CRIMINAL FAQ's
ANSWERS

What is the difference between assault and battery?

  • Assault is acting in a way that is likely to cause serious bodily injury or places another person in fear of serious bodily injury.
  • Battery is an unwanted physical touching.

What is the difference between a felony and a misdemeanor in Georgia?

  • A misdemeanor is a criminal charge punishable by less than twelve months imprisonment and a $1,000 fine.
  • An aggravated misdemeanor is generally punishable by less than a year in jail and no greater than a $5,000 fine.
  • A felony is a criminal charge punishable by more than one year of incarceration and potential fines greater than $1,000.

What is the difference between jail and prison in Georgia?

  • Jails are locally-operated facilities that hold inmates who are awaiting trial (and have not been released on bond), inmates who are awaiting sentencing, and individuals who are serving a jail sentence that is less than twelve months long.
  • Prisons are long-term facilities run by the Georgia Department of Corrections or the federal government where inmates are serving sentences that are longer than one year. 

What is are the differences between probation and parole?

  • Probation is a court’s alternative to imposing a jail sentence.
    • Probation is ordered when the circumstances and seriousness of the crime suggest that the person charge is not a threat to society and that incarceration is not an appropriate punishment.
    • The probationer may freely live in the community, but must abide by certain conditions of probation for a period of time specified by the court and report regularly (often, monthly) to an appointed probation officer.
    • Conditions of probation vary case to case and jurisdiction to jurisdiction. Some of the conditions imposed may include living where directed, participating in rehabilitation programs, submitting to drug and alcohol tests and maintaining employment.
    • Said appointed probation officer will monitor the probationers and their progress.
  • Parole is granted to certain prison inmates after they have served a portion of their prison sentence.
    • While on parole, parolees must abide by certain terms and conditions that are quite similar to probation.
    • These terms include living within state or county lines, meeting regularly with a parole officer, submitting to drug and alcohol tests, and providing proof of residence and employment.
    • Because parole is a privilege, he faces reimprisonment if he fails to report or otherwise does not comply with the terms of parole.

How does the Probation process work?

  • When a person receives a probationary sentence, they are assigned to a probation officer, who will monitor their progress as they complete their sentence.
  • Probationers are often required to report on a monthly basis to their probation officers.
  • And, depending on the terms of the probationers’ sentence, the probationer may have to pay fees and fines, complete court-ordered classes, perform community service, and pass drug tests at each report/visit.

How can Parole be violated?

  • A probationer can violate probation a few different ways. Here are the ways:
    • A technical violation is when you are alleged to have violated a technical condition of your probation, such as paying restitution, fines or court costs, completing community service, meeting with your probation officer, not leaving the jurisdiction, etc.
    • A special condition violation is when you are alleged to have violated a special condition of probation, such as having no contact with the victim, earning a GED, etc.  Any condition of probation can be deemed a special condition of probation.
    • A substantive violation occurs when you are arrested because you have committed a new criminal offense while on probation.

Are there hearings to determine if parole is violated?

  • Yes. If and when a probation officer believes their probationer has violated probation, they can allege said violation to the court and petition for the issuance of an arrest warrant.
  • An arrest warrant for a violation of probation (VOP) usually has a "no bond" provision, meaning that unless you retain an attorney to resolve your case quickly or obtain a bond, you may be sitting in jail for weeks or months until your probation violation case is heard in court and/or resolved.
  • At a hearing for a probation violation, there is no right to a jury trial and the burden of proof is merely a preponderance of the evidence (as opposed to the "proof beyond a reasonable doubt" standard required for a criminal jury trial).
  • As a result, prosecutors may have a much easier time winning a violation of probation hearing, as their standard of proof is so low.
  • If the court determines a probationer has violated terms of their probation, the court has a number of sentencing options depending on the nature of the violation and the length of the probationary sentence.

What are some of the possible penalties for violating parole?

  • Here are some of the punishments a court can impose upon the finding of a probation violation:
    • Incarceration for some, if not all, of the remaining probationary sentence.
    • Additional months on probation.
    • Imposition of additional community service, fines, classes, etc.
  • It should be noted that the court is required to review each allegation of violation on a case-by-case basis to determine under the particular facts and circumstances of the case, whether a particular violation is willful and substantial by the greater weight of the evidence.
  • That is the standard: whether a violation of probation was willful, deliberate and substantial. To ensure the best result possible, it would be best to consult with an experienced attorney to discuss possible defenses to alleged probation violations.
  • At the Kaufman Law Firm, we handle probation violations for misdemeanors and felonies in counties throughout the State of Georgia.

What is an Alford plea?

  • An Alford Plea is type of guilty plea whereby a defendant proclaims he is innocent of the crime but admits that the prosecution has enough evidence to prove that he is guilty beyond a reasonable doubt.

What does it mean to plead NOLO in Georgia?

  • Pleading “nolo contendere” or “No Contest” is essentially pleading guilty with some possible benefits, especially in cases involving Marijuana Possession < 1 ounce and traffic infractions. It can be used once every 5 years. A “nolo plea” is not an admission of guilt and therefore, cannot be used in a civil case against the defendant as an admission.
  • A “nolo” plea may save a person’s license in certain situations and prevent points from being assessed.
  • A  “nolo” plea may also make it harder for car insurance companies to become aware of the infraction.
  • A “nolo” plea will not prevent CDL (commercial driver’s license) disqualification. DDS may also choose not to honor the “nolo” plea and the infraction will often still appear on your driving record.

What is a Criminal Bond?

  • A criminal bond is a financial guarantee to ensure the appearance of an individual charged with a crime until the case is dismissed or otherwise disposed of.
  • If an individual is released on bond and does not appear in court, their bond will be forfeited and a warrant will be issued for their arrest. Additionally, if an individual is released on bond through a bonding company and does not appear in court, that individual may also face felony “bail jumping” charges.  
  • Historically, the purpose of bond was to allow individuals accused of crimes the opportunity to carry on with their lives while they await resolution of their cases by securing their appearance in court with “collateral”.  
  • It was never meant to be a pretrial punishment, considering the law deems accused persons innocent until proven guilty. Depending on the nature of the criminal charges, an individual may or may not, by law, have a right to bond.

How are Bond amounts set?

  • Judicial officers have sole discretion to set bond amounts.
  • For less serious offenses, jurisdictions often have a set “bail schedule” at the jail that provides bail amounts for common charges and ways to quickly “bond out” a loved one.

What criteria are used to set Bond amount in serious criminal cases?

  • When criminal charges are more serious or require a more in-depth review of the circumstances, judicial officers in Georgia consider the following:
    • the likelihood that the individual will commit felonies pending trial
    • whether the individual is a flight risk or whether the individual has ties to the community
    • concerns about witness intimidation and
    • the safety of the community if the individual was released.
  • To ensure the safety of witnesses and the community, Courts are permitted to impose additional conditions of bond like stay away from the incident location, the victim, etc.

What is the Georgia First Offender Act?

  • Under the Georgia First Offender Act, a defendant, at the time of entering a guilty or Nolo plea, can request that the judge sentence him or her under the First Offender Act.
  • If the judge agrees to allow First Offender, then after the defendant completes the terms and conditions of the sentence (including jail time under certain circumstances, the defendant is deemed to not have a criminal conviction.
  • Only certain crimes qualify for First Offender status so contact an experienced First Offender attorney to learn about the opportunity to keep a conviction off your record.
  • Also, First Offender is only available to an individual once (twice, if the individual uses conditional discharge for a drug offense).

What are the benefits of the Georgia First Offender Act?

  • The primary benefit of the First Offender Act in Georgia is that the defendant can honestly tell employers and others that they have not been convicted of the crime.
  • First Offender sentences may or may not involve jail time. Even when a First Offender sentence is successfully completed, it DOES NOT mean that the offense is automatically expunged and removed from the person’s record.
  • Upon the successful completion of First Offender, consult an experienced attorney to make sure that the prosecutor properly certifies the completion of First Offender and sends it to the Georgia Criminal Information Center.
  • Even though there will be conviction after the successful completion of a First Offender sentence, please know that law enforcement and prosecutors will still have access to Georgia First Offenders Act information and it can be used in any future proceedings.
  • Additionally, the record may be available through other sources such as records at the courthouse, criminal justice agency website and third party website or companies that sell this type of information.

Are there are downsides to the Georgia First Offender Act?

  • Yes. The downside of the Georgia First Offender Act is that any violation of the terms and conditions of the sentence can result in a re-sentencing of the defendant up to the maximum sentence.
  • This is crucial to understand before agreeing to take on a First Offender sentence. It is a double-edged sword of sorts.

What is the difference between a felony and a misdemeanor in Georgia?

  • A misdemeanor is a criminal charge punishable by less than twelve months imprisonment and a $1,000 fine.
  • An aggravated misdemeanor is generally punishable by less than a year in jail and no greater than a $5,000 fine.
  • A felony is a criminal charge punishable by more than one year of incarceration and potential fines greater than $1,000.

What is the difference between jail and prison in Georgia?

  • Jails are locally-operated facilities that hold inmates who are awaiting trial (and have not been released on bond), inmates who are awaiting sentencing, and individuals who are serving a jail sentence that is less than twelve months long.
  • Prisons are long-term facilities run by the Georgia Department of Corrections or the federal government where inmates are serving sentences that are longer than one year. 

What is are the differences between probation and parole?

  • Probation is a court’s alternative to imposing a jail sentence.
    • Probation is ordered when the circumstances and seriousness of the crime suggest that the person charge is not a threat to society and that incarceration is not an appropriate punishment.
    • The probationer may freely live in the community, but must abide by certain conditions of probation for a period of time specified by the court and report regularly (often, monthly) to an appointed probation officer.
    • Conditions of probation vary case to case and jurisdiction to jurisdiction. Some of the conditions imposed may include living where directed, participating in rehabilitation programs, submitting to drug and alcohol tests and maintaining employment.
    • Said appointed probation officer will monitor the probationers and their progress.
  • Parole is granted to certain prison inmates after they have served a portion of their prison sentence.
    • While on parole, parolees must abide by certain terms and conditions that are quite similar to probation.
    • These terms include living within state or county lines, meeting regularly with a parole officer, submitting to drug and alcohol tests, and providing proof of residence and employment.
    • Because parole is a privilege, he faces reimprisonment if he fails to report or otherwise does not comply with the terms of parole.

How does the Probation process work?

  • When a person receives a probationary sentence, they are assigned to a probation officer, who will monitor their progress as they complete their sentence.
  • Probationers are often required to report on a monthly basis to their probation officers.
  • And, depending on the terms of the probationers’ sentence, the probationer may have to pay fees and fines, complete court-ordered classes, perform community service, and pass drug tests at each report/visit.

How can Parole be violated?

  • A probationer can violate probation a few different ways. Here are the ways:
    • A technical violation is when you are alleged to have violated a technical condition of your probation, such as paying restitution, fines or court costs, completing community service, meeting with your probation officer, not leaving the jurisdiction, etc.
    • A special condition violation is when you are alleged to have violated a special condition of probation, such as having no contact with the victim, earning a GED, etc.  Any condition of probation can be deemed a special condition of probation.
    • A substantive violation occurs when you are arrested because you have committed a new criminal offense while on probation.

Are there hearings to determine if parole is violated?

  • Yes. If and when a probation officer believes their probationer has violated probation, they can allege said violation to the court and petition for the issuance of an arrest warrant.
  • An arrest warrant for a violation of probation (VOP) usually has a "no bond" provision, meaning that unless you retain an attorney to resolve your case quickly or obtain a bond, you may be sitting in jail for weeks or months until your probation violation case is heard in court and/or resolved.
  • At a hearing for a probation violation, there is no right to a jury trial and the burden of proof is merely a preponderance of the evidence (as opposed to the "proof beyond a reasonable doubt" standard required for a criminal jury trial).
  • As a result, prosecutors may have a much easier time winning a violation of probation hearing, as their standard of proof is so low.
  • If the court determines a probationer has violated terms of their probation, the court has a number of sentencing options depending on the nature of the violation and the length of the probationary sentence.

What are some possible penalties for violating parole?

  • Here are some of the punishments a court can impose upon the finding of a probation violation:
    • Incarceration for some, if not all, of the remaining probationary sentence.
    • Additional months on probation.
    • Imposition of additional community service, fines, classes, etc.
  • It should be noted that the court is required to review each allegation of violation on a case-by-case basis to determine under the particular facts and circumstances of the case, whether a particular violation is willful and substantial by the greater weight of the evidence.
  • That is the standard: whether a violation of probation was willful, deliberate and substantial. To ensure the best result possible, it would be best to consult with an experienced attorney to discuss possible defenses to alleged probation violations.
  • At the Kaufman Law Firm, we handle probation violations for misdemeanors and felonies in counties throughout the State of Georgia.

What is an Alford plea?

  • An Alford Plea is type of guilty plea whereby a defendant proclaims he is innocent of the crime but admits that the prosecution has enough evidence to prove that he is guilty beyond a reasonable doubt.

What does it mean to plead NOLO in Georgia?

  • Pleading “nolo contendere” or “No Contest” is essentially pleading guilty with some possible benefits, especially in cases involving Marijuana Possession < 1 ounce and traffic infractions. It can be used once every 5 years. A “nolo plea” is not an admission of guilt and therefore, cannot be used in a civil case against the defendant as an admission.
  • A “nolo” plea may save a person’s license in certain situations and prevent points from being assessed.
  • A  “nolo” plea may also make it harder for car insurance companies to become aware of the infraction.
  • A “nolo” plea will not prevent CDL (commercial driver’s license) disqualification. DDS may also choose not to honor the “nolo” plea and the infraction will often still appear on your driving record.

What is a Criminal Bond?

  • A criminal bond is a financial guarantee to ensure the appearance of an individual charged with a crime until the case is dismissed or otherwise disposed of.
  • If an individual is released on bond and does not appear in court, their bond will be forfeited and a warrant will be issued for their arrest. Additionally, if an individual is released on bond through a bonding company and does not appear in court, that individual may also face felony “bail jumping” charges.  
  • Historically, the purpose of bond was to allow individuals accused of crimes the opportunity to carry on with their lives while they await resolution of their cases by securing their appearance in court with “collateral”.  
  • It was never meant to be a pretrial punishment, considering the law deems accused persons innocent until proven guilty. Depending on the nature of the criminal charges, an individual may or may not, by law, have a right to bond.

How are Bond amounts set?

  • Judicial officers have sole discretion to set bond amounts.
  • For less serious offenses, jurisdictions often have a set “bail schedule” at the jail that provides bail amounts for common charges and ways to quickly “bond out” a loved one.

What criteria are used to set Bond amount in serious criminal cases?

  • When criminal charges are more serious or require a more in-depth review of the circumstances, judicial officers in Georgia consider the following:
    • the likelihood that the individual will commit felonies pending trial
    • whether the individual is a flight risk or whether the individual has ties to the community
    • concerns about witness intimidation and
    • the safety of the community if the individual was released.
  • To ensure the safety of witnesses and the community, Courts are permitted to impose additional conditions of bond like stay away from the incident location, the victim, etc.

What is the Georgia First Offender Act?

  • Under the Georgia First Offender Act, a defendant, at the time of entering a guilty or Nolo plea, can request that the judge sentence him or her under the First Offender Act.
  • If the judge agrees to allow First Offender, then after the defendant completes the terms and conditions of the sentence (including jail time under certain circumstances, the defendant is deemed to not have a criminal conviction.
  • Only certain crimes qualify for First Offender status so contact an experienced First Offender attorney to learn about the opportunity to keep a conviction off your record.
  • Also, First Offender is only available to an individual once (twice, if the individual uses conditional discharge for a drug offense).

What are the benefits of the Georgia First Offender Act?

  • The primary benefit of the First Offender Act in Georgia is that the defendant can honestly tell employers and others that they have not been convicted of the crime.
  • First Offender sentences may or may not involve jail time. Even when a First Offender sentence is successfully completed, it DOES NOT mean that the offense is automatically expunged and removed from the person’s record.
  • Upon the successful completion of First Offender, consult an experienced attorney to make sure that the prosecutor properly certifies the completion of First Offender and sends it to the Georgia Criminal Information Center.
  • Even though there will be conviction after the successful completion of a First Offender sentence, please know that law enforcement and prosecutors will still have access to Georgia First Offenders Act information and it can be used in any future proceedings.
  • Additionally, the record may be available through other sources such as records at the courthouse, criminal justice agency website and third party website or companies that sell this type of information

Are there are downsides to the Georgia First Offender Act?

  • Yes. The downside of the Georgia First Offender Act is that any violation of the terms and conditions of the sentence can result in a re-sentencing of the defendant up to the maximum sentence.
  • This is crucial to understand before agreeing to take on a First Offender sentence. It is a double-edged sword of sorts.

 

Do I have to testify as a witness?

  • Short answer: Most likely, no.  
  • Reasoning: Pursuant to OCGA 24-5-505, no party or witness shall be required to testify as to any matter which may incriminate or tend to incriminate such party or witness or which shall tend to bring infamy, disgrace, or public contempt upon such party or witness or any member of such witness’s family.

 

Do I have to testify at my trial?

  • Short answer: No.
  • Reasoning: No person charged with a crime shall be compellable to produce evidence, including testimony. This is because the burden is on the State to prove beyond a reasonable doubt that the person committed the crime

Should I testify at trial?

  • Whether to testify at trial is a crucial decision that should be made with help and guidance from experienced attorney. It can be very beneficial in some cases and devastating in others. What I can say is this; people, on the whole, know when they are being lied to, especially in a courtroom setting where witnesses are subject to rigorous cross-examination so if the story isn’t the truth, it will likely come out. PLEASE do not make this decision without consulting an attorney.