2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 2 - Commitment Hearings
§ 17-7-20. Persons Who May Hold Courts of Inquiry; Procedure Where Offense Committed in County Which Is Member of Regional Jail Authority

Any judge of a superior or state court, judge of the probate court, magistrate, or officer of a municipality who has the criminal jurisdiction of a magistrate may hold a court of inquiry to examine into an accusation against a person legally arrested and brought before him or her. The time and place of the inquiry shall be determined by such judicial officer. Should the county in which the offense is alleged to have been committed be a member of a regional jail authority created under Article 5 of Chapter 4 of Title 42, the "Regional Jail Authorities Act," the judge may order the court of inquiry to be conducted alternatively in the county in which the offense is alleged to have been committed or in facilities available at the regional jail or by audio-visual communication between the two locations and between the accused, the court, the attorneys, and the witnesses.

(Orig. Code 1863, § 4611; Code 1868, § 4633; Code 1873, § 4730; Code 1882, § 4730; Penal Code 1895, § 906; Penal Code 1910, § 931; Code 1933, § 27-401; Ga. L. 1982, p. 493, §§ 1, 2; Ga. L. 1983, p. 884, § 3-19; Ga. L. 1996, p. 742, § 2.)

- Pursuant to Code Section 28-9-5, in 1996, "known as" was deleted following "Title 42," in the last sentence.

- For article discussing preliminary hearings in felony cases as necessary to satisfy due process requirements, see 12 Ga. St. B.J. 207 (1976). 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).

Function of the preliminary commitment hearing is to authorize the keeping in custody of one accused with probable cause of committing a crime, pending determination by the grand jury from evidence presented to the grand jury that the accused should stand trial for the offense. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

Term "accusation" in a recognizance includes the term "warrant." Cox v. Dorsey, 152 Ga. 532, 110 S.E. 236 (1922).

Justices of the peace are vested with county-wide jurisdiction in issuing search warrants. State v. Varner, 248 Ga. 347, 283 S.E.2d 268 (1981) (decided prior to the 1983 amendment).

- Magistrate of one county has no authority to hold a court of inquiry against a person charged with committing a crime in another county. Burrow v. Southern Ry., 139 Ga. 733, 78 S.E. 125 (1913).

- Defendant's motion to suppress evidence seized pursuant to a warrant issued by a probate court judge was properly denied because the probate court judge was authorized to hold a court of inquiry under O.C.G.A. § 17-7-20 and, therefore, was authorized to issue a search warrant under O.C.G.A. § 17-5-21(a). O.C.G.A. § 40-13-21(b), assuming that statute required the state court to issue a warrant, pertained to the jurisdiction of probate courts in misdemeanor traffic cases and did not apply in this felony case. Joyner v. State, 347 Ga. App. 159, 817 S.E.2d 822 (2018).

- O.C.G.A. § 17-5-22 (when considered with O.C.G.A. §§ 17-7-20 and17-5-21) means that the authority of a judicial officer to issue a search warrant to be executed within the area of the officer's jurisdiction does not vanish when the officer physically steps into an area where the officer's authority is restricted within the county in which the officer serves. State v. Varner, 248 Ga. 347, 283 S.E.2d 268 (1981).

There is no requirement that a superior court judge conduct the preliminary 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).

Failure to grant a preliminary hearing is not reversible error. Sims v. State, 148 Ga. App. 733, 252 S.E.2d 910 (1979).

- Failure to conduct a commitment hearing prior to a defendant's motion to dismiss the indictment cannot constitute harmful error, nor would reversal of the judgment be warranted even if no commitment hearing had ever been held, because a preliminary hearing is not a required step in a felony prosecution once an indictment is obtained. Forehand v. State, 138 Ga. App. 468, 226 S.E.2d 297 (1976).

Preliminary hearing is not a required step in a felony prosecution, and once an indictment is obtained there is no judicial oversight or review of the decision to prosecute because of any failure to hold a commitment hearing. Sims v. State, 148 Ga. App. 733, 252 S.E.2d 910 (1979); Albert v. State, 152 Ga. App. 708, 263 S.E.2d 685 (1979).

No conviction on direct appeal or on collateral attack will be overturned because a commitment hearing is denied an appellant. Sims v. State, 148 Ga. App. 733, 252 S.E.2d 910 (1979).

Preliminary commitment hearing is not inherently a critical stage of criminal proceedings in this state. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

- Failure to make counsel available to the defendant at a preliminary commitment hearing, when the defendant enters a plea of guilty that is not introduced in evidence at the defendant's trial, is not a denial of due process of law under U.S. Const., amend. 14. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

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).

Cited in Georgia v. Port, 3 F. 117 (N.D. Ga. 1880); Ormond v. Ball, 120 Ga. 916, 48 S.E. 383 (1904); Crow v. State, 55 Ga. App. 288, 190 S.E. 65 (1937); Rhodes v. Pearce, 189 Ga. 623, 7 S.E.2d 251 (1940); Pennaman v. Walton, 220 Ga. 295, 138 S.E.2d 571 (1964); Whisman v. State, 223 Ga. 124, 153 S.E.2d 548 (1967); Pruitt v. State, 123 Ga. App. 659, 182 S.E.2d 142 (1971); Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971); Allison v. State, 129 Ga. App. 364, 199 S.E.2d 587 (1973); Gill v. Decatur County, 129 Ga. App. 697, 201 S.E.2d 21 (1973); Granger v. State, 235 Ga. 681, 221 S.E.2d 451 (1975); Tarpkin v. State, 236 Ga. 67, 222 S.E.2d 364 (1976); Contreras v. State, 242 Ga. 369, 249 S.E.2d 56 (1978); Branch v. State, 248 Ga. 300, 282 S.E.2d 894 (1981); Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).

OPINIONS OF THE ATTORNEY GENERAL

Training and certification of probate judges.

- Probate judges who hold courts of inquiry pursuant to O.C.G.A. § 17-7-20 need not obtain training and certification from the Georgia Justice Courts Training Council. 1982 Op. Att'y Gen. No. 82-69.

- Because a probate court may hold a court of inquiry pursuant to O.C.G.A. § 17-7-20, the probate court 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.

- Because a probate court may hold a court of inquiry pursuant to O.C.G.A. § 17-7-20, a probate court may also issue warrants and require bond pursuant to either O.C.G.A. § 17-6-90 or O.C.G.A. § 17-6-110. 1995 Op. Att'y Gen. No. U95-1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 587, 589.

- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 124 et seq.

- Unlawful arrest as bar to prosecution under subsequent indictment or information, 56 A.L.R. 260.