Despite the best efforts of criminal defendants and their attorneys, sometimes judges and juries get it wrong. They may miss a key piece of evidence, find themselves overly swayed by the opinions of certain experts, or simply have a bias against the defendant in the case. When this happens, they can end up finding a defendant guilty when the state did not meet their burden of proof beyond a reasonable doubt. Thankfully, our justice system understands that these types of errors occur and allows defendants an opportunity to appeal a trial court decision to a higher court of appeals. While the appellate process can ultimately remedy any errors that were made, it takes time and can leave criminal defendants in limbo while they wait. A recent case before the Court of Appeals of Georgia looked at whether defendants may be entitled to bond while they await the outcome of their appeal.
In this appeal, D.D. was charged with a third DUI in a 10 year period, which is treated as a high and aggravated misdemeanor in Georgia. Although D.D. was eligible for up to 36 months in jail, he was ultimately sentenced to only 180 days. D.D. did not promptly appeal this sentence but instead waited and filed a belated motion for permission from the trial court to file an “out of time appeal.” This would have allowed D.D. to go ahead and file an appeal with the Court of Appeals. The trial court, however, denied D.D.’s motion, which he independently appealed in another proceeding. At the same time that D.D. sought his out of time motion, he also requested that he be let out on bond while his appeal proceeded in the Court of Appeals. He argued that because of the length of time it would take for an appeal to be heard and resolved, he would already have served his full 180-day sentence before the Court of Appeals determined if the sentence was even proper. The trial court disagreed, however, finding that since it had denied D.D.’s out of time motion, there was no basis to offer D.D. bond. D.D. separately appealed this decision as well.
The Court of Appeals noted that no defendant is constitutionally entitled to bond while their appeal is pending. Thus, it is possible that defendants will be forced to serve their sentence while they wait for that sentence to be appealed. However, under Georgia law, defendants may be granted bond while their appeals are pending if they have only been convicted of a misdemeanor, depending on four factors: (1) whether the defendant may flee while on bond; (2) whether the defendant may pose a danger to others while on bond; (3) whether the defendant may attempt to intimidate witnesses or affect his case while on bond; and (4) whether it appears that the defendant’s appeal is frivolous.
Here, the Court of Appeals looked at the record below and determined that the trial court had evaluated these four factors when considering whether to release D.D. on bond pending his appeal, but it found that he might be a flight risk and that he could pose a danger to members of the community while on bond. Based on these two considerations, the trial court decided not to offer D.D. bond, especially in light of its decision to deny D.D.’s out of time motion. Before the Court of Appeals, D.D. did not argue that he was not a flight risk or that he would not be a danger to the community. Accordingly, the Court of Appeals held that the lower court decision had to stand and that D.D. would be denied bond while he awaited his appeal, even if it meant that he might serve his sentence for his third DUI while he waited. D.D.’s appeal was denied.
For many DUI offenses, the length of the sentence that may be imposed will often be less than the time it may take for an appeal of that sentence to wind itself through the Georgia appellate courts. This makes the opportunity for bond particularly important to DUI defendants. In light of this recent ruling, criminal defendants should do their best to file a timely appeal, which will make it much more likely that they will be granted bond. They should also be prepared to argue why they will not be a flight risk or a danger to the public while out on bond. For more information about how to preserve your case for appeal, or how to obtain bond, the DUI defense attorneys at Baker & Slider, LLC, are available to answer your questions. To set up an initial consultation, contact our office at 706-208-1514.