2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 6 - Bonds and Recognizances
Article 1 - General Provisions
§ 17-6-1. (For Effective Date, See note.) When Offenses Bailable; Procedure; Schedule of Bails; Appeal Bonds

1. 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 in the first degree;
   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;
   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.
2. 1. All offenses not included in subsection (a) of this Code section, inclusive of offenses that are violations of local ordinances, 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. When determining bail for a person charged with a misdemeanor, courts shall not impose excessive bail and shall impose only the conditions reasonably necessary to ensure such person attends court appearances and to protect the safety of any person or the public given the circumstances of the alleged offense and the totality of circumstances.
   2. Except as otherwise provided in this chapter:
      1. A person charged with violating Code Section 40-6-391 whose alcohol concentration at the time of arrest, as determined by any method authorized by law, violates that provided in paragraph (5) of subsection (a) of Code Section 40-6-391 may be detained for a period of time up to six hours after booking and prior to being released on bail or on recognizance; and
      2. When an arrest is made by a law enforcement officer without a warrant upon an act of family violence or a violation of a criminal family violence order pursuant to Code Section 17-4-20, the person charged with the offense shall not be eligible for bail prior to the arresting officer or some other law enforcement officer taking the arrested person before a judicial officer pursuant to Code Section 17-4-21.
   3. 1. Notwithstanding any other provision of law, a judge of a court of inquiry may, as a condition of bail or other pretrial release of a person who is charged with violating Code Section 16-5-90 or 16-5-91, prohibit the defendant from entering or remaining present at the victim's school, place of employment, or other specified places at times when the victim is present or intentionally following such person.
      2. If the evidence shows that the defendant has previously violated the conditions of pretrial release or probation or parole which arose out of a violation of Code Section 16-5-90 or 16-5-91, the judge of a court of inquiry may impose such restrictions on the defendant which may be necessary to deter further stalking of the victim, including but not limited to denying bail or pretrial release.
3. 1. In the event a person is detained in a facility other than a municipal jail for an offense which is bailable only before a judge of the superior court, as provided in subsection (a) of this Code section, and a hearing is held pursuant to Code Section 17-4-26 or 17-4-62, the presiding judicial officer shall notify the superior court in writing within 48 hours that the arrested person is being held without bail.If the detained person has not already petitioned for bail as provided in subsection (d) of this Code section, the superior court shall notify the district attorney and shall set a date for a hearing on the issue of bail within 30 days after receipt of such notice.
   2. In the event a person is detained in a municipal jail for an offense which is bailable only before a judge of the superior court as provided in subsection (a) of this Code section for a period of 30 days, the municipal court shall notify the superior court in writing within 48 hours that the arrested person has been held for such time without bail.If the detained person has not already petitioned for bail as provided in subsection (d) of this Code section, the superior court shall notify the district attorney and set a date for a hearing on the issue of bail within 30 days after receipt of such notice.
   3. Notice sent to the superior court pursuant to paragraph (1) or (2) of this subsection shall include any incident reports and criminal history reports relevant to the detention of such person.
4. A person charged with any offense which is bailable only before a judge of the superior court as provided in subsection (a) of this Code section may petition the superior court requesting that such person be released on bail.The court shall notify the district attorney and set a date for a hearing within ten days after receipt of such petition.
5. 1. A court shall be authorized to release a person on bail if the court finds that 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.
   2. When determining bail, as soon as possible, the court shall consider:
      1. The accused's financial resources and other assets, including whether any such assets are jointly controlled;
      2. The accused's earnings and other income;
      3. The accused's financial obligations, including obligations to dependents;
      4. The purpose of bail; and
      5. Any other factor the court deems appropriate.
   3. If the person is charged with a serious violent felony and has already been convicted of a serious violent felony, or of an offense under the laws of any other state or of the United States which offense if committed in this state would be a serious violent felony, there shall be a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the person as required or assure the safety of any other person or the community. As used in this subsection, the term "serious violent felony" means a serious violent felony as defined in Code Section 17-10-6.1.
   4. (For effective date, see note.) Any bond issued by an elected judge or judge sitting by designation that purports a dollar amount shall be executed in the full-face amount of such bond through secured means as provided for in Code Section 17-6-4 or 17-6-50 or shall be executed by use of property as approved by the sheriff in the county where the offense was committed.
   5. (For effective date, see note.) Notwithstanding any other provision of law, nothing in this Code section shall prohibit a duly sworn sheriff from releasing an inmate from custody in cases of medical emergency with the consent of the judge in the county in which he or she presides.
6. 1. Except as provided in subsection (a) of this Code section or as otherwise provided in this subsection, the judge of any court of inquiry may by written order establish a schedule of bails and unless otherwise ordered by the judge of any court, an accused shall be released from custody upon posting bail as fixed in the schedule.
   2. For offenses involving an act of family violence, as defined in Code Section 19-13-1, bail or other release from custody shall be set by a judge on an individual basis and a schedule of bails provided for in paragraph (1) of this subsection shall not be utilized; provided, however, that the judge shall include a listing of specific conditions which shall include, but not be limited to, having no contact of any kind or character with the victim or any member of the victim's family or household, not physically abusing or threatening to physically abuse the victim, the immediate enrollment in and participation in domestic violence counseling, substance abuse therapy, or other therapeutic requirements.
   3. For offenses involving an act of family violence, the judge shall determine whether one or more specific conditions shall be used, except that any offense involving an act of family violence and serious injury to the victim shall be bailable only before a judge when the judge or the arresting officer is of the opinion that the danger of further violence to or harassment or intimidation of the victim is such as to make it desirable that the consideration of the imposition of additional conditions as authorized in this Code section should be made. Upon setting bail in any case involving family violence, the judge shall give particular consideration to the exigencies of the case at hand and shall impose any specific conditions as he or she may deem necessary. As used in this Code section, the term "serious injury" means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, substantial bruises to body parts, fractured bones, or permanent disfigurements and wounds inflicted by deadly weapons or any other objects which, when used offensively against a person, are capable of causing serious bodily injury.
   4. For violations of Code Section 16-15-4, the court shall require increased bail and shall include as a condition of bail or pretrial release that the accused shall not have contact of any kind or character with any other member or associate of a criminal street gang and, in cases involving an alleged victim, that the accused shall not have contact of any kind or character with any such victim or any member of any such victim's family or household.
   5. For offenses involving violations of Code Section 40-6-393, bail or other release from custody shall be set by a judge on an individual basis and not a schedule of bails pursuant to this Code section.
7. No appeal bond shall be granted to any person who has been convicted of murder, rape, aggravated sodomy, armed robbery, home invasion in any degree, aggravated child molestation, child molestation, kidnapping, trafficking in cocaine or marijuana, aggravated stalking, or aircraft hijacking and who has been sentenced to serve a period of incarceration of five years or more. 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. Appeal bonds shall terminate when the right of appeal terminates, and such bonds shall not be effective as to any petition or application for writ of certiorari unless the court in which the petition or application is filed so specifies.
8. Except in cases in which life imprisonment or the death penalty may be imposed, a judge of the superior court by written order may delegate the authority provided for in this Code section to any judge of any court of inquiry within such superior court judge's circuit.However, such authority may not be exercised outside the county in which said judge of the court of inquiry was appointed or elected.The written order delegating such authority shall be valid for a period of one year, but may be revoked by the superior court judge issuing such order at any time prior to the end of that one-year period.
9. (For effective date, see note.) As used in this Code section, the term "bail" shall include the release of a person on an unsecured judicial release, except as limited by Code Section 17-6-12.
10. For all persons who have been authorized by law or the court to be released on bail, sheriffs and constables shall accept such bail; provided, however, that the sureties tendered and offered on the bond are approved by the sheriff of the county in which the offense was committed.

(Orig. Code 1863, § 4625; Code 1868, § 4649; Code 1873, § 4747; Code 1882, § 4747; Penal Code 1895, § 933; Penal Code 1910, § 958; Ga. L. 1922, p. 51, § 1; Code 1933, § 27-901; Ga. L. 1973, p. 454, § 1; Ga. L. 1980, p. 1359, § 1; Ga. L. 1982, p. 910, § 1; Ga. L. 1983, p. 3, § 14; Ga. L. 1983, p. 358, § 1; Ga. L. 1983, p. 452, § 1; Ga. L. 1984, p. 22, § 17; Ga. L. 1984, p. 679, § 1; Ga. L. 1984, p. 760, § 1; Ga. L. 1985, p. 416, § 1; Ga. L. 1986, p. 166, §§ 1, 2; Ga. L. 1988, p. 358, § 1; Ga. L. 1989, p. 1714, § 1; Ga. L. 1990, p. 8, § 17; Ga. L. 1991, p. 416, § 1; Ga. L. 1991, p. 1401, § 1; Ga. L. 1992, p. 1150, § 1; Ga. L. 1992, p. 2527, § 1; Ga. L. 1993, p. 91, § 17; Ga. L. 1993, p. 1534, § 2; Ga. L. 1994, p. 532, § 1; Ga. L. 1994, p. 1270, § .5; Ga. L. 1994, p. 1625, § 5; Ga. L. 1995, p. 379, §§ 1, 2; Ga. L. 1995, p. 989, §§ 1, 2; Ga. L. 1996, p. 1233, § 1; Ga. L. 1996, p. 1624, § 1; Ga. L. 1997, p. 143, § 17; Ga. L. 1998, p. 270, § 9; Ga. L. 1999, p. 391, § 3; Ga. L. 2000, p. 1171, § 1; Ga. L. 2006, p. 379, § 18/HB 1059; Ga. L. 2008, p. 817, § 1/HB 960; Ga. L. 2010, p. 226, § 1/HB 889; Ga. L. 2010, p. 230, §§ 8, 9/HB 1015; Ga. L. 2012, p. 899, § 8-8/HB 1176; Ga. L. 2013, p. 667, § 3/SB 86; Ga. L. 2014, p. 426, § 9/HB 770; Ga. L. 2017, p. 417, § 2-1/SB 104; Ga. L. 2018, p. 550, § 2-4/SB 407; Ga. L. 2020, p. 570, § 2-1/SB 402.)

- Bail in magistrate court criminal cases, Uniform Rules for the Magistrate Courts, Rule 23.

- Pursuant to Code Section 28-9-5, in 1991, "six" was substituted for "6" in paragraph (2) of subsection (b) (now subparagraph (b)(2)(A)).

Pursuant to Code Section 28-9-5, in 1995, paragraph (11) of subsection (a), as enacted by Ga. L. 1995, p. 989, § 1, was redesignated as paragraph (12) of subsection (a), owing to the use of a duplicate paragraph designation by Ga. L. 1995, p. 379, § 1.

Pursuant to Code Section 28-9-5, in 2010, "Chapter 15 of Title 16" was substituted for "the 'Georgia Street Gang Terrorism and Prevention Act'" in paragraph (a)(13).

- Ga. L. 1986, p. 166, § 3, not codified by the General Assembly, provided that that Act would become effective July 1, 1986, and would apply to prosecutions commenced on or after that date.

Ga. L. 1994, p. 1625, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Anti-motor Vehicle Hijacking Act of 1994'".

Ga. L. 1995, p. 379, § 3, not codified by the General Assembly, provides that the amendment by that Act shall apply to all bail hearings held on or after July 1, 1995, without regard to whether the offense was committed prior to, on, or after July 1, 1995, and without regard to whether an underlying prior conviction occurred prior to, on, or after July 1, 1995.

Ga. L. 1995, p. 989, § 3, not codified by the General Assembly, provides that the amendment by that act shall apply to acts committed on or after July 1, 1995.

Ga. L. 1999, p. 391, §§ 1 and 2, not codified by the General Assembly, provides in part that the memory of all victims of drunken driving and Heidi Marie Flye, Cathryn Nicole Flye, and Audrey Marie Flye should be honored and that this Act shall be known and may be cited as "Heidi's Law".

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

- For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For review of 1998 legislation relating to crimes and offenses, see 15 Ga. St. U.L. Rev. 80 (1998). For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 61 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 45 (2018). For note, "Bail in Georgia: Elimination of 'Double Bonding' - A Partially Solved Problem," see 8 Ga. St. B.J. 220 (1971). For note, "The Effect of Salerno v. United States on the Use of State Preventive Detention Legislation: A New Definition of Due Process," see 22 Ga. L. Rev. 805 (1988). For note on 1989 amendment to this Code section, see 6 Ga. St. U.L. Rev. 216 (1989). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 43 (1992). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 129 (1992). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 95 (1993). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 99 (1994). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 129 (1994). For note on the 1995 amendment of this Code section, see 12 Ga. St. U.L. Rev. 141 (1995). For note on 1999 amendment to this Code section, see 16 Ga. St. U.L. Rev. 200 (1999). For note, "Give It to Me, I'm Worth It: The Need to Amend Georgia's Record Restriction Statute to Provide Ex-Offenders with a Second Chance in the Employment Sector," see 52 Ga. L. Rev. 267 (2017). For note, "Bailing on Bail: The Unconstitutionality of Fixed, Monetary Bail Systems and Their Continued Use Throughout the United States," see 52 Ga. L. Rev. 985 (2018). For note, "A 'Critical' Question of State Law: Georgia's Ambiguous Treatment of Initial Appearance Hearings and the Implications of Bail Reform," see 54 Ga. L. Rev. 363 (2019). For comment on Ingram v. Grimes, 213 Ga. 652, 100 S.E.2d 914 (1957), holding that the granting of bail after conviction rests on the discretion of the trial court even when a motion for new trial is pending, see 21 Ga. B.J. 235 (1958).

ANALYSIS

• General Consideration
• Discretion of Court
• Practice and Procedure

For history of section, see Newsome v. Scott, 151 Ga. 639, 107 S.E. 854 (1921).

- Provision in O.C.G.A. § 17-6-1(g) (former subsection (d)) denying appeal bonds to persons convicted of "murder, rape . . . and who have been sentenced to serve a period of seven years or more" does not violate either the due process or equal protection clause. Hall v. State, 254 Ga. 507, 330 S.E.2d 878 (1985).

O.C.G.A. § 17-6-1(g)'s (former subsection (d)) classification of persons ineligible for appeal bonds is rationally related to at least two legitimate state interests. First, it is rationally related to the promotion of public confidence in the judicial system by prohibiting persons given longer sentences for serious crimes from returning to the community pending appeal. Similarly, in providing that persons convicted of serious crimes who receive longer sentences are not entitled to an appeal bond, it is rationally related to the legitimate objective of assuring that such persons will not flee pending the outcome of their appeal. Browning v. State, 254 Ga. 478, 330 S.E.2d 879 (1985); Moran v. State, 268 Ga. 817, 493 S.E.2d 126 (1997).

- O.C.G.A. § 17-6-1, as amended, is applicable to capital "offenses," not convictions. Hardin v. State, 251 Ga. 533, 307 S.E.2d 669 (1983).

Former Code 1933, § 27-901 (see O.C.G.A. § 17-6-1) was applicable to the first 90 days of confinement, and Ga. L. 1973, p. 291, § 1 (see O.C.G.A. § 17-7-50) was applicable to all crimes after 90 days of confinement. After 90 days without bail and without indictment, the mandate of the preceding section was that bail must be set by the trial judge. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).

- Sole duty of the court hearing an application for bail is to determine whether or not the accused should be entitled to bail and, if so, the amount. At such hearing the court does not pass on the merits of the case and there is no determination of guilt or innocence, or even probable cause. Craft v. State, 154 Ga. App. 682, 269 S.E.2d 490 (1980).

- Many factors are to be considered in fixing bail, some of which are the ability of the defendant to give bail, the seriousness of the offense, penalty, character, and reputation of the accused, health, probability of the defendant appearing to serve sentence, forfeiture of other bonds, and whether a fugitive. Jones v. Grimes, 219 Ga. 585, 134 S.E.2d 790 (1964).

Considerations to be employed by the superior court in granting or denying pre-trial bonds are the same as the considerations to be employed in granting or denying appeal bonds. Hardy v. State, 192 Ga. App. 860, 386 S.E.2d 731 (1989).

- In setting the amount of bail, the principal factor considered, to the determination of which most other factors are directed, is the probability of the appearance of the accused, or of the accused's flight to avoid punishment. Jones v. Grimes, 219 Ga. 585, 134 S.E.2d 790 (1964); Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970).

When fixing the amount of bail, the judge is to consider chiefly the probability that the accused, if freed, will appear at trial; other factors to be considered include the accused's ability to pay, the seriousness of the offense, and the accused's character and reputation. Spence v. State, 252 Ga. 338, 313 S.E.2d 475 (1984); Howard v. State, 197 Ga. App. 693, 399 S.E.2d 283 (1990).

Trial court erred in admitting, at trial, a pretrial statement made by the defendant's parent to an investigator as the defendant was not afforded a meaningful opportunity to cross-examine the parent regarding the statement during a bond hearing, and the reasonable doubt standard and the significant risk standard could not be equated, given that determining whether a specific crime was committed reached different issues than determining the possibility of future bad conduct by the defendant. Dickson v. State, 281 Ga. App. 539, 636 S.E.2d 721 (2006).

- In passing on an application for bond, the question before the judge is whether the appearance of the accused for trial may be reasonably assured. Craft v. State, 154 Ga. App. 682, 269 S.E.2d 490 (1980).

- Grant or refusal of bail in felony cases pending appeal lies within the sound discretion of the trial court. Release should not be granted unless, after hearing, the court affirmatively determines that there is no substantial risk of the defendant absconding, that the defendant is unlikely to commit a serious crime or intimidate witnesses, and that the appeal is not frivolous and not taken for delay. Sapp v. State, 147 Ga. App. 690, 250 S.E.2d 23 (1978).

- Arresting officer has no authority to accept bond from one arrested under warrant for felony, but should return the party arrested to the county in which the crime was alleged to have been committed, for examination before a judicial officer of that county and the fixing of bail by such officer in case of commitment. Paulk v. Sexton, 203 Ga. 82, 45 S.E.2d 768 (1947).

- Defendant is not a person "charged with a misdemeanor" after conviction and a review of the judgment of conviction by every court of the land to which the defendant could apply, which judgment of conviction has become final. Hodges v. Balkcom, 209 Ga. 856, 76 S.E.2d 798 (1953).

- When one has been convicted of a misdemeanor and there was no motion for new trial pending, former Code 1933, § 27-901 (see O.C.G.A. § 17-6-1) had no application. Johnson v. Aldredge, 192 Ga. 209, 14 S.E.2d 757 (1941).

Only persons convicted in misdemeanor cases are entitled to bail as a matter of law. Sellers v. State, 112 Ga. App. 607, 145 S.E.2d 827 (1965).

Trial court has authority to place conditions on bail in misdemeanor cases. Clarke v. State, 228 Ga. App. 219, 491 S.E.2d 450 (1997).

- Defendants, who are confined upon revocation of probationary sentences and who seek review by certiorari of order of revocation are not entitled to be released on bond, since the defendants are not seeking to review a "judgment of conviction" within the provisions of former Code 1933. Foster v. Jenkins, 210 Ga. 383, 80 S.E.2d 277 (1954).

Excessive bail is the equivalent of a refusal to grant bail, and in such cases habeas corpus is an available and appropriate remedy for relief. Jones v. Grimes, 219 Ga. 585, 134 S.E.2d 790 (1964).

- For offenses involving an act of family violence, O.C.G.A. § 17-6-1(f)(2) expressly authorized the trial court to impose special bond conditions that the accused have no contact of any kind or character with the victim; moreover, even without this express statutory authorization, the trial court had the inherent authority to impose such conditions when the defendant was charged with a violent crime against a specific victim. Patel v. State, 283 Ga. App. 181, 641 S.E.2d 184 (2006).

- Absent objections grounded on the Fifth Amendment at the bail hearing, the decision of defense counsel to bring the extraneous issue of guilt or innocence into the bail proceeding did not preclude, on Fifth Amendment grounds, the use at trial of incriminating testimony given at such hearing. Cowards v. State, 266 Ga. 191, 465 S.E.2d 677 (1996).

- State did not violate O.C.G.A. § 17-6-1(d), despite the defendants' contrary claim, as the superior court was not required to act on a bail motion within ten days of receiving a petition for release, nor did the statute provide for a release if such action was not undertaken. Capestany v. State, 289 Ga. App. 47, 656 S.E.2d 196 (2007).

Cited in Vanderford v. Brand, 126 Ga. 67, 54 S.E. 822, 9 Ann. Cas. 617, aff'd, 126 Ga. 753, 55 S.E. 1025 (1906); Padgett v. Grimes, 198 Ga. 566, 32 S.E.2d 302 (1944); Washburn v. Foster, 87 Ga. App. 132, 73 S.E.2d 240 (1952); Pennaman v. Walton, 220 Ga. 295, 138 S.E.2d 571 (1964); Watts v. Grimes, 224 Ga. 227, 161 S.E.2d 286 (1968); Boatner v. State, 122 Ga. App. 736, 178 S.E.2d 699 (1970); Holland v. State, 127 Ga. App. 145, 193 S.E.2d 56 (1972); Fowler v. State, 229 Ga. 884, 194 S.E.2d 923 (1972); Holcomb v. State, 129 Ga. App. 86, 198 S.E.2d 876 (1973); Gill v. Decatur County, 129 Ga. App. 697, 201 S.E.2d 21 (1973); Goodman v. Ault, 358 F. Supp. 743 (N.D. Ga. 1973); Beavers v. State, 132 Ga. App. 94, 207 S.E.2d 550 (1974); Harris v. Hopper, 236 Ga. 389, 224 S.E.2d 1 (1976); Mooney v. State, 146 Ga. App. 390, 246 S.E.2d 328 (1978); Smith v. State, 245 Ga. 168, 263 S.E.2d 910 (1980); Foster v. State, 165 Ga. App. 137, 299 S.E.2d 420 (1983); Gamble v. State, 181 Ga. App. 871, 354 S.E.2d 174 (1987); Lathan v. State, 188 Ga. App. 439, 373 S.E.2d 388 (1988); Ragin v. State, 188 Ga. App. 701, 373 S.E.2d 856 (1988); Smith v. State, 189 Ga. App. 27, 375 S.E.2d 69 (1988); Isaacs v. State, 259 Ga. 717, 386 S.E.2d 316 (1989); Howard v. State, 200 Ga. App. 188, 407 S.E.2d 769 (1991), cert. denied, 1991 Ga. LEXIS 542 (Ga. 1991), subsequent appeal, 210 Ga. App. 716, 437 S.E.2d 483 (1993), habeas corpus denied, 266 Ga. 771, 470 S.E.2d 678 (1996), recons. denied; overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019); Campbell v. State, 206 Ga. App. 456, 426 S.E.2d 45 (1992); Kelly v. Curtis, 21 F.3d 1544 (11th Cir. 1994); Wade v. State, 218 Ga. App. 377, 461 S.E.2d 314 (1995); Washington v. Jefferson County, 221 Ga. App. 81, 470 S.E.2d 714 (1996); Brooks v. State, 232 Ga. App. 115, 501 S.E.2d 286 (1998); In the Interest of E.J., 283 Ga. App. 648, 642 S.E.2d 179 (2007); Gordy v. State, 287 Ga. App. 459, 651 S.E.2d 471 (2007); Ellis v. State, 289 Ga. App. 452, 657 S.E.2d 562 (2008); Jones v. State, 320 Ga. App. 26, 739 S.E.2d 43 (2013); Lane v. State, 324 Ga. App. 303, 750 S.E.2d 381 (2013);.

Discretion of Court

Discretion as to amount of bail.

- Amount of bail to be assessed in each criminal case is left to the sound discretion of the trial judge and in the absence of clear abuse of such discretionary power, the judge's action will not be controlled. Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970).

Granting or refusal of bail in capital cases is a matter peculiarly within the discretion of the judge of the superior court, and will not be controlled, unless it has been manifestly and flagrantly abused. To assist an appellate court in determining whether there has been an abuse of discretion, the trial court must make an affirmative finding that the defendant is likely to commit a serious crime, intimidate witnesses, or will flee if released. Merritt v. State, 169 Ga. App. 523, 313 S.E.2d 780 (1984).

Trial court did not abuse the court's discretion in denying the defendant's motion for pretrial bond after stating in the court's written order that the defendant posed a significant risk of committing further felonies pending trial of this matter and poses a significant risk to persons in the community, including the defendant personally. Prigmore v. State, 327 Ga. App. 368, 759 S.E.2d 249 (2014).

On remand, the habeas court was directed to hold a hearing on the petitioner's habeas petition because the record showed that the petitioner exhausted efforts to seek an interlocutory review of the trial court's order denying bond and the petitioner had no other adequate remedy for meaningful review of the lawfulness of continued detention. Tumlinson v. Dix, Ga. , 844 S.E.2d 765 (2020).

- Under the 1996 amendment to O.C.G.A. § 17-6-1, the trial court is required to exercise discretion in determining whether to grant an appeal bond, and the court must hold an evidentiary hearing at which the court may consider evidence presented during the trial as well as additional oral or documentary evidence. Knapp v. State, 223 Ga. App. 267, 477 S.E.2d 621 (1996).

Despite the fact that the defendant was not convicted of the listed felonies outlined in O.C.G.A. § 17-6-1(g), the trial court did not abuse the court's discretion in denying the defendant an appeal bond as the defendant was found guilty of two violent sex crimes, had a prior aggravated assault conviction, and the likelihood of a successful appeal was minimal. Luke v. State, 282 Ga. App. 749, 639 S.E.2d 645 (2006).

Georgia Supreme Court recognizes that the Georgia General Assembly has chosen to treat murder cases differently in O.C.G.A. § 5-7-5, and trial courts must be allowed some level of discretion to deny requests for bail pending appeals by the state in such cases; that discretion of trial courts in these cases should be governed by the standards for deciding whether to grant pretrial bail. Johnson v. State, 304 Ga. 369, 818 S.E.2d 601 (2018).

Trial court did not abuse the court's discretion by denying the defendant's motion for appeal bond because the defendant's case was currently at an appellate stage until the Georgia Supreme Court considered the state's appeal; thus, it was appropriate for the trial court to have evaluated the defendant's request for an appeal bond by the standards for pretrial bail in O.C.G.A. § 17-6-1(e). Johnson v. State, 304 Ga. 369, 818 S.E.2d 601 (2018).

- After conviction, the decision of whether or not to grant bail in a noncapital felony rests in the sound discretion of the trial court, and should that court determine that bail should not be granted, the offense, as to that defendant, is nonbailable. Finley v. Thompson, 100 Ga. App. 508, 112 S.E.2d 166 (1959).

- Granting or refusing of bail in felony cases after indictment and conviction is a matter within the sound discretion of the court below, and the Supreme Court will not control that discretion unless that discretion has been flagrantly abused. Smith v. State, 203 Ga. 636, 47 S.E.2d 866 (1948).

Granting or refusing of bail in felony cases after indictment and conviction is a matter within the sound discretion of the trial court, and the appellate court will not control that discretion unless that discretion has been flagrantly abused. Hardwick v. State, 131 Ga. App. 721, 206 S.E.2d 727 (1974).

If there is some evidence to support at least part of the underlying basis for the trial court's conclusion, there is no flagrant abuse of the trial court's discretion in denying bail. Parrish v. State, 182 Ga. App. 247, 355 S.E.2d 682 (1987).

- Since the General Assembly has placed the noncapital offense of sale of narcotics as well as perjury into the same category as the capital offenses of rape, armed robbery, aircraft hijacking, treason, and murder insofar as bail is concerned, the old rule applied in capital cases, the granting or refusal of bail in capital cases is a matter peculiarly within the discretion of the judge of the superior court, and will not be controlled, unless that discretion has been manifestly and flagrantly abused, must be applied to narcotics and perjury cases. Reed v. State, 134 Ga. App. 47, 213 S.E.2d 147 (1975).

- Trial court did not abuse the court's discretion in denying a motion for bail by the defendant charged with aggravated assault, since the defendant had no significant ties to the community, had previously failed to appear when ordered, and had to be extradited from California after the defendant's last failure to appear in court. Stirling v. State, 189 Ga. App. 283, 375 S.E.2d 302 (1988), aff'd, 192 Ga. App. 39, 383 S.E.2d 595 (1989).

Trial court did not abuse the court's discretion in denying an appeal bond based on evidence that the defendant showed a violent character which, coupled with the defendant's violent temper, lack of remorse, and belief that the defendant had committed no wrong in shooting a fleeing teenager who appeared to be stealing defendant's truck, indicated that the defendant would be a danger to others. Prayor v. State, 214 Ga. App. 132, 447 S.E.2d 155 (1994).

Evidence of the guilt or innocence of the person detained does not figure prominently in the judge's determination over whether to deny bail and therefore the delay in receiving an exculpatory statement of a witness did not infringe upon the defendant's constitutional rights when the justice denied bail. Rock v. Lowe, 893 F. Supp. 1573 (S.D. Ga. 1995), aff'd without op., 79 F.3d 1161 (11th Cir. 1996).

Trial court did not err in denying the defendant's motions for bond because, as to the defendant's initial request for bond, the defendant had a bond hearing in another case denied and the defendant did not state any additional facts that were not presented at the first hearing; as to the two subsequent motions for bond, the trial court held that the court could not make a finding that the defendant posed no significant risk of intimidating witnesses or otherwise obstructing the administration of justice; and, as to the additional motions for bond, the defendant presented no new information, testimony, or evidence that indicated a change in circumstances. Wimbush v. State, 345 Ga. App. 54, 812 S.E.2d 489 (2018).

- If the defendant was charged with battery against a specific female victim, it was not an abuse of discretion for the court to forbid the defendant to threaten, harass, stalk, or abuse the victim as conditions of bail. Clarke v. State, 228 Ga. App. 219, 491 S.E.2d 450 (1997).

- Trial court abused the court's discretion in setting conditions of a bond that were totally unrelated to the defendant's offense and were, therefore, unreasonable as a matter of law. Dudley v. State, 230 Ga. App. 339, 496 S.E.2d 341 (1998).

Denial of a supersedeas bond following defendant's conviction of child molestation was not an abuse of discretion since there was evidence that during the time the case was pending trial, the defendant and the defendant's spouse would drive by the victim's house and "make faces at the children" playing in the yard and that the people involved lived fairly closely together. Ferry v. State, 210 Ga. App. 321, 436 S.E.2d 59 (1993).

Murder is bailable only within sound discretion of trial judge. Myron v. State, 248 Ga. 120, 281 S.E.2d 600 (1981), cert. denied, 454 U.S. 1154, 102 S. Ct. 1025, 71 L. Ed. 2d 310 (1982).

- Petitioner charged with 16 counts of violating the Georgia RICO Act, O.C.G.A. § 16-14-1, securities fraud, and theft, who owned no assets in the United States and had allegedly funneled significant assets to Belize, where petitioner traveled frequently, was not entitled to bail as of right under O.C.G.A. § 17-6-1(a), Ga. Const. 1983, Art. I, Sec. I, Para. XVII, or U.S. Const., amend. VIII. Constantino v. Warren, 285 Ga. 851, 684 S.E.2d 601 (2009).

Practice and Procedure

Bail refused because of prior conviction.

- Fact that the magistrate could not grant bail to the defendant, who had a prior conviction for burglary, was a result of the defendant's prior conviction and was not due to a "statutorily" deficient hearing. Burson v. State, 183 Ga. App. 647, 359 S.E.2d 731, cert. denied, 183 Ga. App. 905, 359 S.E.2d 731 (1987).

- Upon learning that the arrestee wanted to post bail and had the money to do so, a sheriff's sergeant was told by a sheriff's captain that because the arrestee was arrested by the City of Midville, the arrestee had to pay the fine at Midville. Although the sergeant made several calls to the City of Midville in an unsuccessful attempt to inform Midville that the arrestee had enough money to post bail, Burke County refused to accept the money, and this refusal amounted to a constitutional violation. Bunyon v. Burke County, 306 F. Supp. 2d 1240 (S.D. Ga. 2004).

Failure of the magistrate to initially set a bond did not require that the indictment against the defendant be quashed since when the error was brought to the magistrate's attention by the defendant's parole officer the magistrate immediately held a hearing and set bail. Nixon v. State, 256 Ga. 261, 347 S.E.2d 592 (1986).

- Consent for a urine test was not voluntary since the consent was premised on incomplete and thus deceptively misleading information received from a police officer that the test results would be used only "for determination of bond." Had the defendant been cautioned that the results of the search and seizure of the defendant's urine would be used to supply evidence against the defendant in an independent criminal prosecution, no consent might have been given. Beasley v. State, 204 Ga. App. 214, 419 S.E.2d 92 (1992).

- Defendant did not suffer multiple criminal punishment on account of the harassing phone call charge, under O.C.G.A. § 16-11-39.1(a), and the trial court did not err by refusing to bar the prosecution on grounds of double jeopardy as the defendant's bond conditions did not constitute criminal punishment; given the nature of the underlying charge and the abusive content of the letter defendant sent to the victim's workplace, the bond conditions were intended to further the interests of public safety, under O.C.G.A. § 17-6-1(e), and not to act as a punishment for the harassing phone call charge and, even if the defendant was not validly incarcerated for violating the bond, the defendant was not incarcerated in order to punish the defendant for the harassing phone calls charge. Bozzuto v. State, 276 Ga. App. 614, 624 S.E.2d 166 (2005); Edvalson v. State, 339 Ga. App. 348, 793 S.E.2d 545 (2016).

Conducting a hearing to modify the bond conditions of a third-time DUI offender and placing limitations upon the offender's driving privileges, predicated upon the necessity to protect the welfare and safety of the citizens of Georgia from a recidivist offender, was not punishment, nor was the hearing prosecution, for the purposes of double jeopardy. Strickland v. State, 300 Ga. App. 898, 686 S.E.2d 486 (2009).

Considering the nature of the defendant's arrest and charges, the amount and conditions of the defendant's bond, which included home confinement, drug and alcohol evaluation and counseling, installation of an ignition interlock device on the defendant's vehicle, and a SCRAM bracelet, were not punishment for purposes of double jeopardy; instead, the conditions were rationally related to an alternative purpose as the conditions were designed to prevent the defendant from being a danger to the community by committing future acts of driving under the influence while awaiting trial and to assure defendant's presence at court proceedings. Alden v. State, 314 Ga. App. 439, 724 S.E.2d 451 (2012), cert. denied, No. S12C1277, 2012 Ga. LEXIS 1011 (Ga. 2012). See also Edvalson v. State, 339 Ga. App. 348, 793 S.E.2d 545 (2016).

- Denial of a motion for pretrial bail is an interlocutory matter requiring a defendant to follow the interlocutory procedure set forth in O.C.G.A. § 5-6-34(b). Howard v. State, 194 Ga. App. 857, 392 S.E.2d 562 (1990).

Only appealable issue from the denial of bail is the abuse vel non of the trial judge's discretion. Fields v. Tankersley, 487 F. Supp. 1389 (S.D. Ga. 1980).

- If the record discloses that appellant has been tried, adjudicated a delinquent, sentenced, and detained because of that conviction, any possible error in denial of bail as ground for reversal has been removed. R.T.M. v. State, 138 Ga. App. 92, 225 S.E.2d 510 (1976).

- Bond for a person charged with stalking lies within the discretion of the trial judge; however, because a bond revocation involves the deprivation of one's liberty the decision must comport with at least minimal state and federal due process requirements. Hood v. Carsten, 267 Ga. 579, 481 S.E.2d 525 (1997).

- Granting of an appeal bond to a defendant convicted of statutory rape is discretionary with the convicting court. Grayer v. State, 176 Ga. App. 248, 335 S.E.2d 483 (1985).

- Burden of seeking a stay of execution and a release on bond is upon the appellant. Shaw v. State, 178 Ga. App. 67, 341 S.E.2d 919 (1986).

Trial court should not grant bond pending appeal unless the appellant presents sufficient information, evidence, or argument to convince the court that there is no substantial risk appellant will not appear to answer judgment, is not likely to commit a serious crime, intimidate witnesses, or otherwise interfere with the administration of justice, and that the appeal is not frivolous or taken for the purpose of delay. If the appellant does not carry this burden of convincing the court to reach a negative answer to all of these criteria, release should not be granted. Shaw v. State, 178 Ga. App. 67, 341 S.E.2d 919 (1986).

- Habeas corpus plaintiff, protesting conditions of plaintiff's detention for a state criminal violation, had to look to state law for any rights plaintiff might have regarding bond. Datz v. Hutson, 806 F. Supp. 982 (N.D. Ga. 1992), aff'd, 14 F.3d 58 (11th Cir. 1994).

- Defendant has the burden of producing evidence on community ties, but the state has the burden of persuading by a preponderance of the evidence that a defendant is not entitled to release on bail. Ayala v. State, 262 Ga. 704, 425 S.E.2d 282 (1993).

- Defendant's case was remanded to allow the trial court to revisit the defendant's bond application as the defendant's ineffective assistance of counsel claims had not been finally resolved and had been remanded, and as the questions surrounding the bond application were not moot; if the trial court denied the bond application, it was directed to specify the basis for the application's denial. Carter v. State, 267 Ga. App. 520, 600 S.E.2d 637 (2004).

- Superior court judge had the authority to reconsider and revoke a pretrial bond that was set by another judge who was presiding in the judge's place by designation; the designated judge should not have granted the bond to the defendant after expressly finding that the defendant was likely to intimidate witnesses or otherwise interfere with the administration of justice. Rooney v. State, 217 Ga. App. 850, 459 S.E.2d 601 (1995).

- O.C.G.A. § 17-6-1(g), precluding a trial court from granting an appeal bond to the defendant, who had been convicted of child molestation and aggravated child molestation, did not violate the separation of powers provision of Ga. Const. 1983, Art. I, Sec. II, Para. III because there was no constitutional right to an appeal bond, so the system under which prisoners were allowed to be released on bond pending an appeal was a legislative function, and the legislature's establishment of the parameters of such bonds did not invade the province of the judiciary. Getkate v. State, 278 Ga. 585, 604 S.E.2d 838 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Approval of sureties.

- Former Code 1933, §§ 27-901, 27-902, 27-801 (see O.C.G.A. §§ 17-6-1,17-6-2 and17-7-90) provide for the approval of sureties by sheriffs or judicial officers. Qualifications, such as solvency and reliability, may be inquired into before approval. 1970 Op. Att'y Gen. No. U70-83.

Responsibility for approving or rejecting the surety on a criminal bail bond in a felony offense remains in the court having jurisdiction over the offense but, since it is a ministerial function, it may be delegated to a nonjudicial officer such as a sheriff. The authority to approve or reject the surety in misdemeanor cases is given by statute to the sheriff. 1976 Op. Att'y Gen. No. U76-39.

- When a sheriff is authorized to accept bail and when the sureties have been approved by the sheriff of any county of this state, the detaining sheriff must accept bail in reasonable amounts without regard to the residence of the approved sureties. 1970 Op. Att'y Gen. No. U70-168.

- Justice of the peace may use discretion in accepting real estate which is not completely paid for as an appearance bond in a criminal proceeding. 1969 Op. Att'y Gen. No. 69-180.

- Arbitrary period of detention or until the accused has sobered is unlawful, unless the defendant is unable or unwilling to post bond, and if there is no responsible person available to take custody of the defendant. Therefore, an intoxicated person is entitled to be released into the custody of a responsible person as soon as bail is allowable and paid. If a police officer is acting reasonably, in good faith, and within the procedures prescribed by law, the officer cannot be held liable for any subsequent acts of the accused once the person is released from custody. 1967 Op. Att'y Gen. No. 67-214.

Prosecuting one for possessing one ounce or less of marijuana in a superior court makes the crime a felony punishable as a misdemeanor and would not invoke former Code 1933, § 27-901 (see O.C.G.A. § 17-6-1). 1974 Op. Att'y Gen. No. U74-79.

- Assuming that release of one accused of escape does not interrupt the service of an existing sentence, the accused is entitled to be released on bail if the offense is a misdemeanor and, if a felony, the accused is entitled to bail either before or after indictment. 1970 Op. Att'y Gen. No. U70-136.

- Because a probate court may hold a court of inquiry pursuant to O.C.G.A. § 17-7-20, it may also set bail for any criminal offense not included in O.C.G.A. § 17-6-1(a). 1995 Op. Att'y Gen. No. U95-1.

4 Am. Jur. Pleading and Practice Forms, Bail and Recognizance, § 2 et seq.

- 8A Am. Jur. 2d, Bail and Recognizance, § 1 et seq.

- Abolition of death penalty as affecting right to bail of one charged with murder in first degree, 8 A.L.R. 1352.

Power to admit to bail in deportation case, 36 A.L.R. 887.

Amount of bail required in criminal action, 53 A.L.R. 399.

Factors in fixing amount of bail in criminal cases, 72 A.L.R. 801.

Mandamus to compel judge or other officer to grant accused bail or to accept proffered sureties, 23 A.L.R.2d 803.

Court's power and duty, pending determination of habeas corpus proceeding on merits, to admit petitioner to bail, 56 A.L.R.2d 668.

Upon whom rests burden of proof, where bail is sought before judgment but after indictment in capital case, as to whether proof is evident or the presumption is great, 89 A.L.R.2d 355.

Effect of abolition of capital punishment on procedural rules governing crimes punishable by death - post-Furman decisions, 71 A.L.R.3d 453.

Pretrial preventive detention by state court, 75 A.L.R.3d 956.