O.C.G.A.
O.C.G.A.

O.C.G.A. § 17-7-90 (2019)

Issuance of bench warrant; execution; receiving bail, fixing bond, and approving sureties

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) A bench warrant may be issued by a judge for the arrest of a person: (1) Accused of a crime by a grand jury; (2) Except as otherwise provided in Code Section 17-6-11, charged with a crime who has failed to appear in court after: (A) Actual notice of the time and place to appear to the person in open court;

(B) Notice of the time and place to appear to the person by mailing a notice to such person’s last known address; or (C) The person has otherwise been notified of the time and place to appear personally, in writing, by a court official or officer of the court; (3) Charged with a crime upon the filing by the prosecutor of an accusation supported by affidavit; or (4) Who failed to dispose of his or her charges or waive arraignment and plead not guilty after the expiration of the 30 day period set forth in subsection (b) of Code Section 17-6-11. (b) Every officer is bound to execute a bench warrant within his or her jurisdiction, and every person so arrested shall be committed to jail until bail is tendered. Any judicial officer or the sheriff of the county where the charge was returned may receive the bail, fix the amount of the bond, and approve the sureties unless it is a case that is bailable only before some particular judicial officer.

History

Orig. Code 1863, § 4608; Code 1868, § 4630; Code 1873, § 4727; Code 1882, § 4727; Penal Code 1895, § 932; Penal Code 1910, § 957; Code

1933, § 27-801; Ga. L. 1989, p. 623, § 2; Ga. L. 2004, p. 631, § 17; Ga. L. 2017, p. 608, § 2/SB 176.

Annotations

JUDICIAL DECISIONS ‘‘Any judicial officer’’ defined. - ‘‘Any judicial officer’’ means an officer of the county where the accusation is found. An officer of another county cannot admit a person to bail. Weatherly v. Beavers, 139 Ga. 122, 76 S.E. 853 (1912). Description of the crime in the bench warrant may be general. Brady v. Davis, 9 Ga. 73 (1850). When arrest may be made. - Arrest may be made either before or after an accusation is made or an indictment found by a grand jury. Rogers v. State, 133 Ga. App. 513, 211 S.E.2d 373 (1974). Agreement by a sheriff to protect sureties after taking the sureties’ bond will not prevent forfeiture. McClure v. Smith, 56 Ga. 439 (1876). Court clerks protected from suit on arrest warrant by judicial and quasi-judicial immunity. - Appellant’s

suit against clerks of a city municipal court was properly dismissed because the clerks’ failure to perform their duties to withdraw a canceled arrest warrant from the state’s criminal database, which led to the appellant’s arrest and detention, were actions protected by quasi-judicial immunity as to the appellant’s claims of wrongful arrest. Spann v. Davis, No. A20A0202, 2020 Ga. App. LEXIS 368 ( June 22, 2020). Cited in Vanderford v. Brand, 126 Ga. 67, 54 S.E. 822, 9 Ann. Cas. 617 (1906); Newsome v. Scott, 151 Ga. 639, 107 S.E. 854 (1921); Harris v. Whittle, 190 Ga. 850, 10 S.E.2d 926 (1940); Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957); Goodine v. Griffin, 309 F. Supp. 590 (S.D. Ga. 1970); Kametches v. State, 242 Ga. 721, 251 S.E.2d 232 (1978).

OPINIONS OF THE ATTORNEY GENERAL Power of judge of probate court to issue arrest warrant. - Judge of the probate court does not have authority to issue a bench warrant, but the judge does have authority to issue an arrest warrant for a person who does not appear to answer a traffic violation citation issued to the person, regardless of whether the person resides in the county. 1975 Op. Att’y Gen. No. U75-65. Service of warrants which do not fit definition of ‘‘bench warrant.’’ - Any warrant issued by the court itself resulting from a case of criminal contempt or when a misdemeanor case is proceeding upon an accusation or to bring in a witness who has not obeyed a subpoena issued in a criminal case can properly be served by members of the Department of Public Safety, even though such a warrant would not be a bench warrant under the

narrow definition given by this section. 1963-65 Op. Att’y Gen. p. 42. Warrant for arrest of traffic law violator. - Named probate court may issue a warrant ordering apprehension of an individual charged with violating traffic laws of this state who fails to appear in court on the date and at the time specified in the citation upon which he or she was arrested. 1980 Op. Att’y Gen. No. U80-58. Professional bondsman may not make an arrest pursuant to a bench warrant. 1970 Op. Att’y Gen. No. U70-83. Approval of sureties. - Former Code 1933, §§ 27-801 and 27-902 (see O.C.G.A. §§ 17-7-90, 17-6-1 and 17-6-2) provided for the approval of sureties by sheriffs or judicial officers. Qualifications, such as solvency and reliability, may be inquired into before approval. 1970 Op. Att’y Gen. No. U70-83.

RESEARCH REFERENCES Am. Jur. 2d. - 8A Am. Jur. 2d, Bail and Recognizance, §§ 1 et seq., 121 et seq. C.J.S. - 8 C.J.S., Bail; Release and Detention Pending Proceedings, § 70 et seq. 22 C.J.S., Criminal Procedure and Rights of the Accused, § 185 et seq.

ALR. - Bail: imposition of life sentence as affecting capital character of offense, 3 A.L.R. 970. Pretrial preventive detention by state court, 75 A.L.R.3d 956.

Notes of Decisions
Cited in 11 cases (4 in the last 5 years), 1984–2024 · leading case: Bunyon v. Burke Cnty., 285 F. Supp. 2d 1310 (S.D. Ga. 2003).
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Bunyon v. Burke Cnty., 285 F. Supp. 2d 1310 (S.D. Ga. 2003). · cites it 7× “These requirements are not necessary for a bench warrant, the contents of which are set forth in O.C.G.A. § 17-7-90. See Chiasson v. State, 250 Ga.”
Harvey v. State, 469 S.E.2d 176 (Ga. 1996). · cites it 4× “See also OCGA § 17-7-90. Because of the stipulation in Stringer , this court was concerned only with the validity of the bench warrant and not, as in the instant case, with the effect of a recalled bench warrant on the determination of probable cause for a warrantless arrest.”
Chiasson v. State, 549 S.E.2d 503 (Ga. Ct. App. 2001). · cites it 6× “Requirements for bench warrants are set forth in OCGA § 17-7-90 rather than OCGA § 17-4-41.”
The State v. Wood, 790 S.E.2d 84 (Ga. Ct. App. 2016). · cites it 4× “The State argues that this factual determination was wrong, and it relies on OCGA § 17-7-90 and Chiasson v. State, 250 Ga.”
Watts v. Pitts, 322 S.E.2d 252 (Ga. 1984). · cites it 2× “We therefore hold that a person who is arrested and released within the time prescribed by law on an appearance bond is not entitled to a commitment hearing.”
Dennis v. Paxton, 668 S.E.2d 258 (Ga. 2008). · cites it 4× “See OCGA § 17-7-90. Dennis was arrested in March 2008 in Florida, and after extradition proceedings, he was returned to Forsyth County where he is incarcerated pending trial on the above charges.”
Hammond v. State, 441 S.E.2d 675 (Ga. Ct. App. 1994). · cites it 2× “Defendant’s remaining enumeration of error complains that the trial court refused to charge the jury on the provisions of OCGA § 17-7-90 relating to the legal definition and effects of bench warrants.”
Sapp v. Burke Cnty. Det. Ctr. (S.D. Ga. 2023). · cites it 4× “Pursuant to O.C.G.A. § 17-7-90(a)(2), a bench warrant may be issued by a judge for the arrest of a person who has failed to appear in court.”
Jessica Alred v. Georgia Pub. Def. Council (Ga. Ct. App. 2022). · cites it 2× “But Alred argues that the professional negligence of Love and her employer resulted in (1) Love’s failure to receive notice about the calendar call and inform Alred of same; (2) Love’s failure to appear at the calendar call on Alred’s behalf; (3) Alred’s incarceration and…”
Murray v. Colvin (M.D. Ga. 2024). · cites it 2× “”); O.C.G.A. § 17-7-90(a)(1) (“A bench warrant may be issued by a judge for the arrest of a person .”
Hank Carver Spackman v. State (Ga. Ct. App. 2023). · cites it 2× “5 The record does not indicate what prompted the municipal court to bind the charges over to the state court, and the hearing transcript reflects that a bench warrant was issued for Appellant in October 2016, which suggests that the UTCs may have been filed at some point prior…”
— 17-7-90(a)(1) — 1 case
Murray v. Colvin (M.D. Ga. 2024). “”); O.C.G.A. § 17-7-90(a)(1) (“A bench warrant may be issued by a judge for the arrest of a person .”
— 17-7-90(a)(2) — 1 case
Sapp v. Burke Cnty. Det. Ctr. (S.D. Ga. 2023). “Pursuant to O.C.G.A. § 17-7-90(a)(2), a bench warrant may be issued by a judge for the arrest of a person who has failed to appear in court.”
— 17-7-90(b) — 1 case
Sapp v. Burke Cnty. Det. Ctr. (S.D. Ga. 2023). “Pursuant to O.C.G.A. § 17-7-90(a)(2), a bench warrant may be issued by a judge for the arrest of a person who has failed to appear in court.”
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