Atlanta November 12, 2002
The Honorable Supreme Court met pursuant to adjournment.
The following order was passed:
Rules of the Uniform Magistrate Rules are hereby amended to read as follows:
7.4 Prohibition on Ex Parte Communications. Except as authorized by law or by rule, judges shall not initiate, permit or consider ex parte communications by interested parties or their attorneys concerning a pending or impending proceeding. Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or the merits of the case are authorized, provided:
1. the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
2. the judge takes reasonable steps to promptly notify all parties of the substance of the ex partecommunication and allows an opportunity to respond.
25.3 Private citizen warrant application hearings.
A. Upon the filing of an application for an arrest warrant by a person other than a peace officer or law enforcement officer, and if the court determines that a hearing is appropriate pursuant to OCGA §17-4-40, the court shall give notice of the date, time and location of the hearing to the applicant and to the person whose arrest is sought by personal service or by first class mail to the person’s last known address or by any other means which is reasonably calculated to notify the person of the date, time and location of the hearing.
B. At the warrant application hearing the court shall:
a. Explain the probable cause purpose of the hearing;
b. Inform the accused of the charges;
c. Inform the accused of the right to hire and have the advise of an attorney, of the right to remain silent, and that any statement made may be used against him or her.
C. The warrant application hearing shall be conducted in accordance with OCGA §17-4-40(4) and (5) and Rule 25.2(C) of these rules.
D. A copy of the record of any testimony and the proceedings of the warrant application hearing, if available, shall be provided to the proper prosecuting officer and to the accused upon payment of the reasonable cost for preparation of the record.
E. The judge conducting a warrant application hearing is without jurisdiction to make final disposition of the case or cases at the hearing by imposing any fine or punishment.
RULE 26. APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS
26.1 Authority and Purpose. This rule is promulgated pursuant to OCGA.§17-12-4 in order to provide indigent persons with competent legal counsel in criminal proceedings.
26.2 Application For and Appointment of Counsel. When an accused person, contending to be financially unable to employ an attorney to defend against pending criminal charges or to appeal a conviction, desires to have an attorney appointed, the accused shall make a request in the form of an application for appointment of counsel and certificate of financial resources, made under oath and signed by the accused. This form shall contain information as to the accused’s assets, liabilities, employment, earnings, other income, number and ages of dependents, the charges against the accused and such other information as shall be required by the court. The purpose of the application and certification is to provide the court or its designee with sufficient information from which to determine the financial ability of the accused to employ counsel.
Upon a determination of indigency the court shall, in writing, authorize the appointment of counsel for the indigent accused. The original authorization of appointment shall be filed with the clerk of court; a copy of the authorization shall be forwarded to the clerk, court administrator, public defender or such other person designated by the court to assign an attorney to an indigent defendant. Such person shall notify the accused, the appointed attorney, the sheriff and the prosecuting attorney of the appointment. The application for an attorney and certificate of financial resources shall be in substantially the following form: application for appointment to caousel
26.3 Responsibility for Determination of Eligibility. The financial eligibility of a person for publicly provided counsel should be determined by the court . The court may appoint counsel in cases where the defendant does not qualify and cannot be provided counsel under provisions of the above.
26.4 Uniform Eligibility Guidelines. Income eligibility – Eligible accused persons include all applicants for an attorney with net income below a level set by the court as revised periodically.
The following special needs of a family unit may be deducted from net income in determining eligibility:
(1) Child care expenses for working custodial parents; and,
(2) Legally required support payments to dependents, including alimony for the support of a child/children. “Net income” shall include only a client’s take-home pay, which is the gross income earned by a client minus those deductions required by law or as a condition of employment. “Family unit” includes the defendant, a spouse, if the couple lives together, any minors who are unemployed and unmarried, and any infirm or permanently disabled person living with the defendant and for whom the defendant has assumed financial responsibility. The income of a minor who is attending school full time, but has after-school employment or does odd jobs, shall not be attributed to that of the family unit. No other persons, even if living within the same household, will be deemed members of the family unit.
In the event an accused person is discovered to have been ineligible at the time of the appointment of an attorney, the court shall be notified. The court may discharge the appointed attorney and refer the matter to the private bar. The attorney should be paid for the time spent on the case and recoupment sought from the ineligible person.
Regardless of the prima facie eligibility on the basis of income, a person who has sufficient assets that are easily converted to cash by sale or mortgage may not be qualified for representation.
The court may appoint counsel for representation for any accused person who is unable to obtain counsel due to special circumstances such as emergency, hardship, or documented refusal of the case by members of the private bar because of financial inability to pay for counsel.
If the accused is determined to be eligible for defense services in accordance with approved financial eligibility criteria and procedures, and if, at the time that the determination is made, the accused is able to provide a cash contribution to offset defense costs without imposing a substantial financial hardship either personally or upon dependents, such contribution may be required as a condition of continued representation at public expense. The court should determine the amount to be contributed. The contribution shall be paid directly to the fund for indigent defense of the affected county.
26.5 County Selected Methods of Providing Counsel. The court shall, whenever practicable, use an available public defender system, legal aid and defender society, agency for indigent defense, a panel of private attorneys, a combination of the above, or other existing means, to provide adequate legal defense for indigents as required by these rules and the laws of this State.
26.6 Assignment of Cases to Private Attorneys.
(A) Appointments of private attorneys shall be made on an impartial and equitable basis;
(B) The cases shall be distributed among the attorneys to ensure balanced workloads through a rotation system;
(C) More difficult or complex cases shall be assigned to attorneys with sufficient levels of experience and competence to afford adequate representation;
(D) Less experienced attorneys should be assigned cases which are within their capabilities, but should be given the opportunity to expand their experience under supervision; and,
(E) Cases in which the death penalty is sought shall be assigned only to attorneys of sufficient experience, skill and competence to render effective assistance of counsel to defendants in such cases.
RULE 27. ARRAIGNMENT
27.1 Calendar. The judge or the judge’s designee, shall set the time of arraignment unless arraignment is waived either by the defendant or by operation of law. Notice of the date, time and place of arraignment shall be delivered to the clerk of the court and sent to attorneys of record, defendants and bondsmen.
27.2 Call for arraignment. Before arraignment the court shall inquire whether the accused is represented by counsel and, if not, inquire into the defendant’s desires and financial circumstances. If the defendant desires an attorney and is indigent, the court shall authorize the immediate appointment of counsel.
Upon the call of the case for arraignment, unless continued for good cause, the accused, or the attorney for the accused, shall answer whether the accused pleads “guilty,” “not guilty” or desires to enter a plea of nolo contendere to the offense or offenses charged; a plea of not guilty shall constitute a joining of the issue.
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 other counsel and the defendant notify the judge prior to trial that such other counsel represents the accused and is ready to proceed, or counsel is otherwise relieved by the judge.
RULE 28. MOTIONS, DEMURRERS, SPECIAL PLEAS, AND SIMILAR ITEMS IN CRIMINAL MATTERS
28.1 Time for Filing. All motions, demurrers, and special pleas shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial. Notices of the state’s intention to present evidence of similar transactions or occurrences and notices of the intention of the defense to raise the issue of insanity or mental illness shall be given and filed at least ten  days before trial unless the time is shortened or lengthened by the judge. Such filing shall be in accordance with the following procedures.
28.2 Time for Hearing. All such motions, demurrers, special pleas and notices shall be heard and considered at such time, date, and place as set by the judge. Generally, such will be heard at or after the time of arraignment and prior to the time at which such case is scheduled for trial.
28.3 Notice of Prosecution’s Intent to Present Evidence of Similar Transactions.
(A) The prosecution may, upon notice filed in accordance with section 28.1 of these rules, request of the court in which the charging instrument is pending leave to present during the trial of the pending case evidence of similar transactions or occurrences.
(B) The notice shall be in writing, served upon the defendant’s counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice. The judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request. The burden of proving that the evidence of similar transactions or occurrences should be admitted shall be upon the prosecution. The state may present during the trial evidence of only those similar transactions or occurrences specifically approved by the judge.
(C) Evidence of similar transactions or occurrences not approved shall be inadmissible. In every case, the prosecuting attorney and defense attorney shall instruct their witnesses not to refer to similar crimes, transactions or occurrences, or otherwise place the defendant’s character in issue, unless specifically authorized by the judge.
(D) If upon the trial of the case the defense places the defendant’s character in issue, evidence of similar transactions or occurrences, as shall be admissible according to the rules of evidence, shall be admissible, the above provisions notwithstanding.
(E) Nothing in this rule is intended to prohibit the state from introducing evidence of similar transactions or occurrences which are lesser included alleged offenses of the charge being tried, or are immediately related in time and place to the charge being tried, as part of a single, continuous transaction. Nothing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses.
(F) This rule shall not apply to sentencing hearings.
28.4 Notice of Intention of Defense to Raise Issue of Insanity, Mental Illness or Mental Competency.
(A) If, in any criminal proceeding, the defense intends to raise the issue that the defendant or accused was or is insane, mentally incompetent, or mentally ill at the time of act or acts charged against the accused, or at the time of trial, such intention must be stated, in writing, in a pleading denominated as “Notice of Intent of Defense to Raise Issue of Insanity or Mental Incompetence.” This notice shall be filed and served upon the prosecuting attorney in accordance with section 28.1. of these rules. Upon the filing of such notice, the judge shall determine from the prosecuting attorney and the defense attorney whether such issue requires any further mental examination of the accused ahead of trial of the case on the merits.
(B) Except for good cause shown, the issue of insanity shall not be raised in the trial on the merits unless notice has been filed and served ahead of trial as provided in these rules.
28.5 Motions and Orders for Mental Examination at Public Expense. In pending cases where the mental competency of an accused is brought into question, the judge may, upon proper showing, exercise discretion and require a mental examination and evaluation at public expense. For a defendant who is represented by counsel, a motion for mental examination may be filed in writing by counsel setting out allegations and grounds for such motion, praying for a court-ordered evaluation. The judge may enter an order requiring psychiatric evaluation of the defendant for the purposes of competency to stand trial, degree of criminal responsibility at the time of the act in question and necessity of treatment. The judge may direct the Department of Human Resources (or any other forensic psychiatric service as may be necessary and available) to perform the examination at a time and place to be set by the department or service in cooperation with the county sheriff. A copy of the order shall be forwarded to the department or service accompanied by a copy of the accusation or specification of charges, a copy of the police arrest report, where available, and a brief summary of any known or alleged previous psychiatric treatment or hospitalization involving this particular person. Any other background information available to the court shall also be forwarded to the evaluating department or service to assist in performing adequately the requested services.
Copies of suggested orders requesting psychiatric examination are attached as Specimen Psychiatric Evaluation Order #1 and Specimen Psychiatric Evaluation Order #2. The department or service shall submit its report to the requesting judge, who shall provide copies of the report to the defendant’s attorney and the prosecuting attorney.
SPECIMEN COMMITTAL ORDER
SPECIMEN PSYCHIATRIC EVALUATION ORDER NO. 1
SPECIMEN PSYCHIATRIC EVALUATION ORDER NO. 2
RULE 29. CRIMINAL TRIAL CALENDAR
29.1 Calendar Preparation. All cases shall be set for trial within a reasonable time after arraignment. The judge or designee shall prepare a trial calendar, shall deliver a copy thereof to the clerk of court, and shall give notice in person or by mail to each counsel of record, the bondsman (if any) and the defendant at the last address indicated in court records, not less than 7 days before the trial date . The calendar shall list the dates that cases are set for trial, the cases to be tried at that session of court, the case numbers, the names of the defendants and the names of the defense counsel.
29.2 Removal From Calendar. No case shall be postponed or removed from the calendar except by the judge.
RULE 30. PLEADING BY DEFENDANT
(A) A defendant may plead guilty, not guilty, or in the discretion of the judge, nolo contendere. A plea of guilty or nolo contendere should be received only from the defendant personally in open court, except when the defendant is a corporation, in which case the plea may be entered by counselor a corporate officer. In misdemeanor cases, upon the request of a defendant who has made, in writing, a knowing, intelligent and voluntary waiver of his right to be present, the court may accept a plea of guilty in absentia.
(B) A defendant may plead nolo contendere only with the consent of the judge. Such a plea should be accepted by the judge only after due consideration of the views of the parties and the interest of the public in the effective administration of justice. Procedurally, a plea of nolo contendere should be handled under these rules in a manner similar to a plea of guilty.
30.2 Aid of Counsel – Time for Deliberation.
(A) A defendant shall not be called upon to plead before having an opportunity to retain counsel, or if defendant is eligible for appointment of counsel, until counsel has been appointed or right to counsel waived. A defendant with counsel shall not be required to enter a plea if counsel makes a reasonable request for additional time to represent the defendant’s interest, or if the defendant has not had a reasonable time to consult with counsel.
(B) A defendant without counsel should not be called upon to plead to any offense without having had a reasonable time to consider this decision. When a defendant without counsel tenders a plea of guilty or nolo contendere to an offense, the court should not accept the plea unless it is reaffirmed by the defendant after a reasonable time for deliberation, following the advice from the court required in section 30.8.
30.3 Propriety of Plea Discussions and Plea Agreements.
(A) In cases in which it appears that the interests of the public in the effective administration of criminal justice (as stated in section 30.6) would thereby be served, the prosecuting attorney may engage in plea discussions for the purpose of reaching a plea agreement. The prosecuting attorney should engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when the defendant is not eligible for or does not desire appointment of counsel and has not retained counsel.
(B) The prosecuting attorney, in reaching a plea agreement, may agree to one or more of the following, as dictated by the circumstances of the individual case:
(1) to make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or nolo contendere;
(2) to seek or not to oppose dismissal of the offense charged if the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to defendant’s conduct; or,
(3) to seek or not to oppose dismissal of other charges or potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere.
30.4 Relationship Between Defense Counsel and Client.
(A) Defense counsel should conclude a plea agreement only with the consent of the defendant, and should ensure that the decision to enter or not enter a plea of guilty or nolo contendere is ultimately made by the defendant.
(B) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and of considerations deemed important by him in reaching a decision.
30.5 Responsibilities of the Trial Judge.
(A) The trial judge should not participate in plea discussions.
(B) If a tentative plea agreement has been reached, upon request of the parties, the trial judge may permit the parties to disclose the tentative agreement and the reasons therefor in advance of the time for the tendering of the plea. The judge may then indicate to the prosecuting attorney and defense counsel whether the judge will likely concur in the proposed disposition if the information developed in the plea hearing or presented in the presentence report is consistent with the representations made by the parties. If the trial judge concurs but the final disposition differs from that contemplated by the plea agreement, then the judge shall state for the record what information in the presentence report or hearing contributed to the decision not to sentence in accordance with the plea agreement.
(C) When a plea of guilty or nolo contendere is tendered or received as a result of a plea agreement, the trial judge should give the agreement due consideration, but notwithstanding its existence, must reach an independent decision on whether to grant charge or sentence leniency under the principles set forth in section 30.6 of these rules.
30.6 Consideration of Plea in Final Disposition.
(A) It is proper for the judge to grant charge and sentence leniency to defendants who enter pleas of guilty or nolo contendere when the interests of the public in the effective administration of criminal justice are thereby served. Among the considerations which are appropriate in determining this question are:
(1) that the defendant by entering a plea has aided in ensuring the prompt and certain application of correctional measures;
(2) that the defendant has acknowledged guilt and shown a willingness to assume responsibility for conduct;
(3) that the leniency will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;
(4) that the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;
(5) that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct;
(6) that the defendant by entering a plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders.
(B) The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove the defendant’s guilt at trial rather than to enter a plea of guilty or nolo contendere.
30.7 Determining Voluntariness of Plea. The judge shall not accept a plea of guilty or nolo contendere without first determining, on the record, that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, the judge should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence leniency which must be approved by the judge, the judge must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the judge. The judge should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea.
30.8 Defendant to Be Informed. The judge should not accept a plea of guilty or nolo contendere from a defendant without first:
(A) Determining on the record that the defendant understands the nature of the charge(s);
(B) Informing the defendant on the record that by entering a plea of guilty or nolo contendere one waives:
(1) the right to trial by jury;
(2) the presumption of innocence;
(3) the right to confront witnesses against oneself;
(4) the right to subpoena witnesses;
(5) the right to testify and to offer other evidence;
(6) the right to assistance of counsel during trial;
(7) the right not to incriminate oneself; and that by pleading not guilty or remaining silent and not entering a plea, one obtains a jury trial; and
(C) Informing the defendant on the record:
(1) of the terms of any negotiated plea;
(2) that a plea of guilty may have an impact on his or her immigration status if the defendant is not a citizen of the United States;
(3) of the maximum possible sentence on the charge, including that possible from consecutive sentences and enhanced sentences where provided by law; and/or
(4) of the mandatory minimum sentence, if any, on the charge. This information may be developed by questions from the judge, the district attorney or the defense attorney, or a combination of any of these.
30.9 Determining Accuracy of Plea. Notwithstanding the acceptance of a plea of guilty, judgment should not be entered upon such plea without such inquiry on the record as may satisfy the judge that there is a factual basis for the plea.
30.10 Stating Intention to Reject the Plea Agreement. If the trial court intends to reject the plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement; (2) the trial court intends to reject the plea agreement presently before it; (3) the disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement; and (4) that the defendant may then withdraw his or her guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced.
30.11 Record of Proceedings. A verbatim record of the proceedings at which a defendant enters a plea of guilty or nolo contendere shall be made and preserved. The record should include:
(A) the inquiry into the voluntariness of the plea (as required in section 30.7);
(B) the advice to the defendant (as required in section 30.8);
(C) the inquiry into the accuracy of the plea (as required in section 30.9), and, if applicable;
(D) the notice to the defendant that the trial court intends to reject the plea agreement and the defendant’s right to withdraw the guilty plea before sentence is pronounced.
30.12 Plea Withdrawal.
(A) After sentence is pronounced, the judge should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.
(B) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw a plea of guilty or nolo contendere as a matter of right once sentence has been pronounced by the judge.
Rule 11. Electronic and photographic news coverage of magistrate court proceedings
Unless otherwise provided by rule of the Supreme Court or otherwise ordered by the assigned judge after appropriate hearing (conducted after notice to all parties and counsel of record) and findings, representatives of the print and electronic public media may be present at and unobtrusively make written notes and sketches pertaining to any judicial proceedings in the magistrate courts. However, due to the distractive nature of electronic or photographic equipment, representatives of the public media utilizing such equipment are subject to the following restrictions and conditions:
(A) Persons desiring to broadcast/record/photograph official court proceedings must file a timely written request with the judge involved prior to the hearing or trial, specifying the particular calendar/case or proceedings for which such coverage is intended; the type equipment to be used in the courtroom; the trial, hearing or proceeding to be covered; and the person responsible for installation and operation of such equipment.
(B) Approval of the judge to broadcast/record/photograph a proceeding, if granted, shall be granted without partiality or preference to any person, news agency, or type of electronic or photographic coverage, who agrees to abide by and conform to these rules, up to the capacity of the space designated therefor in the courtroom. Violation of these rules will be grounds for a reporter/technician to be removed or excluded from the courtroom and held in contempt.
(C) The judge may exercise discretion and require pooled coverage which would allow only one still photographer, one television camera and attendant, and one radio or tape recorder outlet and attendant. Photographers, electronic reporters and technicians shall be expected to arrange among themselves pooled coverage if so directed by the judge and to present the judge with a schedule and description of the pooled coverage. If the covering persons cannot agree on such a schedule or arrangement, the schedule and arrangements for pooled coverage may be designated at the judge’s discretion.
(D) The positioning and removal of cameras and electronic devices shall be done quietly and, if possible, before or after the court session or during recesses; in no event shall such disturb the proceedings of the court. In every such case, equipment should be in place and ready to operate before the time court is scheduled to be called to order.
(E) Overhead lights in the courtroom shall be switched on and off only by court personnel. No other lights, flashbulbs, flashes or sudden light changes may be used unless the judge approves beforehand.
(F) No adjustment of central audio system shall be made except by persons authorized by the judge. Audio recordings of the court proceedings will be from one source, normally by connection to the court’s central audio system. Upon prior approval of the court, other microphones may be added in an unobtrusive manner to the court’s public address system.
(G) All television cameras, still cameras and tape recorders shall be assigned to a specific portion of the public area of the courtroom or specially designed access areas, and such equipment will not be permitted to be removed or relocated during the court proceedings.
(H) Still cameras must have quiet functioning shutters and advancers. Movie and television cameras and broadcasting and recording devices must be quiet running. If any equipment is determined by the judge to be of such noise as to be distractive to the court proceedings, then such equipment can be excluded from the courtroom by the judge.
(I) Reporters, photographers, and technicians must have and produce upon request of court officials credentials identifying them and the media company for which they work.
(J) Court proceedings shall not be interrupted by a reporter or technician with a technical or an equipment problem.
(K) Reporters, photographers, and technicians should do everything possible to avoid attracting attention to themselves. Reporters, photographers, and technicians will be accorded full right of access to court proceedings for obtaining public information within the requirements of due process of law, so long as it is done without detracting from the dignity and decorum of the court.
(L) Other than as permitted by these rules and guidelines, there will be no photographing, radio or television broadcasting, including video taping pertaining to any judicial proceedings on the floor where the trial, hearing or proceeding is being held or any other floor whereon is located a courtroom, whether or not the court is actually in session.
(M) No interviews pertaining to a particular judicial proceeding will be conducted in the courtroom except with the permission of the judge.
(N) A request for installation and use of electronic recording, transmission, videotaping or motion picture or still photography of any judicial proceeding shall be evaluated pursuant to the standards set forth in OCGA §15-1-10.1.
(O) A request for media access to a court proceeding shall be in substantially the following form: REQUEST FOR ELECTRONIC AND PHOTOGRAPHIC