seem to be any sense of urgency. Criminal defense attorney Ben Sessions understands how important it is to get to work on your defense as soon possible. The urgency and dedication that we give to each of our clients’ cases translated to exceptional (and, frequently, early) success in the defense of criminal charges.

If you face a criminal charge in Georgia, you must understand the importance of investigating your criminal case prior to formal indictment. Many criminal defendants make the mistake of waiting until a case has been formally indicted before they retain a qualified criminal defense attorney. Don’t make this mistake.

A Qualified Georgia Criminal Defense Attorney Should Begin Investigating Your Criminal Case Prior to Formal Indictment

In our experience, early efforts to investigate possible criminal charges can be very beneficial. Often times, many criminal charges can be avoided simply by taking some early steps and communicating with the prosecution. We are frequently in a much better position to defend against criminal charges when we have more information. The earlier that we begin investigating possible criminal charges, the more information we can collect.

Investigating Your Criminal Case Prior to Formal Indictment Allows for More Strategic Planning

At Sessions & Fleischman, one of the things that we pride ourselves on and that differentiates our criminal defense attorneys in Georgia from others is our effort to develop a strategic plan unique to your case. Many lawyers that handle criminal cases in Georgia unfortunately do so in a “one size fits all” manner. There are certainly some aspects of every criminal case that should be routine, but the overall theme and theory of defense must be individually tailored to the case. The criminal defense attorneys at Sessions & Fleischman understand the difference, and we will develop a plan unique to your case.

Does Your Criminal Defense Attorney Understand how To Effectively Use a Speedy Trial Demand?

Transcript:

One of the things my clients are constantly telling me, and voicing frustration about is that they feel like they have no control over what is going on in case they have no control over when their cases are set for trial, they have no control over sort of the pace of the litigation. How things sort of go on pause for a long period of time and then suddenly accelerate and they don’t have any control over the speed at which they accelerate. That’s really frustrating thing and something that for a lot of people can make them feel very hopeless in the process. Lawyers a lot of times are very fearful of using the right to the statutory speedy trial and you need to recognize that statutory speedy trial demands in a lot of ways, are allowing you to exercise some degree of control of your case. No, you can’t control when the judge will call your case in but it does allow you to actually create some pace there, to say to the State, we’re not going to let you control the pace of this litigation, we’re actually going to push the issue. We’re going to force you to go to trial and appear at a time that may actually be uncomfortable for them. That’s something that they’re not used to it all.

In a lot of ways, that sort of change of pace can be a tremendous advantage to you, particularly if you’re in a jurisdiction like Fulton or Cobb where we have relatively short term support, and they’re not anticipating that you might follow statutory speedy trial demand, for example, in a vehicular homicide case. So, you can move things along in a way that they are not used to, in a way that might give you a very real strategic advantage. So, think about that, in addition to that, the idea of actually getting closure sooner rather than later for a lot of my clients is something that they would absolutely welcome. No one welcomes the idea of having a case hanging over their heads for two three four years, and that’s not at all uncommon for defendants in a vehicle homicide case in Fulton County to have that sort of anxiety, that sort of stress hanging out over their heads for that period of time. So, certainly that’s another reason why it is you should consider that option, don’t take that tool off the table in your case without really giving it some thought. Lawyers should certainly be less scared of using it because it is in fact a tool and one that can be extremely powerful if you’re using it in the right way.

Preliminary Hearings in Georgia Criminal Cases

Some people mistakenly believe that preliminary hearings in Georgia criminal cases refers to every pre-trial hearing in the case. Preliminary hearings in Georgia criminal cases can be instrumental to the development of the defense in your case. What the preliminary hearing does is allow you an early opportunity to preview the State’s case and evidence against you.

The decision made by a judge at preliminary hearings in Georgia criminal cases is governed by the following:

(a) The duty of a court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused and to require him to appear and answer before the court competent to try him. Whenever such probable cause exists, it is the duty of the court to commit.

(b) Any court, other than a superior court or a state court, to which any charge of a violation of Code Section 16-11-126 is referred for the determination required by this Code section shall thereafter have and exercise only the jurisdiction of a court of inquiry with respect to the charge and with respect to any other criminal violation arising from the transaction on which the charge was based and shall not thereafter be competent to try the accused for the charge or for any other criminal violation arising from the transaction on which the charge was based, irrespective of the jurisdiction that the court otherwise would have under any other law.

What Is the Motion Hearing in Your Criminal Case?

Generally, within 10 days after your arraignment, your criminal defense attorney will file what are called motions in your case. Motions are a vital part of your defense and can be the difference in a great result or a poor one. So, let’s talk about what happens at a motions hearing.

Transcript:

After you’ve been arraigned in your criminal case, your lawyer should be filing motions. Those motions are motions for discovery motions eliminated preclude the state from doing certain things at trial and motions to suppress. That means it’s colluding. Certain pieces of evidence from the trial case. Generally speaking you want to have motions challenging what you perceive to be the strongest parts of the state’s case. You want to try to nitpick everything as well as you can through through the process of filing motions and litigating motions and certainly you want to kind of keep your eye on what you perceive to be the most valuable parts of their case. That’s what motions really are for. Um, as you lead up to the trial vocation, we’re going to have calendar calls and you’re going to have motion hearing dates and most clients are really stressed out whenever they’re looking at, sorry, pop up there.

Um, what it is that’s going to happen at their motion hearing at the motion hearing, you’re going to have the state present obviously and there probably, unless you have just some, for example, do mirror issues which are just based on documents. If you actually have motions to suppress, you’re going to have actual witnesses there. During those those evidentiary hearings. It’s very rare that our clients actually have to testify. In fact the only real time that they might testify where it might be advantageous and those motions hearings are described, for example, how they were coerced into consenting to a search or giving a statement to the police at a station if there was something that was really exceptional that happened there in the course of those, those events. But generally speaking, when you show up to a motion hearing, you’re just going to be sitting there beside your lawyer.

Um, I’m going to do all the arguing, I’m going to do all that, the presentation of evidence I need to the state’s witnesses, and then we’re going to talk to the judge about why it is that the evidence should or should not be admitted in the trial of the case. And that’s what motion hearings really are about. They’re trying to determine whether or not first the state’s case should go forward and then what evidence will or will not be admissible in the trial. The case. Do you have any questions about motions and questions about your case in general? Feel free to call me. My name is Ben sessions. My phone number is (470) 225-7710 again, (470) 225-7710 thank you.

All judges are motivated to clear their dockets. Some judges are motivated to obtain convictions in criminal cases. All prosecutors are motivated to close cases as quickly as possible and to obtain convictions.

Strategic Motions Practice in Georgia Criminal Cases Is Essential to Success in Your Case

Strategic motions practice in Georgia criminal cases can literally bring both of these goals to a screeching halt. Some motions can stop the criminal conviction train. Some motions can stop the criminal case from going forward, and time is very frequently on our side.

However (and unfortunately), many so-called criminal defense attorneys do not think critically about their motion practice in Georgia criminal cases. Because judges and prosecutors simply want to move cases from their docket, once a lawyer fails to adequately challenge the admissibility of certain pieces of evidence, many judges won’t allow subsequent challenges to the admissibility of questionable evidence, and they know that if the evidence goes unchallenged, a guilty plea can frequently be extorted from the defendant.

Criminal defendants’ rights are forfeited when proper motions are not timely filed within 10 days from the date of arraignment. Don’t allow your future to rest upon the courtesy of the prosecutor or judge because motions were not properly filed in your case.

Your Criminal Defense Attorney Must Understand How To Strategically Use Pre-Trial Motions

The Importance of Pre-Trial Demurrers in Georgia Criminal Cases

I spend a lot of time preparing demurrers in defense of criminal cases. Demurrers present interesting issues in Georgia law, and learning to take advantage of demurrers can create strategic advantages for my clients. Unfortunately, many lawyers do not view demurrers in the same way. The standard approach to demurrers is that the State has 2 opportunities to fix and defect, so there is really no reason to argue demurrers. This sort of pessimistic view toward demurrers could not be more misplaced and the dangers of this standard approach become evidence on appeals from convictions involving clearly defective indictments and accusations in Georgia criminal cases:

Failure to challenge the indictment. As noted in pision 2, the indictment did not allege that the currency Walker stole was the property of another, and Walker’s trial counsel failed to challenge this omission. But even if we assume that the indictment was fatally flawed and therefore susceptible to a general demurrer,“the grant of a general demurrer due to a finding that the indictment was void ab initio … does not automatically bar the reindictment of the defendant.”

Moreover, when trial has been had before the appellate court reviews the merits of the motion to quash, where no prejudice to defendant has occurred though the indictment … is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. Convictions are no longer reversed because of minor and technical deficiencies which do not prejudice the accused. Upon a proceeding after verdict,no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment … Thus a defendant who was not misled to his prejudice by any imperfection in the indictment … cannot obtain reversal of his conviction on that ground.

Here, the indictment set out the date of the offense and the facts necessary to inform Walker of the charged offense, allow him to prepare his defense, and protect him from double jeopardy for the charged offense. The trial evidence showed no dispute as to the robber’s lack of authority to take the money from the Sonic restaurant at gunpoint, so Walker was not misled by the wording of the indictment about the nature of the property he stole. Based on the record before us, this argument presents no ground for reversal.

Walker v. State, 329 Ga. App. 369, 373-74, 765 S.E.2d 599, 604-05 (2014).

Trust Is The Most Important Part of Choosing A Criminal Defense Attorney

Transcript:

One of the most difficult decisions for any client is when to go from, I’m going to defend this case, maintain my not guilty plea to changing their mind and ultimately give in and entering a guilty plea or some other sort of alternative plea to the charge. Um, that is rightfully the most difficult decision that a client has to make. It is probably something that needs to be considered throughout the entirety of the case. I have clients that come in and say, Ben, I’m never going to enter a guilty plea. And I certainly will respect that. I’m going to follow those wishes and we’re going to go to trial on the case unless the prosecutor ultimately dismisses it beforehand. But in most of my client’s cases, they’re looking to both mitigate their risk and look to develop the best possible defense they can going forward. Um, Corona virus obviously presents some real unusual set of circumstances for us because the way in which prosecutors and judges ultimately get a client to, or a defendant to make a decision as to whether or not they’re going to get a trial or enter a guilty plea is by trial calendars.

And right now we don’t have any trial calendars that are going on. Um, and so some of the incentives that clients otherwise would have had, the pressure that they would have had is kind of taken off of them. And that’s really important to know, because whenever you’re going through this, and let’s say for example, that you had multiple DUI offenses in your criminal history, um, you might be able to get a really good resolution of your case that involves very little jail time, um, or minimal jail time that you would yeah, not I’ve gotten in normal times if juries were actually being in pain to try your case because prosecutors and judges know that, Hey, if I’m going to incentivize this person to move forward with their case to resolve it in a quick manner, um, I need to give them some real reasons to do that.

Usually that involves taking jail time, significantly off the table. Um, on the other hand, let’s say for example, that you have a first DUI offense and there’s no real risk of really great jail time. If you go forward and push the case on down the road, there probably is very little incentive for you to actually enter a guilty plea during this time. It is to your benefit in almost every set of circumstances. If it’s the first DUI offense to hold off, obviously there are some exceptions to that. Um, and you need to talk to your lawyer and making that decision, but in your garden, variety, no accident, no prior criminal history, no prior drug or alcohol related offense on your record, if you’re charged with a DUI during this time, your case is pending during the COVID coronavirus shutdown, there really is very little incentive for you to resolve a case to a guilty pleas, to the DUI, um, kicking the can down the road, seeing how things unfold in six, 12, 18 months, however long it takes us to actually get to a jury trial, um, is probably going to be to your benefit.

Lawyers Withdrawing From a Criminal Case

One of the things that really bothers me with regard to criminal defense practice is lawyers that attempt to withdraw from the representation of defendant well into The case. There is simply no reason for a criminal defense lawyer to take on a misdemeanor case and hold on that case for approximately 18 months and then attempt to withdraw from the representation about a month prior to the scheduled trial date.

What we are seeing are lawyers that take on clients for very low fees, engage in an extended payment plan, and attempt to withdraw from the client’s case when they cannot pay the balance in full near the conclusion of the case. First, the client/defendant obviously had financial trouble at the time that the representation began. Further, the lawyer is actually hurting the client by engaging in this sort of business practice. It is the client that is hurt when the lawyer withdraws 2 weeks prior to a scheduled trial date, and we should expect more from criminal defense attorneys. Finally, the lawyer that takes on criminal defense clients in a tenuous financial position should be treated as having taken a business risk. The lawyer wanted the short-term more for their practice on the front end of the case, and they should be required to endure the long-term consequences of the gamble they took.

Criminal defense lawyers should seriously consider whether the damage done to their reputation by withdrawing very late in a case is worth the relief from having to do a little work in a case in which (presumably) most of the work was already done. If as much time were spent preparing cases for trial as is spent preparing notices of intent to withdraw and motions to withdraw, I think most of these cases could be completed and everyone would walk away with a little better taste in their mouth.

UNDERSTANDING AN ATTORNEY’S FEES IN DUI & CRIMINAL CASES

The importance of having a clear understanding of attorney’s fees cannot be understated if you are facing a criminal or DUI charge. For many people, the anxiety of possible criminal charges or a DUI arrest is simply overwhelming. So, they start calling lawyers on the internet and calling lawyers that are soliciting them by mail. If you are in this stage, stop and breathe for just a minute.

PERSONAL CONSIDERATIONS YOU SHOULD CONSIDER IN EVALUATING PROSPECTIVE DUI & CRIMINAL DEFENSE ATTORNEYS AND THEIR FEES

You have to understand that this is a long race, not a sprint. Thoughtfulness at the outset of the representation stage of this problem can save you a world of trouble in the long run. I strongly recommend that you do the following when you are trying to select a criminal defense or DUI attorney:

Identify your personal priorities/goals,
Set your budget,
Identify a pool of possible lawyers and meet with them IN PERSON, and
Make sure that the lawyer provides you with a written fee agreement.

Lack of clarity about what the lawyer’s fees include and what costs that clients will be responsible for are a major source of conflict between lawyers and clients. Nothing will cause a relationship between a lawyer and a client to break down quicker than a lawyer who is constantly calling a client for money, or a lawyer that appears resistant to devote the required effort in a case because he/she has not been paid the requested fee.

CRUCIAL PHASES AND PROCESSES THAT YOU MUST BE AWARE OF IN EVALUATING AN ATTORNEY’S FEE AGREEMENT

It is difficult for you, as a prospective client, to understand all of the possible fees that can be associated with the representation, but you need to have a basic understanding of the basic concepts:

Pre-indictment/accusation investigation
Arraignment and preparation of motions
Motions hearings
Trials
Appeals (interlocutory or post-conviction)

A fee agreement should address what actions will be taken by the parties in each of these phases of the representation.

Georgia Criminal Indictments

The fundamental rules governing the technical requirements of Georgia criminal indictments are stated in OCGA § 17-7-54:

(a) Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct. The form of every indictment shall be substantially as follows:

Georgia, _____ County.

The grand jurors selected, chosen, and sworn for the County of _____, to wit: _____, in the name and behalf of the citizens of Georgia, charge and accuse (name of the accused) of the county and state aforesaid with the offense of _____; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same), contrary to the laws of said state, the good order, peace, and dignity thereof.

(b) If there should be more than one count, each additional count shall state:

And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse (name of the accused) with having committed the offense of _____; for that the said (name of the accused) (state with sufficient certainty the offense and the time and place of committing the same) contrary to the laws of said state, the good order, peace, and dignity thereof.

It is critical that any challenge to the form of a Georgia criminal indictment or accusation be filed within 10 days from the date of arraignment or such challenge to the indictment will be waived.

The Requirement of an Indictment in Georgia Felony Cases

Felony charges in Georgia must generally be brought by an indictment. OCGA § 17-7-70.1 provides some of the exceptions to the Georgia criminal indictment requirement:

(a)(1) In felony cases involving violations of the following:

(A) Code Sections 16-8-2, 16-8-14, 16-8-18, 16-9-1, 16-9-20, 16-9-31, 16-9-33, 16-9-37, 16-10-52, and 40-5-58;

(B) Article 1 of Chapter 8 of Title 16, relating to theft;

(D) Article 3 of Chapter 10 of Title 16, relating to escape and other offenses related to confinement; or

(E) Code Section 16-11-131, relating to possession of a firearm by a convicted felon or first offender probationer,

in which defendants have either been bound over to the superior court based on a finding of probable cause pursuant to a commitment hearing under Article 2 of this chapter or have expressly or by operation of law waived a commitment hearing, the district attorney shall have authority to prefer accusations, and the defendants shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.

Drug Charges That We Defend

It is no secret that the overwhelming majority of criminal cases in Georgia and throughout the United States are drug-related. We defend clients charged with the following types of drug charges:

Setting of Bond in Georgia Criminal Cases

For most people charged with a criminal offense in Georgia, the first consideration that must be is: how can I obtain a bond so that I can get out of jail? In Georgia, the setting of bond in criminal cases can vary widely from one county to the next. What is a reasonable bond in one county may be one-half of the cost in an adjacent county. Further, there are some jurisdictions that make getting a bond very difficult. Experienced criminal defense attorneys understand the nuances relating to the jurisdiction in which your case is pending SETTING OF BOND: WHICH COURT WILL SET BOND IN YOUR GEORGIA CRIMINAL CASE?

In determining how to obtain a bond, your lawyer must first know which court or judge to approach for the setting of bond. There is no much embarrassing event than approaching a magistrate for a bond and finding out that the magistrate does not have jurisdiction to set the bond amount.

How Long can I be Held Without Bail in a Georgia Criminal Case?

The first concern of anyone arrested for any criminal offense in Georgia is: when will bail be set so that I can post my bond and be released from jail? There is no requirement that you be bail be set or that you be granted a bond after you have been incarcerated for a period of time in Georgia.

THE BAD NEWS ABOUT ELIGIBILITY FOR BAIL/BOND IN GEORGIA CRIMINAL CASES

You can be held for a really long time without bail being set in a Georgia criminal case.

THE GOOD NEWS ABOUT ELIGIBILITY FOR BAIL/BOND IN GEORGIA CRIMINAL CASES

O.C.G.A. § 17-7-50 helps

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.

WHY IS THE REQUIREMENT THAT MY CHARGES BE PRESENTED TO GRAND JURY WITHIN 90 DAYS SO IMPORTANT?

Because criminal charges must be presented to a grand jury within 90 days from the date of confinement, you will either be released following a “no bill” from a grand jury or you’ll have the right to demand a statutory speedy trial demand

Make sure that you know what court must hear the motion for bond.

(a) The following offenses are bailable only before a judge of the superior court:

(1) Treason;

(2) Murder;

(3) Rape;

(4) Aggravated sodomy;

(5) Armed robbery;

(5.1) Home invasion in the first degree;

(6) Aircraft hijacking and hijacking a motor vehicle;

(7) Aggravated child molestation;

(8) Aggravated sexual battery;

(9) Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule I or under Code Section 16-13-26 as Schedule II;

(10) Violating Code Section 16-13-31 or Code Section 16-13-31.1 (sale of some drugs);

(11) Kidnapping, arson, aggravated assault, or burglary in any degree if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary in any degree, had previously been convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary in any degree, or one or more of the offenses listed in paragraphs (1) through (10) of this subsection;

(12) Aggravated stalking; and

(13) Violations of Chapter 15 of Title 16 (this chapter addresses gang activity).

Bond in Misdemeanor Cases in Georgia

(b)(1) All offenses not included in subsection (a) of this Code section are bailable by a court of inquiry. Except as provided in subsection (g) of this Code section, at no time, either before a court of inquiry, when indicted or accused, after a motion for new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail.

OCGA § 17-6-1. Subsection (g) of OCGA 17-6-1 addresses the availability of appeal (supersedeas) bonds:

The granting of an appeal bond to a person who has been convicted of any other felony offense or of any misdemeanor offense involving an act of family violence as defined in Code Section 19-13-1, or of any offense delineated as a high and aggravated misdemeanor or of any offense set forth in Code Section 40-6-391, shall be in the discretion of the convicting court.

Is There a Right to a Speedy Appeal in Georgia?

In some cases, we see delays of several years between the date of conviction and the docketing of an appeal in the Court of Appeals or Georgia Supreme Court. Many clients rightfully ask if there is any basis to demand a favorable judgment based on the delay.

And as the Supreme Court of Georgia has explained, although there is no Sixth Amendment right to a speedy appeal, “due process concepts necessarily become implicated when substantial delays are experienced during the criminal appellate process.” Accordingly, the analytical framework created by the four speedy-trial factors in Barker v. Wingo provides “a familiar, thorough and practical means of assessing the fairness and prejudice issues that arise in cases involving the delayed resolution of direct appeals from judgments entered on criminal convictions in which the death penalty was not imposed.”

The four Barker factors—the length of the delay, the reason for the delay, the defendant’s assertion of the right, and the prejudice to the defendant—are evaluated by trial courts in “a difficult and sensitive balancing process.” And we review a trial court’s conclusion after assessing these factors for an abuse of discretion. But here, we are precluded from considering this enumeration of error because, as demonstrated by the record that is before this Court, Chernowski failed to raise this issue below and may not raise it for the first time on appeal.

Chernowski v. State, No. A14A2151, 2015 WL 570691, at *3 (Ga. Ct. App. Feb. 12, 2015).

Your Right to a Direct Appeal From Denial of a Statutory Speedy Trial Demand

Do you have a right to a direct appeal from denial of a statutory speedy trial demand?

Yes, we do have a right of direct appeal from denial of a statutory speedy trial demand.

OCGA § 17-7-170 was enacted to implement the constitutional provision for a speedy trial. Stripland v. State, 115 Ga. 578, 41 S.E. 987 (1902). (The speedy trial provision is found in the 1983 Georgia Constitution at Art. I, Sec. I, Para. II.) In the absence of a right to a speedy trial the accused might suffer uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely. These values are of a magnitude similar to the values at stake in double jeopardy claims. The Supreme Court has pointed out that, in addition to the concern of being twice convicted, a double jeopardy claimant is concerned with “… embarrassment, expense and ordeal and compelling him to lie in a continuing state of anxiety and insecurity….” Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

In double jeopardy claims the accused is saying, “I may not now be tried because I have previously been placed in jeopardy.” In a claim based on OCGA § 17-7-170 the accused is saying, “I may not now be tried because the time during which I must have been placed on trial has passed.” The circumstances bearing on the right to appeal are analogous. Therefore, we hold that the denial of a motion to dismiss based upon OCGA § 17-7-170 is directly appealable under OCGA § 5-6-34(a).

Our answer to the first certified question of the Court of Appeals is that a criminal defendant is not required to follow the interlocutory procedures of OCGA § 5-6-34(b) when appealing, prior to the conclusion of a trial on the merits, from the denial of a plea in bar based on OCGA § 17-7-170.

Hubbard v. State, 254 Ga. 694, 695, 333 S.E.2d 827, 828 (1985).

Our appellate courts treat appealability of statutory and constitutional speedy trial demands very differently. Constitutional speedy trial demands and their denial are only appealable after following the interlocutory review procedure and getting a certificate of immediate review from the trial court.

How Is the Bond Amount Set in Georgia Criminal Cases

Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993), is the most important Georgia case addressing the factors that must be addressing in setting pre-trial bond in a criminal case:

A person charged with the offense of murder may obtain bail only before a superior court judge. OCGA § 17-6-1(a)(2). The purpose of a pretrial bond is to prevent punishment before a conviction and to secure the appearance of the person in court for trial. Roberts v. State, 32 Ga.App. 339, 340-41, 123 S.E. 151 (1924). The standards for determining whether to grant release prior to trial are based on the 1968 American Bar Association pretrial release standards. Lane v. State, 247 Ga. 387, 388, n. 2, 276 S.E.2d 644 (1981). The trial court may release a person on bail if the court finds the person:

(1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;

(2) Poses no significant threat or danger to any person, to the community, or to any property in the community;

(3) Poses no significant risk of committing any felony pending trial; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

OCGA § 17-6-1(e). The trial court must explain its reasons for denying bond to assist appellate review. Lane, 247 Ga. at 389, 276 S.E.2d 644. The granting or denial of bail will not be set aside unless there is a manifest and flagrant abuse of discretion. Jernagin v. State, 118 Ga. 307, 308, 45 S.E. 411 (1903).

This court has not addressed whether the state or the defendant has the burden of proof in pretrial bond hearings before a superior court. Neither the Lane opinion nor the law codifying the ABA standards specifies which party has the burden of proof or the evidentiary standard to be applied. See 1982 Ga.Laws 910, § 1.

Because of the phrasing of the statutory language, we conclude that the defendant has the burden of coming forward initially with evidence to show that he or she poses no significant risk of fleeing, threatening the community, committing another crime, or intimidating a witness. This burden of production means that a person charged with murder must present evidence at the bond hearing on factors that indicate roots in the community.² These factors include the defendant’s length and character of residence in the community, employment status and history, past history of responding to legal process, and prior criminal record. See Lane, 247 Ga. at 388, n. 2, 276 S.E.2d 644. Once the defendant meets the burden of production, the state may present *706 evidence to rebut it. Placing the burden of production on the defendant is fair because the accused is the best source of information on his or her community ties.

Ayala v. State, 262 Ga. 704, 705-06, 425 S.E.2d 282, 284 (1993).

A Complete Investigation Should Be Undertaken Even You Believe That You Should Enter A Guilty Plea To Charges

There is hardly any obligation of a criminal defense attorney that is more important than properly investigating your Georgia criminal case. If you face a criminal charge, beginning a thorough investigation as soon as possible is critical. In some jurisdictions in Georgia, it can be years before criminal cases get to trial. If your criminal defense attorney waits until prior to trial interview witnesses and investigate your case, evidence will like be stale, if it is even available.

Most good criminal defense attorneys understand that engaging in drastic, proactive mitigation tasks should be a basic part of ever felony case involving injury to another party. Likewise, investigating the actual facts of the case should be a part of every case, even if the defendant expresses a willingness to plead guilty.

A good guide for the duty and obligation of criminal defense lawyers to investigate pending cases is found in the ABA Criminal Justice Standards. ABA Criminal Justice Standards 4-4.1(a) provides:

Defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists accused’s admissions or statements to defense counsel of facts constituting guilt or the accused’s stated desire to plead guilty.

One of the critical points in the ABA’s standard is that the lawyer is to investigate the case even if the client has made admissions regarding the charges or expressed a willingness to plead guilty.

Planning for Scientific Evidence in Georgia Criminal Cases

Most lawyers say that the reason that they became a lawyer was because they weren’t good at math or science. Some are joking. Some are not joking. Either way, a criminal defense attorney who is on the cutting edge of his or her practice recognizes that this joke better not be true. Modern criminal defense requires attorneys to understand the law governing the admissibility of scientific evidence and the limitations of this evidence. Criminal defense attorneys must be able to understand and explain these technical pieces of evidence in a way that people without any scientific training can understand.

Your lawyer must understand the law governing the admissibility of scientific evidence. Your lawyer must understand the scientific evidence (and the weaknesses of the evidence). If you are being investigated by the government or if you have criminal charges pending against you, it is essential to begin developing a litigation strategy, and an essential part of developing a litigation strategy is understanding what types of evidence you will confront in the case.

Setting in motion a strategic plan to address scientific evidence in your Georgia criminal defense case:

Know your jurisdiction and, more specifically, your judge. Is your judge a “let it all in and let the jury sort it” kind of judge? Or, is your judge the type of judge that will hold the state to it’s burden when assessing the admissibility of the scientific evidence? If your judge is the type of judge that will actually exclude unreliable scientific evidence, well-briefed motions need to be prepared on the specific evidentiary items that need to be excluded.
If your judge is not the type of judge that will actually exclude unreliable evidence, some difficult strategic decisions need to be made: (1) will you file a motion that will educate the State on what your arguments will be at trial; or, will you waive an issue that might otherwise win on appeal? Challenges to the admissibility of scientific evidence are arguments that you can make to the jury in a criminal trial. When possible, you want to rely upon the State’s evidence or a lack of foundation for the admission of scientific evidence to challenge the admissibility of scientific evidence in a criminal case. If you can make the State’s witnesses make certain crucial admissions regarding the unproven reliability of the scientific evidence, you have made substantial progress towards challenging the admissibility of scientific evidence in a criminal case.
However, you and your lawyer need to make some strategic decisions that might impact your future at a very early stage of the case – well in advance of trial – regarding challenges to scientific evidence that will be raised in your case. It is critical that these decisions be well thought-out and considered. You will need an experienced criminal trial attorney to advise you on what should be held back until the time of trial and what should be challenged through aggressive and detailed pre-trial motions.

Georgia Medicaud Fraud Law: Who Does It Apply To?

As used in this Code section, the term:

“Agent” means any person who has been delegated the authority to obligate or act on behalf of a provider.
“Convicted” means that a judgment of conviction has been entered by any federal, state, or other court, regardless of whether an appeal from that judgment is pending.
“Indirect ownership interest” means any ownership interest in an entity that has an ownership interest in the provider entity. The term includes an ownership interest in any entity that has an indirect ownership interest in the provider entity.
“Managing employee” means a general manager, business manager, administrator, director, or other individual who exercises operational or managerial control over, or who directly or indirectly conducts, the day-to-day operation of the institution, organization, or agency.
“Payment” includes a payment or approval for payment, any portion of which is paid by the Georgia Medicaid program, or by a contractor, subcontractor, or agent for the Georgia Medicaid program pursuant to a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.
“Person” means any person, firm, corporation, partnership, or other entity.
“Person with an ownership or control interest” means a person who:

(A) Has ownership interest totaling 5 percent or more in a provider;
(B) Has an indirect ownership interest equal to 5 percent or more in a provider;
(C) Has a combination of direct and indirect ownership interests equal to 5 percent or more in a provider;
(D) Owns an interest of 5 percent or more in any mortgage, deed of trust, note, or other obligation secured by the provider entity if that interest equals at least 5 percent of the value of the property or assets of the provider;
(E) Is an officer or director of a provider that is organized as a corporation; or
(F) Is a partner in a provider entity that is organized as a partnership.
“Provider” means an actual or prospective provider of medical assistance under this chapter. The term “provider” shall also include any managed care organization providing services pursuant to a managed care program operated, funded, or reimbursed by the Georgia Medicaid program.

Georgia Medicaid Fraud: What Is It That Is Illegal?

It shall be unlawful:

For any person or provider to obtain, attempt to obtain, or retain for himself, herself, or any other person any medical assistance or other benefits or payments under this article, or under a managed care program operated, funded, or reimbursed by the Georgia Medicaid program, to which the person or provider is not entitled, or in an amount greater than that to which the person or provider is entitled, when the assistance, benefit, or payment is obtained, attempted to be obtained, or retained, by:

Knowingly and willfully making a false statement or false representation;
Deliberate concealment of any material fact; or
Any fraudulent scheme or device; or
For any person or provider knowingly and willfully to accept medical assistance payments to which he or she is not entitled or in an amount greater than that to which he or she is entitled or knowingly and willfully to falsify any report or document required under this article.

Any person violating paragraph (1) or (2) of subsection (b) of this Code section shall be guilty of a felony and, upon conviction thereof, shall be punished for each offense by a fine of not more than $10,000.00, or by imprisonment for not less than one year nor more than ten years, or by both such fine and imprisonment. In any prosecution under this Code section, the state has the burden of proving beyond a reasonable doubt that the defendant intentionally committed the acts for which he or she is charged.
- Any person committing abuse shall be liable for a civil monetary penalty equal to two times the amount of any excess benefit or payment. This penalty shall be collected on the same terms as a penalty imposed pursuant to subsection (d) of this Code section, except as to the amount specified in items (1) and (2) of that subsection, but shall not be imposed cumulatively with a penalty under such subsection.

Abuse is defined as a provider knowingly obtaining or attempting to obtain medical assistance or other benefits or payments under this article to which the provider knows he or she is not entitled when the assistance, benefits, or payments are greater than an amount which would be paid in accordance with those provisions of the department’s policies and procedures manual which are adopted pursuant to public notice, and the assistance, benefits, or payments directly or indirectly result in unnecessary costs to the medical assistance program. Isolated instances of unintentional errors in billing, coding, and costs reports shall not constitute abuse. Miscoding shall not constitute abuse if there is a good faith basis that the codes used were appropriate under the department’s policies and procedures manual and there was no deceptive intent on the part of the provider.

(d) In addition to any other penalties provided by law, each person violating subsection (b) of this Code section shall be liable to a civil penalty equal to the greater of (1) three times the amount of any such excess benefit or payment or (2) $1,000.00 for each excessive claim for assistance, benefit, or payment. Additionally, interest on the penalty shall be paid at the rate of 12 percent per annum from the date of payment of any such excessive amount, or from the date of receipt of any claim for an excessive amount when no payment has been made, until the date of payment of such penalty to the department.
(e)(1) Whenever the commissioner proposes to recover an amount provided for in subsection (d) of this Code section, he shall give 30 days’ written notice of his intended actions. The notice shall inform the person in violation of subsection (b) of this Code section of his right to a hearing, the method by which he may obtain a hearing, and that he may be represented by an authorized representative, such as legal counsel, relative, friend, or other spokesman, or that he may represent himself.

(2) All hearings held by virtue of this subsection shall be conducted in the same manner as any other contested case within the department and shall be subject to the rules and regulations regarding hearings within the department. As in all contested cases within the department, the person against whom the commissioner is proceeding under this subsection shall have the right to appeal any adverse administrative decision to the superior court of the county of his residence or to the Superior Court of Fulton County once he exhausts all administrative remedies within the department.
(3) If the person against whom the commissioner is proceeding under this subsection fails to request a hearing or fails to exhaust all administrative remedies within the department, then his case shall be treated as an unappealed administrative decision. In any unappealed administrative decision where the aggrieved party fails to request a hearing or fails to exhaust all administrative remedies, the commissioner shall issue an order to the person against whom the commissioner is proceeding, directing payment of any amount found to be due pursuant to subsection (d) of this Code section within ten days after service of the order. Upon failure to comply with the commissioner’s order, the commissioner may issue a certificate to the clerk of the superior court of the county of residence of the person who is the subject of the order. A copy of such certificate shall be served upon the person against whom the order was entered. Thereupon, the clerk shall immediately enter upon his record of docketed judgments the name of the person so indebted, that the debt is owed to the state, a designation of the statute under which such amount is found to be due, the amount due, and the date of the certification. Such entry shall have the same force and effect as the entry of a docketed judgment in the superior court. Such entry on the docket by the commissioner shall be without prejudice to the right of the aggrieved party to contest such entry by affidavit of illegality or as otherwise provided by law.

(f) The department may refuse to accept a statement of participation, deny a request for reinstatement, refuse to exercise its option to renew a statement of participation, suspend or withhold those payments arising from fraud or willful misrepresentation under the Medicaid program, or terminate the participation of any provider other than a natural person if that provider or any person with an ownership or control interest or any agent or managing employee of such provider has been:

(1) Convicted of violating paragraph (1) or (2) of subsection (b) of this Code section;
(2) Convicted of committing any other criminal offense related to any program administered under Title XVIII, XIX, or XX of the Social Security Act of 1935,¹ as amended; or
(3) Excluded or suspended from participation in the medicare program for fraud or abuse.
In making a decision pursuant to this subsection, the department shall consider the facts and circumstances of the specific case, including but not limited to the nature and severity of the crime or violation and the extent to which it adversely affected medical assistance recipients and the program.

(g) The department shall refuse to accept a statement of participation, deny a request for reinstatement, refuse to exercise its option to renew a statement of participation, or terminate the participation of any provider who is a natural person if that provider or any agent or managing employee of such provider has been convicted of:

(1) Violating subsection (b) of this Code section; or
(2) Committing any other criminal offense related to any program administered under Title XVIII, XIX, or XX of the Social Security Act of 1935, as amended.

(h) The department shall reinstate a provider whose participation in the medical assistance program was terminated pursuant to subsection (f) or (g) of this Code section if the conviction upon which the termination was based is reversed or vacated or if the decision of the administrative law judge is reversed in accordance with the department’s rules and regulations.
(i) It shall be the duty of the department to identify and investigate violations of this article and to turn over to the prosecuting attorney, for prosecution, any information concerning any recipient of medical assistance who violates this article.
(j) As necessary to enforce the provisions of this article, the department or its duly authorized agents may submit to the state revenue commissioner the names of applicants for medical assistance or other benefits or payments provided under this article, as well as the relevant income threshold specified therein. If the department elects to contract with the state revenue commissioner for such purposes, the state revenue commissioner and his or her agents or employees shall notify the department whether or not each submitted applicant’s income exceeds the relevant income threshold provided. The department shall pay the state revenue commissioner for all costs incurred by the Department of Revenue pursuant to this subsection. No information shall be provided by the Department of Revenue to the department without an executed cooperative agreement between the two departments. Any tax information secured from the federal government by the Department of Revenue pursuant to express provisions of Section 6103 of the Internal Revenue Code may not be disclosed by the Department of Revenue pursuant to this subsection. Any person receiving any tax information under the authority of this subsection is subject to the provisions of Code Section 48-7-60 and to all penalties provided under Code Section 48-7-61 for unlawful divulging of confidential tax information.

Using Medical Records in Georgia Criminal Cases

With the adoption of the Federal Rules of Evidence in Georgia, the ability of the criminal defendants to use medical evidence has been greatly expanded. When there is favorable medical evidence that criminal defense lawyers are aware of, we would always like for the actual witness to be present to testify at trial. However, it often is simply not possible with the way that criminal calendars are run in Georgia criminal cases to have medical professionals testify live. A few of the reasons why live medical testimony is difficult to obtain in Georgia criminal cases are:

Criminal trial calendars in Georgia are frequently “on-call” calendars. During on-call calendars, a set trial date is not provided by the Court. You will be called for trial with a certain period of notice – usually 2 – 8 hours.
Medical witnesses really, really value their time, and they usually want to be paid as experts for their opinions.
Medical witnesses are generally very reluctant to appear and testify on behalf of anyone other than the State. Criminal defendants, in particular, are usually not the people that they want to help.

As a result, criminal defendants were frequently unable to introduce medical evidence. There is a solution to this problem now.

Ga. Code Ann. § 24-9-902 states, in relevant part:

(11) The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under paragraph (6) of Code Section 24-8-803 if accompanied by a written declaration of its custodian or other qualified person certifying that the record:
(A) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of such matters;
(B) Was kept in the course of the regularly conducted activity; and
(C) Was made by the regularly conducted activity as a regular practice.

A party intending to offer a record into evidence under this paragraph shall provide written notice of such intention to all adverse parties and shall make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge such record and declaration; or

O.C.G.A. § 24-8-803 states:

(6) Records of regularly conducted activity. Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. The term “business” as used in this paragraph includes any business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Public records and reports shall be admissible under paragraph (8) of this Code section and shall not be admissible under this paragraph;

Our Criminal Defense Attorney Understand The Importance Of Investigation Your Georgia Criminal Case

Investigating your Georgia criminal case is a step that cannot be recreated later. If you are facing a criminal charge or investigation in Georgia, contact the criminal defense attorneys at Sessions & Fleischman.

Speedy Trial Rights in Your Criminal Case

It is not always the case that the passage of time helps your defense, particularly if your criminal defense lawyer is continuously asking for continuances. Many criminal defense lawyers in Georgia mistakenly tell people that the passage of time always helps the defense. This is dangerous advice, and the advice is even more dangerous if a defense lawyer is seeking a continuance from the court to put age on the case. Not every defense gets better with age, and asking for a continuance can actually hurt viable defenses to the charge.

Every criminal defendant in Georgia (and the United States) has a constitutional right to a speedy trial. However, in determining whether the right to a speedy trial has been violated, one of the considerations that the trial court will have is whether the defendant (and his attorney) have contributed to or caused the delay.

SPEEDY TRIAL ATTORNEY THAT KNOWS HOW TO PROTECT YOUR RIGHTS

In addition to the constitutional right to a speedy trial, in Georgia, criminal defendants have the right to demand a speedy trial pursuant to statute. This is an important right and, in some cases, it may be the only viable opportunity to win the case. If the State fails to bring your case to trial within the designated period of time and you have requested a statutory speedy trial, your case will be dismissed. So, before you follow advice that an older case will always be better for you, recognize that delaying the case may forfeit some of your best possible defenses.

Contact an attorney at Sessions Law Firm by calling (470) 225-7710. We can determine the best way for you to proceed with our free consultation.

A GUIDE TO REMOVING A BENCH WARRANT FOR A MISSED COURT DATE

There is nothing more frightening than an outstanding bench warrant. The fear and anxiety that accompany the idea that law enforcement officers may knock on your door at any moment to arrest can really drive people to do extreme things. In the vast majority of cases, bench warrants for missed court dates can be resolved relatively painlessly. However, there are a few general rules that should be followed by everyone facing an outstanding bench warrant:

Never “stick your head in the sand” in the hopes that an outstanding bench warrant from a missed court date will miraculously go away. The ostrich approach to outstanding bench warrants emphatically doe not work.
Act quickly to resolve an outstanding warrant. Mistakes are made. Most judges and prosecutors simply want cases to move along. Keeping someone in jail for a missed court date generally does not advance that cause. Seeking to correct the mistake sooner, rather than later, is an important first step to removing a bench warrant for a missed court date.
Do not lie about why you missed court. People, including lawyers, say the craziest things when they miss court. People make up stories that are so outlandish that even the most forgiving judges cannot help them. Don’t be stupid and make up a lie about why you missed court that will only make your problem worse. If you don’t have a good and honest reason for missing court, say you’re sorry, that you made a mistake, and ask for forgiveness.
If possible, retain a lawyer that knows the local court system and, perhaps most importantly, will commit the time and effort required to work to clear the bench warrant.

Non-Residents Should be Careful About Entering a Plea in Georgia

If you reside outside of Georgia and you are considering entering a plea to a criminal charge pending in Georgia, it is absolutely imperative that you consider the impact of the Interstate Commission for Adult Offender Supervision on your sentence.

For a person with a criminal case pending in Georgia and seeking to have their probation or parole transferred to another state, Georgia is the sending state and their home state is the receiving state. If the person resides outside of the state, the receiving state is required to accept the transfer of probation or parole. However, there is discretion on behalf of the sentencing/sending state about whether the probation or parole will be transferred. Below is the general rule of the Interstate Compact regarding the transfer for a resident of another state:

Rule 3.101 – Mandatory transfer of supervision

At the discretion of the sending state, an offender shall be eligible for transfer of supervision to a receiving state under the compact, and the receiving state shall accept transfer, if the offender:

(a) has more than 90 calendar days or an indefinite period of supervision remaining at the time the sending state transmits the transfer request; and

(b) has a valid plan of supervision; and

(d) is a resident of the receiving state; or

(e)(1) has resident family in the receiving state who have indicated a willingness and ability to assist as specified in the plan of supervision; and
(2) can obtain employment in the receiving state or has means of support.

SO, WHAT DOES ALL THIS MEAN IF YOU’RE CONSIDERING ENTERING A PLEA TO A GEORGIA CRIMINAL DEFENSE CASE BUT RESIDE OUTSIDE OF GEORGIA?

You have to know that if you enter a plea to a criminal offense, particularly a felony, there will almost certainly be a period of time during which you are not eligible to leave the state of Georgia.

Currently, in Georgia, we are not seeing the Interstate Compact have any effect on misdemeanor convictions in State Court. State Courts only have jurisdiction over misdemeanor offenses. However, the Interstate Compact suggests that misdemeanor DUI defendant, particularly those facing a 2nd or more DUI conviction, may be subject to the requirements of the Interstate Compact:

Eligibility for Transfer includes:

Sentence or release from incarceration with community-based supervision and the
offender is:

A felon, or

misdemeanant whose sentence includes one year or more of supervision
and the underlying offense includes one or more of following:

(1) an offense in which a person has incurred direct or threatened physical
or psychological harm;

(2) an offense that involves the use or possession of a firearm;

(3) a second or subsequent misdemeanor offense of driving while impaired
by drugs or alcohol;

(4) a sexual offense that requires the offender to register as a sex offender
in the sending state.

If you have questions regarding the effect a criminal conviction may have on your ability to relocate, contact the criminal defense attorneys at Sessions & Fleischman. We may be reached at (470) 225-7710.

What do you do when a prosecutor in a case makes a plea recommendation to resolve the case that you believe to be unfair?

What do you do when a prosecutor in a case makes a recommendation to resolve the case that you believe to be unfair? One that doesn’t really fit the crime that you’re accused of at all? Or let’s say for example, that you have a very defensible case, a very winnable case, and the prosecutor looks at it and says, no, I’m not offering an amendment or reduction of the charges. In your case, what happens if you’re assigned to a judge in which if you lose after our trial, and you have to know whenever you go into a jury trial for almost all of us, um, even if the facts are very favorable to us, juries are extremely unpredictable. What happens whenever you go to jury trial and you lose in front of that judge? What happens if, if that judge, for example, imposes a very heavy jail sentence, even for a person that’s charged with a misdemeanor that has no prior criminal history whatsoever, these are real questions.

These are ones that my clients have to face pretty regularly. It’s not uncommon for judges to be extremely punitive for people who exercise their right to a jury trial. It’s not right. It’s not fair. It’s not what should happen, but it is realities of a lot of cases. Um, in a lot of cases, there are prosecutors who are just unwilling to really fairly look at, um, at what their evidence is and try to make a decision that may be hard for them. That is not at all unusual. And what I want, what I like for clients to know is there are some lawyers that you’re going to talk to on the front end who are going to talk to you about those problems. Um, there are some lawyers who are going to say candidly to you, this is the judge that you’re assigned to. This is the prosecutor who’s going to be handling your case.

And for the most part in the jurisdictions in which I regularly practice, I knew those judges, I knew those prosecutors who handle cases in that way. And I will try to tell clients up front, Hey, this is a really hard decision that you’re activating. Let’s say for example, that, um, a client comes in and really truly believes that they have a great case to defend. I need to let them know at the front end, Hey, these are hard decisions you’ve got to make about whether or not you are willing to take the risk of jail in order to exercise your right to a trial. And you need to just know that on the front end. And it’s something that we can work through in a lot of cases and try to decide whether or not you actually want to make that decision or not. Um, but it is a decision that you need to be considering at the outset of the case because you don’t want to be going through a year, two years of litigation, go through pretrial motions.

You fought all the way to the end and then capitulate to the pressure of, Hey, you’re going to face 30 days in jail that you could have made that decision two years ago without all the stress and heartache and having this thing just hanging over your head for all that long. It’s really important that the lawyer that you speak with, be candid and be honest with you about those decisions. I mean, Hey, for me it might very well mean that I will lose some business from clients. Clients don’t want to hear a lot of times that that is a risk that they’re going to face if they go to a trial. But for most of my clients who actually do retain me, and I’ve been honest with them about what it is we’re going to look at on the, on the back end of the case, if I can’t talk to a prosecutor into reducing or dismissing it, those people really appreciate the fact that upfront I told them what it is that they did, they would face up front. I told them what the process will look like and the hard decisions they would have to make.

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).

Liability of the Property Owner for Failing to Prevent Criminal Activity

Can a property owner be held liable for failing to act to prevent harm caused by criminal activity? In Georgia, a business owner that fails to take steps (or takes inadequate steps) to prevent harm caused by criminal activity can be held liable for the harm that a person suffers. The question that arises in many of these types of premises liability cases is whether the harm was reasonably foreseeable to the business owner, and the facts that we rely upon to establish that the business owner should have done more to prevent the injury can take many different forms.

In  Carlock v. Kmart Corp, Cub Foods was one of the defendant business property owners that the plaintiff sought to recover from as a result of the failure to investigate and take steps to prevent criminal activity in a parking lot. The plaintiff attempted to rely upon prior robberies to establish that Cub Foods should have take steps to prevent the criminal activity. However, the prior criminal activity that the plaintiff relied upon occurred prior to Cub Food occupying the space in which the crime occurred. Should Cub Foods have inquired of the lessor of the property about prior criminal activity in the location.

In Sun Trust Banks v. Killebrew, 266 Ga. 109, 464 S.E.2d 207 (1995), our supreme court found no authority in this state imposing a duty on a property owner to investigate police files to determine whether criminal activities have occurred on its premises. The Court refused to impose such a duty in Killebrew, where testimony by the bank’s security chief did not establish that the bank’s “duty to investigate crimes on its property encompassed seeking out police reports of incidents not reported to the bank.” Id. at 109–110, 464 S.E.2d 207.

We likewise refuse to impose a similar duty on Cub Foods in this case. We are aware of no authority requiring a commercial tenant of a shopping center to investigate police files or the files of its landlord to determine whether criminal activities occurred in the parking lot prior to its occupancy. Furthermore, the testimony of Cub Foods’ corporate loss prevention manager indicates that Cub Foods never had such a policy. Under these circumstances, we find that no genuine issue of foreseeability exists on this ground. See id.

 Carlock v. Kmart Corp, 227 Ga. App. 356, 357-58, 489 S.E.2d 99, 101-02 (1997).

WHAT DO YOU DO WHEN THERE IS NO GREAT REASON FOR A NEW TRIAL BUT THE CONVICTION JUST “ISN’T RIGHT”?

There are times when there are no real errors in rulings by the trial court and the performance of trial counsel really does not appear ineffective, but the jury verdict bothers us. The verdict just does not feel right to us. Perhaps there was too much conflict in the State’s evidence. Perhaps there was real credibility issues with the State’s law witnesses that were central to the State’s case. There can be any number of reasons why a criminal conviction does not feel right to us, but we must have a vehicle to allow the trial court to help us.

Well, here it is:

As this Court has clearly explained,

Even when the evidence is legally sufficient to sustain a conviction [under the Jackson v. Virginia standard], a trial judge may grant a new trial if the verdict of the jury is “contrary to … the principles of justice and equity,” OCGA § 5–5–20, or if the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5–5–21.

When properly raised in a timely motion, these grounds for a new trial—commonly known as the “general grounds”—require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’ ” In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless—it is, after all, a discretion that “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict”—it nevertheless is, generally speaking, a substantial discretion.White, 293 Ga. at 524, 753 S.E.2d 115 (citations and footnote omitted). An appellate court will not disturb the first grant of a new trial based on the general grounds unless the trial court abused its discretion in granting it and the law and the facts demand the verdict rendered. See State v. Cash, 298 Ga. 90, 95, 779 S.E.2d 603 (2015). See also OCGA § 5–5–50.

State v. Hamilton, No. S16A0986, 2016 WL 4729562, at *3 (Ga. Sept. 12, 2016).

WHAT DOES A NEW TRIAL ORDER ON THESE GROUNDS LOOK LIKE?

General grounds for a new trial.

Even when the evidence is legally sufficient to sustain a conviction [under the Jackson v. Virginia standard], a trial judge may grant a new trial if the verdict of the jury is “contrary to … the principles of justice and equity,” OCGA § 5–5–20, or if the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5–5–21. When properly raised in a timely motion, these grounds for a new trial—commonly known as the “general grounds”—require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’ ” In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless—it is, after all, a discretion that “should be exercised with caution [and] invoked only in exceptional cases in which the evidence preponderates heavily against the verdict”—it nevertheless is, generally speaking, a substantial discretion.

State v. Hamilton, No. S16A0986, 2016 WL 4729562, at *3 (Ga. Sept. 12, 2016) (citations omitted).
This Court has carefully reviewed the trial transcript and exhibits and considered the conflicts in the evidence, the credibility of the witnesses, and the weight of their testimony and the Court has concluded that the jury’s guilty verdicts were decidedly and strongly against the weight of the evidence and contrary to the principles of justice and equity. Accordingly, the court exercises its discretion to grant the Defendant a new trial.

Accordingly, IT IS ORDERED that Defendant’s Motion for New Trial is GRANTED.

THE APPEALS PROCESS FROM A CITY ORDINANCE TRIAL IN GEORGIA MUNICIPAL COURTS

There are several municipal courts throughout Georgia that you have to be very careful in. For example, the Sandy Springs Municipal Court regularly seeks to impose exceptionally large penalties upon those charged with city ordinance violations, particularly prostitution, solicitation, and public intoxication charges. If you have been charged with a city ordinance violation that is seeking to impose what may seem like an exceptionally harsh sentence for a city ordinance charge, you and your lawyer must understand the appeals process from a city ordinance trial.

The first thing that you and your lawyer need to know about the appeals process from a city ordinance trial is how to stop the enforcement of the jail time imposed in connection with a conviction.

(a) Any person who has been convicted of any criminal or quasi-criminal offense or violation of any ordinance, in any inferior judicatory by whatever name called, except constitutional city courts or state courts, exercising criminal or quasi-criminal jurisdiction, who desires a writ of certiorari to review and correct the judgment of conviction in the case shall be entitled to a supersedeas of the judgment if he files with the clerk of the court, or, if there is no clerk, with the judge thereof, or with the commissioners if it is a court presided over by commissioners with no clerk, a bond payable to the state, or, if the conviction is in a municipal court, payable to the municipality, in amount and with security acceptable to and to be approved by the clerk, judge, or majority of the commissioners, as the case may be, conditioned that the defendant will personally appear and abide the final judgment, order, or sentence upon him in the case. The bond, if payable to the state, may be forfeited in the same manner as any other criminal bond in any court having jurisdiction. If the bond is payable to the municipal corporation, it may be forfeited according to the procedure prescribed in the municipal ordinance or charter. Alternatively, an action may be brought on the bond in any court having jurisdiction. Upon the giving of bond the defendant shall be released from custody in like manner as defendants are released upon supersedeas bonds in criminal cases where a notice of appeal has been filed.

O.C.G.A. § 5-4-20.

ARE YOU LOOKING FOR A LAWYER TO HELP WITH REMOVAL FROM GEORGIA’S SEX OFFENDER REGISTRY?

We are going to use this post to provide up-to-date reliable information about how to seek removal from Georgia’s sex offender registry. The post will be periodically updated to provides tips and insights on what is (and is not) working in the presentation of these issues to the courts.

GEORGIA SEX OFFENDER REGISTRY REMOVAL: KNOW THE DEFENDANT

It seems completely intuitive, but one of the most important things that any lawyer representing a defendant in the effort to be removed from the sex offender registry can do is to know the defendant.

You are not re-litigating the original case, but you need to have an understanding of the facts that are the basis for the conviction of an offense that required sex offender registration.
Know the time that has elapsed since the defendant completed his/her sentence.
Know the defendant’s current family composition.
Know how long the defendant has resided at his/her current address.
Know the defendant’s employment history.
Know how long the defendant has been at his/her current job.

How Will COVID-19 Impact My Court Date in Georgia?

Georgia Supreme Court Justice Harold Melton recently extended the statewide judicial emergency through June 12, 2020. Despite many businesses in Georgia reopening after the shelter-in-place restrictions were widely lifted, Georgia courts will remain closed to non-essential services until next month when the shelter-in-place recommendation for the high-risk community also expires. As a result, criminal and civil trials remain on hold.

Wondering what the court closure means for your case? If you have pending DUI charges, COVID-19 may impact your case by postponing court dates, extending deadlines, and even affecting the outcome of your case.

Here are a few things you should know.

What can I expect?

You should expect lengthy delays in your case due to the judicial emergency declaration. However, know that while your court appearances may be rescheduled for a later date, there will also be more time for filing with extended deadlines. This means you may have up to sixty days to send in your 30-Day Letter. Contact your attorney to learn more and check out the COVID-19 resources through the Georgia Department of Driver Services.

Is my case considered “essential?”

Only “essential functions” of the court are permitted during the shelter-in-place restrictions. All non-essential hearings, filing deadlines, and trials will be postponed. Essential functions include:

Addressing an immediate liberty or safety concern
Issuing arrest and criminal search warrants
Initial appearances and bond reviews for criminal matters
Temporary protective orders and restraining orders for domestic abuse matters
Delinquency detention hearings and emergency removals for juvenile matters
Mental health commitment hearings

Accordingly, unless there is a first appearance or bond review scheduled in your case during the court’s closure, your case will likely be delayed because it is not considered essential.

However, because each jurisdiction has discretion as to which cases are considered essential, it is important to remain in contact with your attorney and/or the court where your case is pending for status updates.

Will my court date be rescheduled because of COVID-19?

Because it is likely that your hearing dates will be rescheduled, you must remain in contact with your attorney for updates. Trials, hearings with the Department of Driver Services, and other related steps in your DUI case will likely be postponed.

What types of hearings are being held virtually in Georgia during COVID-19?

Only essential hearings including jail calendars, probation revocation hearings of accused persons in custody, and bond reviews are widely being conducted through teleconferencing. However, each court can determine which cases can continue with virtual hearings. As such, it is important to remain in contact with your attorney and/or the court for calendar updates.

How might the court handle mitigating factors like classes and volunteer work during COVID-19?

If you are unable to attend classes or volunteer opportunities due to the COVID-19 pandemic, look for virtual opportunities to meet your obligations. There are many remote volunteer opportunities and classes available.

Due to pandemic-related closures, the deadlines for any court-mandated service or class obligations will likely be extended. If you have questions about your case, I encourage you to contact our office for a free consultation.

What Happened to the State’s Burden of Proof in Criminal Cases in Georgia?

A lot of criminal defense attorneys are justifiably concerned about whether a handful of Georgia trial court judges are doing everything that they can to diminish the requirement that the State prove its allegations beyond a reasonable doubt. One of the foremost areas of concerns is the trend towards allowing jury questions. So, how bad can this be? Would jurors really want to ask questions of witnesses in a criminal trial? The answer is unequivocally yes if Hernandez v. State is any indication:

At the beginning of the trial, the court told the jurors that they could submit written questions for the witnesses. After each witness had been examined by the parties, the jurors could submit their questions, if any, to the court. The questions were then shared with counsel, who were given an opportunity to object before the court posed any questions it found proper to the witness. The parties were also allowed to ask follow-up questions to the witness. Using this procedure, the trial court asked more than 70 questions from the jury; the jurors submitted no questions for some witnesses, while the court asked other witnesses more than ten jury questions.

Hernandez v. State, 299 Ga. 796, 798–99, 792 S.E.2d 373, 376 (2016).

What must the state introduce at a motion to suppress hearing for evidence obtained through a search warrant?

If you are defending DUI cases in Georgia, you are almost certainly going to see a case that involves a DUI blood test obtained through a search warrant. This is going to be a more frequent concern in DUI cases in Georgia. This post discusses what evidence the State must introduce in order to establish the validity of a search warrant.

This is a template that you can easily adapt for DUI blood search warrant cases:

MTS – Search Warrant.docx

Transcript:

So, one of the things that we’re hearing continuously after Elliott versus State is that a lot of prosecutors are saying that they’re going to begin seeking search warrants in a lot more cases and if you’re really, really, dealing with misdemeanor DUI cases, one of the things that you don’t really see a lot of are search warrants. Particularly search warrants for blood and those are things that are, if they actually follow through with this strategy, seeking search warrants instead of using implied consent, that’s something that we really need to be concerned about. And if you haven’t handled search warrant cases, they are a little bit different and in some ways a lot more predictable than your typical consent search case. So, instead of going to court and wondering what your officers is going to say, you know what it is the officers going to say except for in a very narrow situation, at the search warrant hearing. So, you’re what you’re going to do is you’re going to rely upon but the search warrant and the underlying affidavit.

What you really need to be careful, be aware of as you’re approaching the hearing is if the search warrant indicates that there was oral testimony that was relied upon by the magistrate in issuing the search warrant. So, when first to begin, whenever you’re preparing for a motion to suppress hearing, know the State still has certain burns even though they’re relying upon a search warrant in your DUI blood test case. So, if you have a case in which there is in fact a search warrant don’t just think that, oh they got a warrant that’s the end of the deal, it’s not the end of the deal all. Instead at the search warrant the motion to suppress hearing for the search warrant the States required first to introduce evidence of the search warrant and they’re required to introduce the actual affidavit or evidence that the magistrate relied upon in the issue of the search warrant. It’s not enough for them to just bring in the officers who allegedly testified to the magistrate as to probable cause there required to actually show and introduce the evidence that the magistrate relied upon in an issue of the search warrant. Typically that is in the form of an affidavit, so if you had a search warrant case in which a magistrate just relied upon the affidavit there’s only the indication that the magistrate only looked at the affidavit in issuing search warrants, well then what you should have the prosecutor in that case is they should introduce evidence of the search warrant and they should introduce the underlying affidavit, if they don’t introduce evidence of the affidavit your motion to suppress should be granted, that is clear. The case that you should rely upon is Watts versus State, 274 Georgia 373. I’m going to make a post this is going to be mentioned and explanation or description of this video. I’ll include that and that citation in the relevant portions from Watts versus State in that post, so you’ll have that information.

It is really important that we begin to look closely at the search warrants look closely at the affidavits both to challenge, for example, it in a lot of the DUI cases we’ll see in the search warrant affidavit that the officer claims that my client refusing to submit to you field sobriety tests, my client refusing to submit to a preliminary breath test, supports his decision there was a probable cause to seek a search warrant in the case. We know from Miley Mackey Gardner Kwiatkowski, that that is an improper statement that’s included in that affidavit, that should be stricken from the affidavit and probable cause evaluated exclusive of that information. So, we need really need to start kind of digging into more traditional search warrant cases and looking at our search warrants and the affidavits in learning to challenge the admissibility of that evidence in our DUI cases. If you have questions about search for case, if you need any help feel, free to call me. My name is Ben Sessions, my phone number is 470-225-7710. Again, 470-225-7710, thank you.

Do you need a template motion to suppress for a search warrant?

MTS – Search Warrant.docx