INDICTMENTS & ARRAIGNMENT
Once a person is arrested, they have a preliminary hearing in Magistrate Court to determine if their case should be bound over or sent to a higher court. Misdemeanors are sent to State Court and felonies are sent to Superior Court. In reality, misdemeanors are sent to the Solicitor General’s office for further prosecution, and felonies are sent to the District Attorney’s office for further prosecution.
The District Attorney presents most felony cases to the grand jury and gets an indictment against the defendant. An indictment is the formal piece of paper charging the defendant with a crime. Except for public officials and peace officers, a defendant does not get a chance to present his case to the grand jury. Orkin v. State, 236 Ga. 176 (1976). Grand jury proceedings are confidential and thus the defendant is not entitled to a transcript of those proceedings. Isaacs v. State, 259 Ga. 717 (1989). If it appears that a competent witness was sworn and examined before the grand jury, a defendant cannot complain that there was insufficient evidence, illegal evidence, or no evidence to support the indictment. Isaacs v. State, 259 Ga. 717 (1989). For certain crimes, such as forgery, the law allows the District Attorney to draft an accusation (another formal piece of paper charging the defendant) without presenting the case to the grand jury. O.C.G.A. § 17-7-70.1. Once an indictment is returned by the grand jury or an accusation is drafted by the District Attorney, the case then goes to an Arraignment calendar. In all criminal cases the judge shall fix a date on which the defendant shall be arraigned. The judge can designate the District Attorney to set the time of arraignment. The clerk of the court, at least five days prior to the date set for arraignment, shall mail to the accused and his attorney of record, if known, notice of the date which has been fixed for arraignment. O.C.G.A. § 17-7-91 (a); Uniform Superior Court Rule 30.1. There may be a considerable delay between the Preliminary Hearing and Arraignment . A defendant may ask for a bond hearing while the case is waiting for an indictment. Other than a possible bond hearing, there will not be any court dates between the Preliminary Hearing and Arraignment. "There is no provision of law requiring that an accused be arraigned within any fixed period of time." Bidd v. State, 253 Ga. 289 (1984). There is a burden on a defendant to protect his right to a speedy trial. Simpson v. State, 150 Ga. App. 814 91979). Therefore, if a defendant wants a speedy trial he must make a demand under O.C.G.A. § 17-7-170 or O.C.G.A. § 17-7-171. The demand must be made after the case has been indicted and during the court term at which the indictment or accusation is filed or at the next court term. The demand must be made even if the defendant has not been brought to court for arraignment. The terms of court are found at O.C.G.A. § 15-6-3. Arraignment is one of those "critical stages" of a criminal proceeding during which an accused is entitled to representation. Carswell v. State, 244 Ga. App. 516 (2000). Before arraignment the court shall inquire whether the accused is represented by counsel and, if not, inquire into the defendant’s financial circumstances. If the defendant desires an attorney and is indigent, the court shall authorize the immediate appointment of counsel. Uniform Superior Court Rule 30.2. Upon arraignment, the attorney, if any, who announces for or on behalf of an accused, or who is entered as counsel of record, shall represent the accused in that case throughout the trial, unless another lawyer and the defendant notify the judge prior to trial that the other lawyer now represents the accused and is ready to proceed, or the judge allows the first lawyer to get off the case. A defendant's attorney is authorized to waive arraignment and enter a not guilty plea in his client's absence. Davis v. State, 135 Ga. App. 203, (1975). This is usually done by submitting a written waiver of arraignment. The arraignment is the opportunity for the defendant to enter a plea of guilty or not guilty to the charges. Upon the arraignment of a person accused of committing a crime, the indictment or accusation shall be read to him and he shall be required to answer whether he is guilty or not guilty of the offense charged, which answer or plea shall be made orally by the accused person or his counsel. O.C.G.A. § 17-7-93. The reading of the indictment may be waived.
All pretrial motions, including demurrers (challenges to the form or substance of the indictment) and special pleas, shall be filed within ten days after the date of arraignment unless the time for filing is extended by the court. O.C.G.A. § 17-7-110. A motion can be made asking for additional time after receipt of discovery (the paperwork detailing what the case is about)
to file motions. If this motion is made, an order granting the motion should be attached for the judge’s signature. If the judge does not grant an extension, any untimely motions may not be heard and the defendant will not have any remedy on appeal. Flournoy v. State, 299 Ga. App. 377 (2009). Upon written demand by the prosecuting attorney, within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant's intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied. O.C.G.A. § 17-16-5(a).There are exceptions to the 10 days for motions. Notices of the states intention to present evidence of similar transactions and notices of the intention of the defense to raise the issue of insanity or mental illness, or the intention of the defense to introduce evidence of specific acts of violence by the victim against third persons, shall be given and filed at least ten [10] days before trial unless the time is shortened or lengthened by the judge. Uniform Superior Court Rule 31.1.
