Bail, Bond and Supercedes Explained
When a person is arrested and charged with a crime they may be released by making bond. Bail is the actual collateral required to be posted and bond is the promise to the court you will return for court. Bond ensures the Defendant’s appearance in court for the criminal charge at all phases against them, and serves to protect other interests the court may have. Certain felony charges can only receive bond from Superior Court Judges. These are extremely serious charges carrying substantial minimum jail time. Most carry a possible life sentence.
All misdemeanors and most felonies receive bond from a magistrate judge. Some bonds for misdemeanors are preset by the county’s sheriff’s department. Many people call or ask for signature bonds. This is a bond where a person is allowed to sign their own bond without having to post any bail. This happens when you get a speeding ticket. If you look at the bottom of your citation where the officer asks you to sign the ticket, it will indicate person signed in lieu of bail. This means you were not required to post any collateral to ensure your presence on your court date.
Georgia law requires an appearance within 72 hours of an arrest. This is done before a magistrate court judge and bond is set for most offenses. This is not an evidentiary hearing. A person is entitled to a reasonable bond if a case is not indicted within 90 days. If bail is too high for an individual, then a lawyer can file a motion to reduce it. In addition to bail many bonds contain special conditions preventing or requiring certain conduct. For example a bond may require a Defendant to stay away from a certain place or person or to report to pretrial services on a weekly basis.
If a person posts bail then he or she is liable if the Defendant does not appear in court to answer the charges against them. When a defendant fails to appear in court the judge will order the bond revoked and issue a new bench warrant without bond. If a defendant violates the conditions of their bond then a judge may revoke the bond. This is similar to a probation revocation. The standard of evidence is the same.
Finally, in cases where a person loses a trial they can request a supersedes bond while the case is appealed. Many judges will not grant this type of bond because they feel the person will flee.
Factors for Bail and Bonds
The two biggest factors for bail and bonds are the severity of the charge and the presiding judge. Judges have discretion on what bail and conditions of bond should be set and their opinion is what matters. One judge may give a $100,000.00 bail, while another may give a $5,000.00 bail on the same charge with some special conditions. This firm has had cases where one judge refused to give any type of bond while another judge granted a signature bond on the same case.
Other important factors in determining bond include a Defendant’s criminal history, his or her ties to the community, the risk of flight, the potential to intimidate witness or interfere with the administration of justice, the strength of the state’s evidence, the likelihood of the Defendant committing another crime if released, and the Defendant’s financial ability to make bond. A $1,000.00 bail bond may be the equivalent to no bond at all for many defendants.
Preliminary Hearings and Grand Jury
If a person bonds out of jail then he/she waives his/her right to a preliminary hearing unless there are special conditions with his bond. A preliminary hearing requires the state to prove probable cause that a crime has occurred. These hearings require the State to show their evidence and can be beneficial for a defense attorney to gather information about the Defendant’s case. On rare occasions a judge may not find probable cause. This means the case is temporarily dismissed and the person is released. However, the State can still decide to seek an indictment by presenting the case to a Grand Jury.
A Grand Jury is composed of several members from their county. They are randomly selected for jury duty and are given this assignment. The State submits its evidence without defense council present. The grand jury chooses to bring or not bring a charge based on the evidence the state presents. If they bring the charge then a Defendant is indicted. This can be done before a preliminary hearing ever occurs and if this happens then a preliminary hearing is no longer granted. There is a common expression you can indict a “rock for murder.” This is an overstatement but shows that simply because someone is indicted does not mean they are guilty. It emphasizes the one sided approach of a Grand Jury.
Difference between Cash, Property or Bail Bondsman
A judge may set a cash only bond or a regular bond. A cash bond requires cash only, no real property may be used and no bail bondsman can be used. However, if the person appears in court and resolves his/her case then the bond will be returned with only small fees deducted. A property bond usually occurs when the Defendant or the Defendant’s family member owns land or a house and posts this as collateral for the set bond. Many counties require a person to post double the bond amount when property is used. If the case is resolved and the Defendant appears at each court preceding then the property reverts back to the owner. Finally a bail bondsman is a company licensed by the state to post bail for a Defendant. They require a percent of bail as their fee (12%-15%). If you use them and do not appear then they will come looking for you. The money you pay them will not be refunded.
Procedures Specific to Dekalb and Fulton Felony Cases
DeKalb County sets a bail bond within 72 hours for all non-serious felonies. If the bond is too high or denied then an attorney must file a motion for a reduction in bond or for a bond with the Superior Court. The motion will be heard the following Thursday from the date of filing in front of the assigned presiding judge. The presiding judges are known a month in advance. If the motion is heard and the bond is still too high then you will have to wait 60 days until you can be heard again. In DeKalb you can usually determine which judge you appear in front of for bond by deciding when to file your motion for bond or bond reduction. However, once the case is indicted the assigned judge is the only one allowed to modify bond.
Fulton County sets a bond within 72 hours at the jail. This usually happens the day after arrest. If a person cannot make bond there are three judges who preside over the all-purpose calendars. They rotate and you must file a motion for bond reduction with the court and whichever judge is on the rotation will hear your motion on bond. This usually happens with in three weeks of arrest. Fore the more serious cases this is the only way to obtain a bond other than the consent of an Assistant District Attorney from Mr. Howard’s Office.
The first time bond is set or denied at the first appearance will be inside the jail for both counties. This will be done in front of a magistrate court judge. This means if you are charged with a serious felony you will not be eligible for bond until a motion is filed in Superior Court.
Our firm has strong relationships with District Attorneys offices in Atlanta as well as many of the Atlanta area judges. We often are able to obtain lower bonds. In addition creativity can be used in an effort to try and get a lower bond. Call our office if you need assistance in obtaining a bond.