2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 1 - General Provisions
§ 17-1-1. Filing and Service of Pleadings, Motions, and Other Papers

1. Unless otherwise provided by law or by order of the court, every pleading subsequent to the entry of the initial indictment or accusation upon which the defendant is to be tried; every order not entered in open court; every written motion, unless it is one as to which a hearing ex parte is authorized; and every written notice, demand, and similar paper shall be served upon each party.
2. 1. Where service is required to be made, the service shall be made upon the party's attorney unless service upon the party himself is ordered by the court. Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court.
   2. As used in this subsection, delivering a copy means:
      1. Handing it to the attorney or to the party;
      2. Leaving it at his office with his clerk or other person in charge thereof; or
      3. If the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
   3. Service by mail shall be deemed complete upon mailing.
3. All original papers, copies of which are required to be served upon parties, shall be filed with the court either before service or immediately thereafter.
4. The filing of pleadings and other papers with the court shall be made by filing them with the clerk of the court unless the judge permits the papers to be filed with him, in which event he shall note thereon the filing date and transmit them to the office of the clerk.
5. 1. Proof of service may be made by certificate of an attorney or of his employee, written admission, affidavit, or other proof satisfactory to the court. Failure to make proof of service shall not affect the validity of service.
   2. When an attorney executes a certificate, which shall be attached to the original of the paper to be served, certifying as to the service thereof, the certificate shall be taken as prima-facie proof of such service.

(3) The certificate of service provided for in this subsection shall read substantially as follows:

Certificate of Service

I do certify that (copy) (copies) hereof have been furnished to (here insert name or names) by (delivery) (mail) this ____________ day of ____________, ____. ______________ Attorney

(Ga. L. 1981, Ex. Sess., p. 8; Ga. L. 1999, p. 81, § 17.)

- For article surveying criminal law and procedure in 1984-1985, see 37 Mercer L. Rev. 179 (1985). For annual survey of criminal law and procedure, see 40 Mercer L. Rev. 153 (1988).

JUDICIAL DECISIONS

"Similar paper" defined.

- Copies of indictments and appropriate responses to constitutionally and statutorily authorized discovery requests constitute "similar paper" under O.C.G.A. § 17-1-1(a) and, consequently, must be served upon a defendant and not merely furnished to the defendant by notifying the defendant of the presence of the documents in the clerk's office. Driver v. State, 188 Ga. App. 301, 372 S.E.2d 841 (1988).

- There was no authority indicating that untimely filing negated service and notice of the state's witness list in a felony case, especially since service was not disputed. Carter v. State, 253 Ga. App. 795, 560 S.E.2d 697 (2002).

- When it is undisputed that service of notice is properly made by mail in accordance with the statutory provisions, actual notice is not required, and it is immaterial that the notice was not received. Stubbs v. State, 202 Ga. App. 670, 415 S.E.2d 486 (1992).

§ 17-10-2 sent to defense attorney held sufficient. - Trial court did not err in imposing a life sentence against the defendant as: (1) the state satisfied the notice requirement under O.C.G.A. § 17-10-2(a) by providing notice to the defendant's attorney; (2) the appeals court presumed that such information was communicated to the defendant; and (3) the defendant failed to contend otherwise. Blevins v. State, 283 Ga. App. 694, 642 S.E.2d 373 (2007).

- When a pro se defendant filed motions to suppress, those motions which the defendant failed to serve on the state could not be considered, and any order which would have been entered as a result of those motions would have been of no effect. Owens v. State, 258 Ga. App. 647, 575 S.E.2d 14 (2002).

- District attorney's failure to serve arrestee or arrestee's counsel with a copy of a motion and order resulting in the dead-docketing of charges, while not involving the exercise of any prosecutorial discretion or judgment, was intimately associated with the judicial phase of the criminal process, and therefore within the scope of the district attorney's absolute prosecutorial immunity. Holsey v. Hind, 189 Ga. App. 656, 377 S.E.2d 200 (1988).

In a proceeding on an ex parte motion to correct alleged clerical errors in the court's records of defendant's sentence, failure of the defendant to provide the state with notice or the opportunity made the court's order a nullity. Prater v. State, 222 Ga. App. 486, 474 S.E.2d 684 (1996).

Cited in State v. Bostwick, 181 Ga. App. 508, 352 S.E.2d 824 (1987); Devane v. State, 183 Ga. App. 60, 357 S.E.2d 819 (1987); Jones v. State, 185 Ga. App. 649, 366 S.E.2d 144 (1988); Cabell v. State, 250 Ga. App. 530, 551 S.E.2d 386 (2001); Patten v. State, 250 Ga. App. 498, 552 S.E.2d 110 (2001); Collins v. State, 338 Ga. App. 886, 792 S.E.2d 134 (2016); Putnal v. State, 303 Ga. 569, 814 S.E.2d 307 (2018); Schuman v. Dep't of Human Servs., 354 Ga. App. 509, 841 S.E.2d 218 (2020).

RESEARCH REFERENCES

ALR.

- Power of private citizen to institute criminal proceedings without authorization or approval by prosecuting attorney, 90 A.L.R.6th 385.