State v. Godfrey

• Decision Date: 09 April 1992
• Docket Number: No. A92A0306,A92A0306
• Citation: 418 S.E.2d 383,204 Ga.App. 58
• Parties: The STATE v. GODFREY et al.
• Court: Georgia Court of Appeals

Page 383

418 S.E.2d 383

204 Ga.App. 58

The STATE v. GODFREY et al.

No. A92A0306.

Court of Appeals of Georgia.

April 9, 1992.

Reconsideration Denied April 24, 1992.

Certiorari Denied June 10, 1992.

Harry N. Gordon, Dist. Atty., Jimmie E. Baggett, Jr., Asst. Dist. Atty., for appellant.

Cook, Noell, Tolley & Aldridge, Edward D. Tolley, Athens, Bruce S. Harvey, Jeffrey R. Davis, Atlanta, for appellees.

SOGNIER, Chief Judge.

Leonard Godfrey and Walter Davis, Jr., were arrested pursuant to warrants and charged with trafficking in cocaine. Bond and preliminary hearings were set for both. Prior to the dates designated for their preliminary hearings, Godfrey and Davis were indicted by a grand jury and neither preliminary hearing took place. The trial court granted the motions to dismiss their indictments filed by Godfrey and Davis prior to trial, and the State appeals. See OCGA § 5-7-1(1).

The trial court based its ruling on its finding that appellees had not been "accorded a probable cause hearing before a magistrate within seventy[-]two hours as required by OCGA § 17-4-26," and that the Clarke County District Attorney's practice of canceling preliminary hearings when indictment either had occurred or was imminent violated appellees' constitutional right to due process of law guaranteed by the Fifth and Fourteenth Amendments to the U.S. Constitution. We agree with appellant that this ruling was in error, and we reverse.

Although the commitment hearing is a "critical stage" of criminal procedure entitling a defendant to counsel, Coleman v. Alabama, 399 U.S. 1, 9-10, 90 S.Ct. 1999, 2003, 26 L.Ed.2d 387 (1970), failure to hold such a hearing does not constitute a deprivation of a defendant's constitutional rights. A criminal defendant has no constitutional right to a commitment hearing. Hunt v. Hopper, 232 Ga. 53, 54, 205 S.E.2d 303 (1974). Rather, the right to such a hearing is statutory, governed in Georgia by OCGA § 17-4-26. That statute provides that "[e]very law enforcement officer arresting under a warrant shall exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail and in any event to present the person arrested before a committing judicial officer within 72 hours after arrest. The arresting officer shall notify the accused as to when and where the commitment hearing is to be held. An arrested person who is not notified before the hearing of the time and place of the commitment hearing shall be released." The 72 hour limit in the statute has been interpreted as applying only to the time within which a defendant must be brought before a magistrate, and not to the time within which a probable cause hearing must be held. Dodson v. Grimes, 220 Ga. 269, 270(1), 138 S.E.2d 311 (1964). Thus, a magistrate need not hold a commitment hearing at the time an accused is brought before him within 72 hours of arrest. Id.

Moreover, it is well established in this state that a commitment hearing is not a required step in a criminal proceeding and failure to hold one is not reversible error. State v. Middlebrooks, 236 Ga. 52, 55, 222 S.E.2d 343 (1976). Accord ...