Capestany v. State

• Decision Date: 19 December 2007
• Docket Number: No. A07A2323.,A07A2323.
• Citation: 289 Ga. App. 47,656 S.E.2d 196
• Parties: CAPESTANY et al. v. The STATE.
• Court: Georgia Court of Appeals

656 S.E.2d 196

289 Ga. App. 47

CAPESTANY et al. v. The STATE.

No. A07A2323.

Court of Appeals of Georgia.

December 19, 2007.

Arturo Corso, Joe R. Diaz, Buford, for appellants.

Timothy G. Madison, Dist. Atty., James B. Smith, Asst. Dist. Atty., for appellee.

ELLINGTON, Judge.

Pursuant to a granted interlocutory appeal, Carlos Capestany, Melva Hernandez, Raul Dominguez, and Saul Flores—Romero seek to appeal the denial of their petitions for pretrial bail, contending that they are entitled to immediate release on their own recognizance because they did not have "first appearance" hearings and bail hearings within the time required by law. For the following reasons, we affirm.

"The granting or denial of bail will not be set aside unless there is a manifest and flagrant abuse of discretion." (Citation omitted.) Ayala v. State, 262 Ga. 704, 705, 425 S.E.2d 282 (1993).

The record reveals the following facts. On February 28, 2007, police officers executed a search warrant at 97 Shepherds Court in Jefferson. They found a large indoor marijuana growing operation and arrested Dominguez and Flores—Romero, who were found in the basement. On March 2, police officers executed a search warrant at 109 Gold Crest Drive in Braselton, found evidence of a marijuana growing operation in the basement there, and arrested Capestany and Hernandez. On the same day, March 2, a magistrate issued arrest warrants for the appellants for the offenses of manufacturing marijuana, OCGA § 16-13-30,¹ and conspiracy to traffic marijuana, OCGA § 16-18-33. Also on the same day, the appellants each signed a form entitled "First Appearance Hearing Waiver."

Hernandez filed a petition for bail in the superior court on March 6; Dominguez filed a petition on March 15; Flores-Romero filed petitions on March 15 and 20; and Capestany filed petitions on March 15 and 29. On March 26, 2007, the superior court notified the appellants that their bail petitions would be heard on March 29. After the hearing, the superior court denied bail as to each appellant, finding that each posed a flight risk. The superior court also found that the appellants had waived the right to a first appearance hearing. This Court granted the appellants' application for interlocutory review. For the reasons explained below, we conclude that, under the circumstances, the appellants are not entitled to immediate release on their own recognizance regardless of whether they had first appearance hearings and bail hearings within the time allowed by law. Accordingly, we affirm.

A person arrested without a warrant has a constitutional right to have the probable cause for his or her continued detention reviewed by a neutral and detached magistrate as soon as reasonably feasible but, in any event, within 48 hours of the arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 55-58(III)(B), 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991). This due process right to a so-called "first appearance" or "initial appearance" hearing² is satisfied by compliance with OCGA § 17-4-62, which provides:

In every case of an arrest without a warrant, the person arresting shall, without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.

See also OCGA § 17-4-21.³ As the Supreme Court of Georgia has held, OCGA § 17-4-62 "does not require that a full adversarial hearing be held following a warrantless arrest. The statute merely seeks to insure that the arrest and continuing detention of an accused is reviewed by a neutral factfinder." Dean v. State, 250 Ga. 77, 81(2)(b) 295 S.E.2d 306 (1982).⁴ Accordingly, OCGA § 17-4-62 "is satisfied where . . . police obtain an arrest warrant within 48 hours of a valid warrantless arrest," even if the defendant is not taken before the magistrate who issues the warrant. (Citation omitted.) Dean v. State, 250 Ga. at 81(2)(b), 295 S.E.2d 306.

1. The appellants contend that the trial court erred in finding that they waived their first appearance hearing by executing waiver forms. Pretermitting whether the right to a timely first appearance hearing can be waived, we agree that the State failed to carry its burden of proving that the appellants knowingly and voluntarily waived their right to a hearing.⁵ As the Attorney General of Georgia cogently summarized in an opinion on this issue:

It is axiomatic that courts indulge every reasonable, presumption against waiver of constitutional or statutory rights. Of course, a waiver is the intentional relinquishment or abandonment of a known right or privilege. Any waiver, therefore, to be effective, must be made knowingly and voluntarily. The determination of whether there has been an intelligent waiver must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.

(Citations and punctuation omitted.) 1988 Op. Atty. Gen. 112 (No. U88-14).

In this case, the "First Appearance Hearing Waiver" form each appellant executed contains the statements that the defendant was advised that he or she had been charged with the offenses listed, that he or she was advised that bail had been denied, that his or her court date was "to be notified," and that he or she had received an application for appointment of counsel. The form then contains the statement, "I hereby waive my right to a first appearance hearing." The form does not purport to inform the arrestee of the various aspects of the right to a first appearance hearing or the consequences of relinquishing that right. Furthermore, the form does not specify that the waiver is knowing and voluntary. The officers who presented the waiver forms for signature did not testify at the bail hearing regarding the circumstances of the purported waiver. Thus, the record contains no evidence that the appellants' waiver of their due process right to a first appearance hearing was knowing and voluntary. Accordingly, the trial court erred in finding that the appellants waived their first appearance hearing by executing the waiver forms.⁶

2. The appellants contend that the State violated OCGA § 17-4-62 by failing to take them before a magistrate within 48 hours of their warrantless arrest, that the trial court consequently erred in refusing to release them on their own recognizance pending trial, and that this Court should now order them released. As quoted above, OCGA § 17-4-62 provides that any person who is arrested without a warrant and who is not brought before an appropriate judicial officer within 48 hours of arrest "shall be released." Binding precedent clarifies that this means that the defendant shall be released until a warrant or indictment is obtained, Vaughn v. State, 248 Ga. 127, 130(1)(a), 281 S.E.2d 594 (1981); Peters v. State, 115 Ga.App. 743, 746(2), 156 S.E.2d 195 (1967).⁷ Thus, once, a warrant is obtained, OCGA 167; 17-4-62 does not require that the defendant be released for being deprived of a timely first appearance hearing.

In this case, the record shows that the magistrate issued arrest warrants for Capestany and Hernandez within 48 hours of their arrest. As to them, OCGA § 17-4-62 was satisfied. Dean v. State, 250 Ga. at 81(2)(b), 295 S.E.2d 306. With regard to Dominguez and Flores-Romero, the record shows that the magistrate issued arrest warrants on the second day after the men were arrested. We cannot determine from evidence in the record, however, whether the warrants were obtained within 48 hours after the arrest. If the warrants were obtained within 48 hours, OCGA § 17-4-62 was satisfied. Id. at 81(2)(b), 295 S.E.2d 306. Even if the warrants were obtained more than 48 hours after the arrest in violation of OCGA § 17-4-62, however, the statutory remedy for the violation was only available during the period of illegal detention, which ended when the State obtained valid arrest warrants from a neutral and detached magistrate.⁸ Id. at 81(2)(b), 295 S.E.2d 306. Based on this record, the appellants were not entitled to be released on their own recognizance as a remedy for the delay in obtaining a review by an appropriate judicial officer of the issue of whether the arrest and continuing detention of the appellants was based on probable cause. Id.

3. The appellants contend that the State violated OCGA § 17-6-1(d), which requires the superior court to act on a bail motion within ten days of receiving the petition, and again argue that they are entitled to be released on their own recognizance as a result.⁹ Because OCGA § 17-6-1(d) does not provide this or any other remedy for the failure to conduct a timely hearing, however, the appellants' argument fails. See OCGA § 17-4-26 (providing for a first appearance hearing within 72 hours after an arrest under a warrant); Pennaman v. Walton, 220 Ga. 295, 297, 138 S.E.2d 571 (1964) (because OCGA § 17-4-26 "imposes no penalty if the arresting officer fails to take the accused before a committing officer within 72 hours, nor is there any provision that the offender is to be released if no committal hearing was held within 72 hours," an arrestee deprived of a timely first appearance was not entitled to immediate release).

For the foregoing reasons, the appellants are not entitled to the relief they seek, that is, release on their own recognizance pending trial.¹⁰ The appellants having raised no challenge to the trial court's finding that bail be denied due to the risk that the appellants will flee the jurisdiction, the order is affirmed.

Judgment affirmed.

ANDREWS, P.J., and ADAMS, J., concur.

1. Because manufacturing a controlled substance is bailable only before a judge of the superior court, OCGA § 17-6-1(a)(9), the magistrate did...