2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 3 - Indictments
§ 17-7-50. Right to Grand Jury Hearing Within 90 Days Where Bail Refused; Right to Have Bail Set Absent Hearing Within 90 Day Period

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.

(Code 1933, § 27-701.1, enacted by Ga. L. 1973, p. 291, § 1; Ga. L. 1996, p. 1233, § 4.)

- For annual survey on criminal law, see 64 Mercer L. Rev. 83 (2012).

JUDICIAL DECISIONS

Construction of "refused bail."

- Rules of statutory construction prohibit the phrase "refused bail" from being considered in isolation and, consequently, to limit application of the mandate of O.C.G.A. § 17-7-50 to the circumstance in which a criminal defendant has made a request of the court for bond and bond has been refused. The language of the final sentence of the statute, "in the event no grand jury considers the charges against the accused person within the 90 day period of confinement . . . the accused shall have bail set upon application to the court," does not make a distinction between those detainees who are "refused bail" and those who are "without bail"; instead it states an entitlement to bail for the accused person who has not been indicted within 90 days of incarceration. State v. English, 276 Ga. 343, 578 S.E.2d 413 (2003).

- Defendant's motion for bond was properly denied because a purported detainer did not meet the requirements in O.C.G.A. § 42-6-2, did not constitute arrest and confinement of the defendant, did not require the presentment of the charges to a grand jury within 90 days, and did not entitle the defendant to automatic bail under O.C.G.A. § 17-7-50. Denson v. State, 317 Ga. App. 456, 731 S.E.2d 130 (2012).

Applicability and construction with O.C.G.A. § 17-6-1. - Section was applicable to the first 90 days of confinement, and that section was applicable to all crimes after 90 days of confinement. After 90 days without bail and without indictment, the mandate of that section was that bail must be set by the trial judge. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975) ??? (see O.C.G.A. § 17-6-1).

Applicability and construction with O.C.G.A. § 17-6-14. - Although pretrial habeas corpus was a proper remedy after the defendant challenged a failure to set bail, pursuant to O.C.G.A. § 17-6-14(a), the defendant's initial bond sufficed to provide for the defendant's appearance upon the trial of the original charges; however, because the defendant was indicted within 90 days of the defendant's re-arrest on new charges, the defendant was not entitled to habeas corpus relief under O.C.G.A. § 17-7-50. Rainwater v. Langley, 277 Ga. 127, 587 S.E.2d 18 (2003).

Failure to set bail after 90 days of confinement without indictment does not require a reversal of the convictions on the indictments returned after the 90-day period. The proper procedure is to make application to the proper appellate court for bail pursuant to this section. Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975).

When the defendant spent 90 days incarcerated without having charges against the defendant presented to the grand jury, the defendant was entitled to have bond set. Rawls v. Hunter, 267 Ga. 109, 475 S.E.2d 609 (1996).

- Because the defendant was under arrest, physically restrained, and under guard while in a hospital, the defendant was in "confinement," as the term was used in O.C.G.A. § 17-7-50; therefore, because the defendant was held for 90 days without grand jury action, the trial court erred in denying the defendant's motion for bail on the charges for which the defendant was arrested. Tatis v. State, 289 Ga. 811, 716 S.E.2d 203 (2011).

- Even though the defendant did not petition for bond within 90 days of arrest and incarceration, the fact that the defendant remained in jail for 94 days prior to filing for bond was tantamount to the defendant being refused bail; thus, the trial court erred in denying the defendant bail. State v. English, 276 Ga. 343, 578 S.E.2d 413 (2003).

- Pretrial petition for a writ of habeas corpus filed by a jail inmate was properly denied as both the trial court and the habeas court correctly held that the inmate was entitled to have bail set on only the charge set forth in the arrest warrant, and not the other six charges handed down in the grand jury's subsequently issued indictment. Bryant v. Vowell, 282 Ga. 437, 651 S.E.2d 77 (2007).

Cited in Isaacs v. State, 259 Ga. 717, 386 S.E.2d 316 (1989); State v. Coleman, 306 Ga. 529, 832 S.E.2d 389 (2019).

RESEARCH REFERENCES

Am. Jur. 2d.

- 8A Am. Jur. 2d, Bail and Recognizance, § 1 et seq. 38 Am. Jur. 2d, Grand Jury, § 1 et seq.

- 8 C.J.S., Bail; Release and Detention Pending Proceedings, §§ 85 et seq., 97 et seq.

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

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

Litigation of Variances in Criminal Indictments, 157 Am. Jur. Trials 187.