HomeMy WebLinkAboutORDINANCE NO. 07-04-20ORDINANCE NO. 07-04-20
vs� STATE OF GEORGIA
COUNTY OF FULTON
AN ORDINANCE TO ADOPT UNIFORM RULES OF COURT FOR THE
MUNICIPAL COURT OF MILTON
BE IT ORDAINED by the City Council of the City of Milton, GA while in regular session on April
12, 2007 at 7:00 p.m. as follows:
SECTION 1. That the Uniform Rules of Court, Code of Conduct for Non -Judicial Court
Employees, and Indigent Defense Plan is hereby adopted and approved and is attached hereto
as if fully set forth herein; and
SECTION 2. That this Ordinance shall become effective upon its adoption.
ORDAINED this the 12th day of April, 2007
Attest:
tte Marchiafava, City Cler
(Seal)
am
Joe Lockwood, Mw,,6rU
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UNIFORM RULES OF THE MILTON MUNICIPAL COURT
RULE 1. DEFINITIONS
1.1 Attorney. The word "attorney" as used in these rules refers to any person admitted to
practice in the courts of Georgia, and to any person who is permitted, in accordance with law, to
represent a party in an action pending in a court of the State of Georgia, and to any person
proceeding pro se in an action pending in a court of this state. The word "attorney" is
synonymous with "counsel" in these rules.
1.2 Judge. The word "judge" as used in these rules refers to the judge duly appointed by
the Mayor and Council of the City of Milton, or the associate judge, also duly appointed, and
authorized to serve as judge of the Municipal Court of Milton, or any judge sitting pro hac vice.
1.3 Clerk. The word "clerk" as used in the rules refers to the clerk of the Milton
Municipal Court and to staff serving as deputy clerks under the direction of the clerk of the court.
1.4 Court. The word "court" as used in the rules refers to the Municipal Court of the City
of Milton.
1.5 Solicitor. The word "solicitor" as used in the rules refers to the prosecutor duly
appointed by the Mayor and Council of the City of Milton, or an associate of the prosecutor who
OWN may be acting in his absence.
RULE 2. ATTORNEYS - APPEARANCE, WITHDRA WL & DUTIES
2.1 Prohibition on Ex Parte Communications. Except as authorized by law or by rule,
judges shall neither initiate not consider ex parte communications by interested parties or their
attorneys concerning a pending or impending proceeding.
2.2 Entry of Appearance and Pleadings. No attorney shall appear in that capacity
before the court until the attorney has entered an appearance by filing a signed entry of
appearance form or by filing a signed pleading in a pending action. An entry of appearance
and all pleadings shall state:
1) The style and number of the case;
2) The identity of the party for whom the appearance is made; and
3) The name, assigned state bar number, and current office address and telephone number
of the attorney.
The filing of any pleading shall contain the information required by this paragraph. The
filing of a signed entry of appearance alone shall not be a substitute for the filing of any other
required pleading. The filing of the citation or accusation shall constitute an entry of appearance
by the solicitor.
6NOW
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Any attorney who has been admitted to practice in this state but who fails to maintain
active membership in good standing in the State Bar of Georgia and who makes or files any
appearance or pleading in court while not in good standing shall be subject to the contempt
powers of the court.
Within 48 hours after being retained, an attorney shall mail to the court and solicitor or
file with the court the entry of appearance in the pending matter. Failure to timely file shall not
prohibit the appearance and representation by said counsel.
2.3 Withdrawal. An attorney appearing of record in any case pending before the court
who wishes to withdraw as counsel, shall submit a written request to the judge of the court for an
order of court permitting such withdrawal. Such request shall state that the attorney has given
due written notice to the affected client respecting such intention to withdraw 10 days prior to
submitting the request to the court or that such withdrawal is with the client's consent. Such
request will be granted unless in the judge's discretion to do so would delay the arraignment or
trial or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client.
The attorney requesting an order permitting withdrawal shall give notice to the solicitor and shall
file with the clerk and serve upon the client, personally or at the client's last known address, a
notice which shall contain at least the following information:
1) That the attorney wishes to withdraw;
2) That the court retains jurisdiction of the case;
3) That the client has the burden of keeping the court informed respecting where notices
or other papers may be served;
4) That the client has the obligation to prepare for trial or hire other counsel to
prepare for trial when the trial date has been set;
5) That if the client fails or refuses to meet these burdens, the client may suffer
adverse consequences, including bond forfeiture and arrest;
6) The dates of any scheduled proceedings, including trial, and that holding of
such proceedings will not be affected by the withdrawal of counsel;
7) That service of notices may be made upon the client at the client's last known
address.
"Unless the withdrawal is with the client's consent, the client has the right to object within 10
days of the date of the notice.
2.4 Special Admission of Attorneys From Other States. When permitted by law or
rules, any attorney admitted to practice in the courts of record of another state who desires to be
specifically admitted to practice in a specific case pending in the court shall make application for
such special admission to the judge. Such application shall contain the following information:
1) Name, current address and telephone number of the attorney making such application;
2) A listing of the state or states in which such attorney is duly licensed to practice;
3) That the attorney seeking admission has associated in the case an attorney who is a
resident of Georgia, and who is duly and regularly admitted to practice in the courts of
this state; and,
4) The name and current office address and telephone number maintained by the
associated attorney.
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pow Service may be had upon the associated attorney in all matters connected with said action
with the same effect as though personally made upon the out of state attorney specially admitted
WM to practice in the case. The out of state attorney so admitted to practice in such case shall be
subject to the orders of the court and amenable to disciplinary action as though that attorney were
regularly admitted to practice in the State of Georgia.
2.5 To Attend and Remain. Subject to the provisions of Rule 3, attorneys having
matters on calendars, or who are otherwise directed to do so, unless excused by the court, are
required to be in court at the call of the matter and to remain until otherwise directed by the
court. Should the judge excuse counsel from the courtroom before the matter is concluded such
attorney(s) shall return as directed. Failure of any attorney in this respect shall subject that
attorney to the contempt powers of the court.
RULE 3. LEAVES OF ABSENCE
3.1 Leaves for Thirty (30) Calendar Days or Less. An attorney of record shall be
entitled to a leave of absence for thirty days or less from court appearance in pending matters by
submitting to the clerk at least thirty days prior to the effective date for the proposed leave, a
written notice containing:
1) A list of the cases to be protected, including case numbers;
2) The reason for the leave of absence; and
3) The duration of the requested leave of absence.
him Unless the solicitor files a written objection within 10 days, or the court responds denying the
leave, such leave will stand granted without entry of an order. If objection is filed, the court will
conduct a conference with all counsel to determine whether the court will, by order, grant the
requested leave of absence.
The clerk will retain leave of absence notices in the affected case file.
3.2 Leaves for More Than Thirty (30) Calendar Days. Application for leaves of
absence for more than thirty days must be in writing, filed with the clerk of the court, and served
upon the solicitor. The solicitor must consent to or object to the request before granting of leave
by the judge. The written application must contain all information required for 3.1 above.
3.3 Granted Leave. A 3.1 or 3.2 leave when granted shall relieve any attorney from all
trials, hearings, and other legal proceedings in that matter. This rule shall not extend any deadline
set by law or the court.
3.4 Denial of Application for Leave. Any application for leave not filed in conformance
with this rule will be denied. The clerk shall provide notice of any denial of leave to the
requesting attorney.
r-
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RULE 4. CONFLICTS OF SCHEDULE WITH OTHER COURTS
4.1 Method of Resolution. An attorney shall not be deemed to have a conflict unless:
1) The attorney is lead counsel in two or more of the actions affected; and,
2) The attorney certifies that the matters cannot be adequately handled, and the client's
interest adequately protected, by other counsel for the party or by other attorneys in
lead counsel's firm; certifies that in spite of compliance with this rule, the attorney has
been unable to resolve these conflicts; and certifies in the notice a proposed resolution
by list of such cases in the order of priority specified by this rule.
When an attorney is scheduled for a day certain by trial calendar, special setting or court
order to appear in two or more courts (trial or appellate; municipal, state, superior, or federal),
the attorney shall give prompt written notice as specified above of the conflict to opposing
counsel, to the clerk of each court and to the judge before whom each action is set for hearing.
The written notice shall contain the attorney's proposed resolution of the appearance conflicts in
accordance with the priorities established by rule of the Superior Courts of the State of Georgia,
and shall set forth the order of cases to be tried with a listing of the date and data required by
Uniform Superior Court Rules as to each case arranged in the order in which the cases should
prevail under Uniform Superior Court Rules. In the absence of objection from opposing
counselor the courts affected, the proposed order of conflict resolution shall stand as offered.
Should a judge wish to change the order of cases to be tried, such notice shall be given promptly
after agreement is reached between the affected judges. Attorneys confronted by such conflicts
are expected to give written notice such that it will be received at least seven (7) days prior to the
date of conflict. Absent agreement, conflicts shall be promptly resolved by the judge or the clerk
of the courts in accordance with the order of priorities set forth in the Uniform Superior Court
Rules.
4.2 Attorneys Serving as Part -Time Judges. The judge shall give prompt consideration
to resolving scheduling conflicts resulting from an attorney's serving as a part-time judge of a
court of record.
RULE 5. JURISDICTION AND TRANSFER OF CASES TO STATE COURT.
5.1 Jurisdiction. This court shall have jurisdiction over misdemeanor violations of the
uniform traffic laws of the State of Georgia and over misdemeanor violations of the code of
ordinances for the City of Milton, which occur within the city limits of Milton. This court shall
also have jurisdiction to hear cases involving misdemeanor violations of state laws in which the
state has granted jurisdiction to the municipal courts of this state, which occur within the city
limits of Milton.
5.2 Transfer of Cases to State Court. If it is the determination of the court that a charge
is not within the jurisdiction of the court, or if a defendant, an attorney of record for a defendant,
or the solicitor requests that a jury trial be provided on a case, the case may be bound over to the oft
State Court of Fulton County for trial. The court may also decide sua sponte that a case be bound
over to State Court for trial. Any request for the binding over of a case to State Court must be ftwm
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written, filed with the clerk, and formally presented to the judge, on the record at arraignment, by
the solicitor, the defendant or, when there is one, the attorney of record on the case. If the request
is granted by the judge, the clerk will transfer the file to the State Court of Fulton County along
with any bond posted in the case.
RULE 6. LIMITATION OF ACCESS TO COURT FILES
All court records of disposed cases are public and are to be available for public inspection
unless public access is limited by law or by the order of the judge. The judge may order
limitation of access to files, as authorized by OCGA 17-8-6 (amended), or if motion is made to
the court with compelling reasons why harm to the privacy of an individual involved would
clearly outweigh the public interest in the case.
RULE 7. NEWS COVERAGE OF JUDICIAL PROCEEDINGS
Unless otherwise ordered by the judge after appropriate hearing (conducted after notice to all
parties and counsel of record) and findings, representatives of the print and electronic public
media may be present at and unobtrusively make written notes and sketches pertaining to any
judicial proceedings in the court. However, due to the distractive nature of electronic or
photographic equipment, representatives of the public media utilizing such equipment are subject
to the following restrictions and conditions:
(A) Persons desiring to broadcast/record/photograph official court proceedings must file a
*�*■ timely written request with the court prior to the hearing or trial, specifying the particular
case or proceedings for which such coverage is intended; the type of equipment to be
r.. used in the courtroom; the trial, hearing or proceeding to be covered; and the person
responsible for installation and operation of such equipment.
(B) Approval of the judge to broadcast/record/photograph a proceeding, if granted, shall be
granted without partiality or preference to any person, news agency, or type of electronic
or photographic coverage, who agrees to abide by and conform to these rules, up to the
capacity of the space designated therefore in the courtroom. Violation of these rules will
be grounds for a reporter/technician to be removed or excluded from the courtroom and
held in contempt.
(C) The judge may exercise discretion and require pooled coverage, which would allow only
one still photographer, one television camera and attendant, and one radio or tape
recorder outlet and attendant. Photographers, electronic reporters and technicians shall be
expected to arrange among themselves pooled coverage if so directed by the judge and to
present the judge with a schedule and description of the pooled coverage. If the covering
persons cannot agree on such a schedule or arrangement, the schedule and arrangements
for pooled coverage may be designated at the judge's discretion,
(D) The positioning and removal of cameras and electronic devices shall be done quietly
and, if possible, before or after the court session or during recesses; in no event shall such
disturb the proceedings of the court, In every such case, equipment should be in place
and ready to operate before the time court is scheduled to be called to order.
(E) Overhead lights in the courtroom shall be switched on and off only by court personnel.
No other lights, flashbulbs, flashes or sudden light changes may be used unless the judge
approves beforehand,
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(F) No adjustment of central audio system shall be made except by persons authorized by the
judge. Audio recordings of the court proceedings will be from one source, normally by
connection to the court's central audio system. Upon prior approval of the court, other
microphones may be added in an unobtrusive manner.
(G) All television cameras, still cameras and tape recorders shall be assigned to a specific
portion of the public area of the courtroom or specially designed access areas, and such
equipment will not be permitted to be removed or relocated during the court proceedings.
(H) Still cameras must have quiet functioning shutters and advancers. Movie and television
cameras and broadcasting and recording devices must be quiet running. If any equipment
is determined by the judge to be of such noise as to be distractive to the court
proceedings, then such equipment can be excluded from the courtroom by the judge.
(I) Reporters, photographers, and technicians must have and produce upon request of court
officials credentials identifying them and the media company for which they work.
(J) Court proceedings shall not be interrupted by a reporter or technician with a technical or
equipment problem.
(K) Reporters, photographers, and technicians should do everything possible to avoid
attracting attention to themselves. Reporters, photographers, and technicians will be
accorded full right of access to court proceedings for obtaining public information within
the requirements of due process of law, so long as it is done without detracting from the
dignity and decorum of the court.
(L) Other than as permitted by these rules and guidelines, there will be no photographing,
radio or television broadcasting, including videotaping pertaining to any judicial
proceedings within the courtroom, whether or not the court is actually in session.
(M) No interviews pertaining to a particular judicial proceeding will be conducted in the
courtroom except with the permission of the judge. mom
(N) A request for installation and use of electronic recording, transmission, videotaping or
motion picture or still photography of any judicial proceeding shall be evaluated pursuant
to the standards set forth in OCOA 15-1-10.1.
RULE 8. RECUSAL
8.1 Motions. All motions to recuse or disqualify the presiding judge, with the exception
of the judge's own motion when he so chooses to recuse himself, shall be timely filed in writing
and all evidence thereon shall be presented by accompanying affidavit(s), which shall fully assert
the facts upon which the motion is founded. Filing and presentation to the judge shall be not later
than five (5) days after the affiant first learned of the alleged grounds for disqualification, and
not later than ten (10) days prior to the hearing or trial which is the subject of recusal or
disqualification, unless good cause be shown for failure to meet such time requirements. In no
event shall the motion be allowed to delay the trial or proceeding.
8.2 Affidavit. The affidavit shall clearly state the facts and reasons for the belief that bias
or prejudice exists, being definite and specific as to time, place, persons and circumstances of
extra judicial conduct or statements, which demonstrate either bias in favor of any adverse party, Now
or prejudice toward the moving party in particular, or a systematic pattern of prejudicial conduct
toward the persons similarly situated to the moving party, which would influence the judge and
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impede or prevent impartiality in that action. Allegations consisting of bare conclusions and
opinions shall not be legally sufficient to support the motion or warrant further proceedings.
8.3 Procedure Upon a Motion for Disqualification. Any motion for disqualification of
the presiding judge shall be assigned for hearing to another judge. If the motion is sustained, the
selection of another judge to hear the case shall be made. Otherwise the case may be bound over
to Fulton County State Court at the discretion of the solicitor and the hearing judge.
8.4 Voluntary Recusal. If the judge, either on the motion of the defendant or the judge's
own motion, voluntarily disqualifies, the associate judge or another judge shall be assigned to
hear the case. A voluntary recusal shall not be construed as either an admission or denial to any
allegations that have been set out in the motion.
RULE 9. POST -ARREST PROCEEDINGS
9.1 Bonds and First Appearances. Immediately following any arrest but not later than
48 hours, unless the accused has made bond in the meantime, the arresting officer or the
detention officer having custody of the accused shall present the accused in person before the
judge on-call for first appearance.
At the first appearance, the judge shall:
1) Inform the accused of the charges;
2) Inform the accused of the right to remain silent, that any statement made may
be used against the accused, and of the right to the presence and advice of an
attorney;
3) Make a fair and reliable determination of the probable cause for the arrest; and
4) Inform the accused of the amount of bail required on the charges, and the
methods that may be used to post a bond.
RULE 10. ARRAIGNMENT
10.1 Arraignment Calendar. Notice of the arraignment date and time shall be given to
defendants. It will be the responsibility of the clerk for collection and entry of citations and
summons to the arraignment calendar. The clerk will keep the schedule of arraignment dates and
notify the police department of dates and changes to dates for assignment of cases.
10.2 Call for Arraignment. At the call of the calendar on arraignment dates the court
will advise the defendant of the charge(s) against him/her and inquire whether the accused is
represented by counsel.
Unless the case is continued for good cause, the accused or the attorney of record shall
answer whether the accused pleads guilty, not guilty, or wishes to speak to the solicitor for the
purpose of negotiating a plea pursuant to section 12.3 of these rules. Those who plead not guilty
will be given the choice of a bench trial to be set in front of the judge on a trial calendar, or if
eligible, have the case bound over to State Court in Fulton County for a jury trial.
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The judge, at his discretion, may specially set a case for a trial.
RULE 11. TRIALS
11.1 Trial Calendar. Trial dates shall be set periodically as necessary determined by the
number of trial requests. Continuance notices for trial dates shall be issued by the clerk on
arraignment dates, in open court, and shall be signed by the defendant or attorney of record, and
the clerk. The signed continuance will constitute notice of trial date.
11.2 Trial Procedure. The court will follow the conduct of proceedings for trials laid out
in Title 17, Chapter 8, Article 3 of the Official Code of Georgia (amended). The court will also
follow the conduct and argument of counsel as laid out in Title 17, Chapter 8, Article 4 of the
Official Code of Georgia (amended).
RULE 12. PLEADING BY DEFENDANT
12.1 Alternatives. A defendant may plead guilty, not guilty, or in the discretion of the
judge, nolo contendere. A plea of guilty or nolo contendere should be received only from the
defendant personally in open court. The only exception will be at the judge's discretion to accept
a plea from the attorney of record in absentia.
A defendant may plead nolo contendere only with the consent of the judge. Such a plea
should be accepted by the judge only after due consideration of the interest of the public in the
effective administration of justice. Procedurally, a plea of nolo contendere should be handled
under these rules in a manner similar to a plea of guilty.
12.2 Aid of Counsel - Time for deliberation. A defendant shall not be called upon to
plead before having an opportunity to retain counsel. A defendant with counsel shall not be
required to enter a plea if counsel makes a reasonable request for additional time to represent the
defendant's interest, or if the defendant has not had a reasonable time to consult with counsel.
A defendant without counsel should not be called upon to plead to any offense without
having had a reasonable time to consider this decision. When a defendant without counsel
tenders a plea of guilty or nolo contendere to an offense, the court should not accept the plea
unless it is reaffirmed by the defendant after a reasonable time for deliberation, following the
advice from the court required in section 12.8.
12.3 Propriety of Plea Discussions and Plea Agreements. In cases in which it appears
that the interests of the public in the effective administration of criminal justice would thereby be
served, the solicitor may engage in plea discussions for the purpose of reaching a plea
agreement. The solicitor should engage in plea discussions or reach a plea agreement with the
defendant only through defense counsel, except when the defendant does not desire and has not
retained counsel.
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The solicitor, in reaching a plea agreement, may agree to one or more of the following, as
w•. dictated by circumstances of the individual case:
1) To make or not to oppose favorable recommendations as to the sentence which
should be imposed if the defendant enters a plea of guilty or nolo contendere;
2) To seek or not to oppose dismissal of the offense charged if the defendant enters a plea
of guilty or nolo contendere to another offense reasonably related to the defendant's
conduct; or,
3) To seek or not to oppose dismissal of other charges or potential charges against the
defendant if the defendant enters a plea of guilty or nolo contendere.
12.4 Relationship Between Defense Counsel and Client. Defense counsel should
conclude a plea agreement only with the consent of the defendant, and should ensure that the
decision to enter or not enter a plea of guilty or nolo contendere is ultimately made by the
defendant.
To aid the defendant in reaching a decision, defense counsel, after appropriate
investigation, should advise the defendant of the alternatives available and of considerations
deemed important by him in reaching a decision.
12.5 Responsibilities of the Judge. The judge should not participate in plea discussions.
If a tentative agreement has been reached, upon request of the parties, the judge may permit the
parties to disclose the tentative agreement and the reasons therefore in advance of the time for
mom the tendering of the plea. The judge may then indicate to the solicitor and defense counsel
whether the judge will likely concur in the proposed disposition if the information developed in
the plea hearing or presented in the pre -sentence report is consistent with the representations
made by the parties. If the judge concurs but the final disposition differs from that contemplated
by the plea agreement, then the judge shall state for the record what information in the pre-
sentence report or hearing contributed to the decision not to sentence in accordance with the plea
agreement.
When a plea of guilty or nolo contendere is tendered or received as a result of a plea
agreement, the judge should give the agreement due consideration, but notwithstanding its
existence, must reach an independent decision on whether to grant charge or sentence leniency
under the principles set forth in section 12.6 of these rules.
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12.6 Consideration of Plea in Final Disposition. It is proper for the judge to grant
charge and sentence leniency to defendants who enter pleas of guilty or nolo contendere where
the interests of the public in the effective administration of criminal justice are thereby served.
Among the considerations which are appropriate in determining this question are:
1) That the defendant by entering a plea has aided in ensuring the prompt and certain
application of correctional measures;
2) That the defendant has acknowledged guilt and shown a willingness to assume
responsibility for conduct;
3) That the leniency will make possible alternative correctional measures which are
better adapted to achieving rehabilitative, protective, deterrent or other purposes of
correctional treatment, or will prevent undue harm to the defendant from the form of
conviction;
4) That the defendant has made public trial unnecessary when there are good
reasons for not having the case dealt with in a public trial;
5) That the defendant has given or offered cooperation when such cooperation has
resulted or may result in the successful prosecution of other offenders engaged
in equally serious or more serious criminal conduct;
6) That the defendant by entering a plea has aided in avoiding delay (including delay due
to crowded dockets) in the disposition of other cases and thereby has increased the
probability of prompt and certain application of correctional measures to other
offenders.
The judge should not impose upon a defendant any sentence in excess of that which
would be justified by any of the rehabilitative, protective, deterrent or other purposes of the
criminal law merely because the defendant has chosen to require the prosecution to prove the
defendant's guilt at trial rather than to enter a plea of guilty or nolo contendere.
12.7 Determining Voluntariness of Plea. The judge shall not accept a plea of guilty or
nolo contendere without first determining, on the record, that the plea is voluntary. By inquiry of
the prosecuting attorney and defense counsel, the judge should determine whether the tendered
plea is the result of prior plea discussions and a plea agreement, and if it is, what agreement has
been reached. If the prosecuting attorney has agreed to seek charge or sentence leniency which
must be approved by the judge, the judge must advise the defendant personally that the
recommendations of the prosecuting attorney are not binding on the judge. The judge should
then address the defendant personally and determine whether any other promises or any force or
threats were used to obtain the plea.
12.8 Defendant to be Informed. The judged should not accept a plea of guilty or nolo
contendere from a defendant without first:
1) Determining on the record that the defendant understands the nature of the charge(s);
2) Informing the defendant on the record that by entering a plea of guilty or nolo
contendere one waives:
a) the right to trial by jury;
b) the presumption of innocence; PMW
c) the right to confront witnesses against oneself;
d) the right to subpoena witnesses; MM"
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e) the right to testify and to offer other evidence;
•s� f) the right to assistance of counsel during trial;
g) the right not to incriminate oneself; and
3) Informing the defendant on the record:
a) of the terms of any negotiated plea;
b) the maximum possible sentence on the charge(s), including that possible from
consecutive sentences;
c) of the mandatory minimum sentence, if any on the charge(s). this
information may be developed by questions from the judge, the solicitor or
the defense attorney, or a combination of any of these.
12.9 Determining accuracy of Plea. Notwithstanding the acceptance of a plea of guilty,
judgment should not be entered upon such plea without such inquiry on the record as may satisfy
the judge that there is a factual basis for the plea.
12.10 Stating Intention to Reject the Plea Agreement. If the court intends to reject the
plea agreement, the judge shall, on the record, inform the defendant personally that 1) the court
is not bound by any plea agreement; 2) the court intends to reject the plea agreement presently
before it; 3) the disposition of the present case may be less favorable to the defendant than that
contemplated by the plea agreement; and 4) that the defendant may then withdraw his or her
guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced.
•p� 12.11 Record of Proceedings. A verbatim record of the proceedings at which a
defendant enters a plea of guilty or nolo contendere shall be made and preserved. The record
&BMW should include:
1) the inquiry into the voluntariness of the plea (as required in section 12.7);
2) the advice to the defendant (as required in section 12.8);
3) the inquiry into the accuracy of the pleas (as required in section 12.9); and, if
applicable,
4) the notice to the defendant that the court intends to reject the plea agreement and the
defendant's right to withdraw the guilty plea before sentence is pronounced.
12.12 Plea Withdrawal. After sentence is pronounced, the judge should allow the
defendant to withdraw a plea of guilty or nolo contendere whenever the defendant, upon a timely
motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.
In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a
defendant may not withdraw a plea of guilty or nolo contendere as a matter of right once
sentence has been pronounced by the judge.
RULE 13. APPEALS
All appeals of trial cases must be made by certiorari to the Superior Court of Fulton
.•-• County in the manner set forth in Title 5 Chapter 4 of the Official Code of Georgia, amended.
bow All certiorari appeals must be applied for no more than 30 days from the date of disposition.
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RULE 14. POST -SENTENCE INFORMATION
The clerk shall forward all pertinent disposition information that is required by law to the
Department of Motor Vehicle Safety.
All disposition information on reported arrests shall be forwarded by the clerk to the
Georgia Crime Information Center after disposition of the charges.
RULE 15. FILING AND MOTIONS
15.1 Preparation of Documents. To the extent practical, all materials presented for
filing in this court shall be typed, legibly written or printed in black ink suitable for reproduction,
on opaque white paper measuring 8 1\2" X 11" of a good quality, grade and weight. Manuscript
covers and backings shall be omitted wherever practical.
15.2 Timely Filing of Motions. All motions should be filed with the clerk and copied to
the solicitor no less than 10 days before scheduled trial dates.
15.3 Location of Originals. All original documents, motions and pleadings shall remain
in the custody of the clerk except as provided by the judge, these rules, or as otherwise provided
by law.
15.4 Maintenance of Files. All files of court cases shall be maintained by the clerk as
required by the record retention schedules for the State of Georgia.
RULE 16. BONDS AND RECOGNIZANCES
This court shall follow rules and procedure pertaining to bonds, bondsmen, judgments
absolute, and bond forfeitures as set forth in Title 17, Chapter 6 of the Official Code of Georgia,
amended.
* * Any other rules not herein enumerated shall be referred to the Uniform Superior Court Rules
of Georgia. * *
APPENDIX A
Code of Conduct for NonJudicial Court Employees
Introduction
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The holding of public employment in the court system is a public trust justified by the
confidence that the citizenry reposes in the integrity of officers and employees of the judicial
branch. A court employee, faithful to that trust, therefore shall observe high standards of conduct
so that the integrity and independence of the courts may be preserved. Court employees shall
carry out all duties assigned by law and shall put loyalty to the principles embodied in this Code
above loyalty to persons or parties. A court employee shall uphold the Constitution, laws and
legal regulations of the United States, the State of Georgia and the City of Smyrna, and never be
a party to their evasion. A court employee shall abide by the standards set out in this Code and
shall endeavor to expose violations of this Code wherever they may appear to exist.
Scope
1) The Code shall apply to all employees who directly or indirectly affect the court's
operation. A suggested listing of such employees would include: court clerks, docket
clerks, data processing personnel, bailiffs and judicial secretaries, as well as court
managers and their staffs. This list is intended to be illustrative and does not imply that
other employees should be omitted. For example, if janitors in the court building have
contact with the public or have the authority to purchase supplies for the court, then the
Code should apply to these employees as well.
2) This Code is not intended to apply to law clerks, who should be held to a higher standard
of conduct, nor to court reporters, who are bound by the "Code of Professional Conduct
of the National Shorthand Reporters Association".
3) The term "court employee" includes within its scope those court employees who are also
court managers.
4) The term "court clerk" includes within its scope all court employees who have important
supervisory responsibilities. Each jurisdiction must identify the particular court
employees who function as managers within that court system.
Section One: Abuse of Position
A) No employee shall use or attempt to use his or her official position to secure unwarranted
privileges or exemptions for the employee or others.
B) No employee shall accept, solicit, or agree to accept any gift, favor or anything of value based
upon any understanding, either explicit or implicit, that the official actions, decisions or
judgment of any employee would be influenced thereby. Gifts that do not violate this prohibition
against abuse of position are further regulated in Section Three, Subsection B.6.
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C) No employee shall request or accept any fee or compensation, beyond that received by the
employee in his or her official capacity, for advice or assistance given in the course of his or her
public employment.
D) No employee shall discriminate by dispensing special favors to anyone, whether or not for
remuneration, nor shall any employee so act that the employee is unduly affected or appears to
be affected by kinship, rank, position or influence of any party or person.
E) Each employee shall use the resources, property and funds under the employee's official
control judiciously and solely in accordance with prescribed statutory and regulatory procedures.
F) Each employee shall immediately report to the appropriate authority any attempt to induce
him or her to violate any of the standards set out above.
Section Two: Confidentiality
A) No court employee shall disclose to any unauthorized person for any purpose any confidential
information acquired in the course of employment, or acquired through unauthorized disclosure
by another.
B) Confidential information includes, but is not limited to, information on pending cases that is
not already a matter of public record and information concerning the work product of any judge,
law clerk, staff attorney or other employee including, but not limited to, notes, papers,
discussions and memoranda.
C) Confidential information that is available to specific individuals by reason of statute, court
rule or administrative policy shall be provided only by persons authorized to do so.
D) Every court employee shall report confidential information to the appropriate authority when
the employee reasonable believes this information is or may be evidence of a violation of law or
unethical conduct. No court employee shall be disciplined for disclosing such confidential
information to an appropriate authority.
E) The Court Clerk should educate court employees about what information is confidential and,
where appropriate, should designate materials as confidential.
F) Court employees are not precluded from responding to inquiries concerning court procedures,
but a court employee shall not give legal advice. Standard court procedures, such as the method
for filing an appeal or starting a small claims action, should be summarized in writing and made
available to litigants. All media requests for information should be referred to the court employee
designated for that purpose.
G) No court employee shall either initiate or repeat ex parte communications from litigants,
witnesses or attorneys to judges, or any other person.
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H) A former court employee should not disclose confidential information when disclosure by a
current court employee would be a breach of confidentiality.
Section Three: Conflict of Interest
A) Every court employee shall avoid conflicts of interest, as defined below, in the performance
of professional duties. Even though no misuse of office is involved, such a conflict of interest
involving a court employee can seriously undermine the community's confidence and trust in the
court system. Therefore, every court employee is required to exercise diligence in becoming
aware of conflicts of interest, disclosing conflicts to the designated authority and ending them
when they arise.
1) A conflict of interest exists when the court employee's objective ability or independence
of judgment in the performance of his or her job is impaired or may reasonably appear to
be impaired or when the court employee, or the employee's immediate family, as defined
below, or business would derive financial gain as a result of the employee's position
within the court system.
2) No conflict of interest exists if any benefit or detriment accrues to the employee as a
member of a profession, business or group to the same extent as any other member of the
profession, business or group who does not hold a position within the court system
3) For the purposes of this Code, "immediate family" shall include the following, whether
related by marriage, blood or adoption: spouse; dependent children; brother; sister;
parent; grandparent; grandchildren; father-in-law; mother-in-law; sister-in-law; brother-
in-law; son-in-law; daughter-in-law; stepfather; stepmother; stepson; stepdaughter;
stepbrother; stepsister; half-brother; half-sister.
B) Prohibited Activities:
1) No court employee shall enter into any contract with the court system for services,
supplies, equipment, leases or realty, apart from the employment contract relating to the
employee's position, nor use that position to assist any member of his or her immediate
family in securing a contract with the court system in a manner not available to any other
interested party.
2) No court employee shall receive tips or other compensation for representing, or assisting
or consulting with parties engaged in transactions or involved in proceedings with the
court system.
3) No court employee shall participate in any business decision involving a party with
whom either the court employee or any member of the employee's immediate family is
negotiating for future employment.
4) No former court employee shall engage in transactions or represent others in transactions
or proceedings with the court system for one year after termination of employment in any
matter on which the former employee was substantially involved or in any dealings with
"'"" offices or positions that the former employee once held.
5) No court employee shall knowingly employ, advocate or recommend for employment
any member of his or her immediate family.
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6) No court employee shall solicit, accept or agree to accept any gifts, loans, gratuities, .."M
discounts, favors, hospitality or services under circumstances from which it could
reasonably be inferred that a major purpose of the donor is to influence the court 0 0
employee in the performance of official duties.
a) Nothing in this section shall prohibit an employee from accepting a public award
presented in recognition of public service.
b) Nothing in this section shall prohibit an employee from receiving a commercially
reasonable loan made as part of the ordinary transaction of the lender's business.
c) Nothing in this section shall prohibit any person from donating a gift to a group of
employees, e.g. all the employees of an office or unit of the court system,
provided that the value and circumstances of the gift are such that it could not be
reasonably inferred that the gift would influence the employees in the
performance of their official duties or that such influence was the purpose of the
donor, and provided that any employee accepting such a gift promptly report the
gift to the supervisor, who shall be responsible for its proper distribution. Gifts
received with the understanding that they will influence employees' official
actions, decisions or judgments are prohibited as abuse of office in Section One,
Subsection B.
d) Nothing in this section shall prohibit any person or group from donating a gift of
historical or other significant value that is given for the benefit of the court
system, provided that such a gift is received on behalf of the court system by the
appropriate designated authority.
C) To secure conformity to the above standards, every court employee who has authority to enter
into or to approve contracts in the name of the court system shall file a financial disclosure
statement with the appropriate designated authority upon beginning employment in such
position, at termination of employment, and annually while so employed. Such disclosure shall
include all sources of and contractual arrangements for personal income, including investments
and real property, business entity income and business position income held or received by
themselves, their spouses or their dependent children, and shall follow the guidelines established
by the appropriate designated authority.
D) Each full-time court employee's position with the court system must be the employee's
primary employment. Outside employment is permissible only if it complies with all the
following criteria:
1) The outside employment is not with an entity that regularly appears in court or
conducts business with the court system. And it does not require the court employee
to have frequent contact with attorneys who regularly appear in the court system; and
2) The outside employment is capable of being fulfilled outside of normal working
hours and is not incompatible with the performance of the court employee's duties
and responsibilities; and
3) The outside employment does not require the practice of law; and
4) The outside employment does not require or induce the court employee to disclose
confidential information acquired in the course of and by reason of official duties;
and
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5) The outside employment shall not be within the judicial, executive or legislative
branch of government without written consent of both employers; and
6) Where a conflict of interest exists or may reasonably appear to exist or where the
outside employment reflects adversely on the integrity of the court, the employee
shall inform the appropriate designated authority proper to accepting the other
employment.
Section Four: Political Activity
A) Each employee retains the right to vote as the employee chooses and is free to participate
actively in political campaigns during non -working hours. Such activity includes, but is not
limited to, membership and holding office in a political party, campaigning for a candidate in a
partisan election by making speeches and making contributions of time or money to individual
candidates, political parties or other groups engaged in political activity. An employee who
chooses to participate in political activity during off-duty hours shall not use his or her position
or title within the court system in connection with such political activities.
B) With the exception of officers of the court who obtain their position by means of election, no
employee shall be a candidate for or hold partisan elective office. With the same exception, and
employee who declares an intention to run for partisan elective office shall take an unpaid leave
of absence upon the filing of nomination papers. If elected, he or she shall resign. An employee
may be a candidate for non-partisan office without separating from employment, provided that
the employee complies with the requirements of this Code concerning performance of duties,
conflicts of interest, etc.
C) No employee shall engage in any political activity during scheduled work hours, or when
using government vehicles or equipment, or on court property. Political activity includes, but is
not limited to:
1) Displaying campaign literature, badges, stickers, signs or other items of political
advertising on behalf of any party, committee, agency or candidate for political
office;
2) Using official authority or position, directly or indirectly, to influence or attempt to
influence any other employee in the court system to become a member of any
political organization or to take part in any political activity;
3) Soliciting signatures for political candidacy;
4) Soliciting or receiving funds for political purposes.
D) No employee shall discriminate in favor of or against any employee or applicant for
employment on account of political contributions or permitted political activities.
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Section Five: Performance of Duties
A) Every court employee shall endeavor at all times to perform official duties properly and with
diligence. Every court employee shall apply full-time energy to the business and responsibilities
of the employee's office during working hours.
B) Every court employee shall carry out responsibilities as a servant of the public in as courteous
a manner as possible.
C) Every court employee shall maintain or obtain current licenses or certificates as a condition of
employment as required by law or court rule.
D) No court employee shall alter, falsify, destroy, mutilate, backdate or fail to make required
entries on any records within the employee's control. This provision does not prohibit alteration
or expungement of records or documents pursuant to a court order.
E) No court employee shall discriminate on the basis of nor manifest, by words or conduct, bias
or prejudice based on race, religion, national origin, gender, sexual orientation or political
affiliation in the conduct of service to the court.
F) No court employee shall give legal advice or recommend the names of private attorneys.
G) No court employee shall refuse to enforce or otherwise carry out any properly issued rule or
order of court, nor shall court employees exceed that authority. No court employee shall be
required to perform any duties outside the scope of the assigned job description.
H) Every court employee shall immediately report violations of this Code to the appropriate
designated authority.
I) Court employees who are law students, attorneys or members of other professional groups are
also bound by the appropriate professional duties of those roles.
Section Six: Court Clerk
A) The Court Clerk regularly shall update their education. Wo
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B) The Court Clerk shall require employees subject to their direction and control to observe the
�. ethical standards set out in this Code.
C) The Court Clerk shall diligently discharge their administrative responsibilities, maintain
professional competence in judicial administration and facilitate the performance of other court
employees.
D) The Court Clerk shall take action regarding any unethical conduct of which they may become
aware, initiating appropriate disciplinary measures against an employee for any such conduct and
reporting to the appropriate authorities evidence of any unethical conduct by judges or lawyers.
E) The Court Clerk shall not act as a leader in or hold office in any political organization, make
speeches for any political organization or publicly endorse a candidate for political office.
APPENDIX B
INDIGENT DEFENSE PLAN
CITY OF MILTON, GEORGIA
1. CREATION OF PLAN:
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There is hereby created and approved by the City Council of the City of Milton, Georgia, as the
governing authority of Milton, a plan for the representation of indigent defendants in criminal
cases.
2. DECLARATION OF POLICY:
It is the policy of the governing authority to provide the constitutional guarantees of the right to
the effective assistance of counsel and equal access to the courts to all citizens in criminal cases
and to provide: on"
(a) Adequate defense services for indigent persons accused of crimes;
(b) Adequate compensation for counsel of indigent persons accused of crimes;
(c) Guidelines to insure that indigent persons receive a fair trial;
(d) A system to insure that the responsibility to provide fair and adequate defense to indigent
persons is met;
(e) That independence of counsel is insured;
(f) For defense counsel training to promote economy and competent representation; and
(g) Reasonably early entry into indigent cases by counsel so that the indigent accused shall
be represented prior to any critical stage of the prosecution.
3. THE ADMINISTRATOR FOR THE PLAN:
(a) The administration of the system for providing legal representation for indigent
defendants in criminal cases shall be the responsibility of the administrator of the Om
Indigent Defense Plan, hereinafter referred to as the Administrator. The Administrator
shall be an employee of the City of Milton, and appointed by the Chief Judge of the ,m„
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now Milton Municipal Court. The Administrator shall perform such duties and assignments as
are prescribed by the City of Milton in addition to those specified herein:
saw a. The Administrator shall within a reasonable period of time following the arrest
and detention of any person, appoint counsel for those who are indigent and
without counsel and who wish to have council appointed for them;
b. Clearly advise the detained person of his or her right to have counsel and that if he
or she cannot afford a lawyer, one will be appointed to represent him or her; and
c. Allow or assist a person claiming to be indigent and without counsel immediately
to complete an application for appointment of an attorney and a certificate of
financial resources for a determination of indigency.
(b) The financial eligibility of a person applying for an appointed lawyer shall be determined
by the administrator of the Indigent Defense Plan.
(c) Upon a determination of indigency, the administrator shall immediately appoint an
attorney to represent that defendant and shall notify the attorney, the indigent defendant,
the Solicitor, and the Custodian of the jail if defendant is still in custody, of the
appointment. The original authorization of appointment shall be filed with the clerk's
office file along with the original accusation or warrant; a copy of the authorization shall
be forwarded to the lawyer appointed to represent the defendant, the indigent defendant
himself, and the Solicitor.
(d) A defendant who is brought before a judicial officer within forty-eight (48) hours of his
arrest, if he is advised of his right to appointed counsel, is permitted orally to request the
appointment of counsel, and be questioned as to his financial eligibility, and upon
determination made by the judicial officer of the eligibility of the defendant, a lawyer
may be appointed immediately for that defendant without the requirement of a written
application. In such case, notice shall be given as specified above.
4. POWERS AND DUTIES OF THE INDIGENT DEFENSE PLAN ADMINISTRATOR:
COUNSEL:
(a) The Administrator shall create and maintain a list or roster of private attorneys who shall
be qualified to represent defendants in criminal cases and who shall be appointed to do so
according to the following criteria:
(1) Appointment of private attorneys shall be made on an impartial and equitable
basis;
(2) The cases shall be distributed among the attorneys to insure balanced work loads
through a strict rotation system;
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(3) More difficult or complex cases shall be assigned to attorneys with sufficient
levels of experience and competence to afford adequate representation;
(4) Less experienced attorneys should be assigned cases which are within their
capabilities, but should be given the opportunity to expand their experience under
supervision; and
(b) All members of the State of Georgia Bar Association who desire to practice in the City of
Milton are subject to being included on the list or roster of attorneys to whom indigent
criminal defense cases can be appointed.
(c) The Administrator shall operate the plan so as to insure that the counsel appointed for
indigent defendants shall be politically autonomous and free from influence, guidance, or
control from any other authority in the discharge of his or her professional duties within
the bounds of the law and the code of professional responsibility.
(d) The Administrator shall select only competent lawyers to represent criminal defendants
and their competence and effectiveness on the job shall be monitored and assessed.
Indicators of performance are:
(1) Early entry into representation of the client;
(2) Vigorous and independent representation of the client;
(3) Participation in training activities and continuing legal education; and No
(4) Effective and reasonable use of time and resources. No*
(e) In selecting lawyers to participate in the Indigent Defense Plan, the Administrator shall
satisfy her/himself that the lawyer selected is competent, meaning:
(1) Has adequate educational background;
(2) Has demonstrated ability to perform competent trial work;
(3) The lawyer conducts his professional work in an ethical manner; and
(4) Is a member in good standing of the State Bar of Georgia.
5. THE ROLE OF LAW ENFORCEMENT:
Any law enforcement authority having custody of any person shall:
(a) Allow a person claiming to be indigent and without counsel to complete an application
for an attorney and certificate of financial resources and forward that application to the
administrator of the Indigent Defense Plan for a determination of indigency or not;
was
(b) Advise detained persons of their right to have counsel and if they cannot afford a lawyer
that one will he appointed to assist them;
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(c) Accomplish these procedures within a reasonable time after arrest and detention; and
(d) Attempt to contact the Administrator for the completion of an application for an attorney
and certificate of financial resources.
6. FINANCIAL ELIGIBILITY:
(a) Eligible accused persons include all applicants for an attorney with net income below a
level set by the Georgia Indigency Defense Council according to Federal Health and
Human Services guidelines and revised periodically.
(b) The following special needs of a family unit may be deducted from net income in
determining eligibility:
(1) Child care expenses for working custodial parent;
(2) Legally required support payments to dependents, including child support;
(3) Unusual, excessive, or extraordinary medical or other expenses.
(c) Definitions:
boom (1) "Net income" shall include only a client's take home pay, which is the gross
income minus those deductions required by law or as a condition of employment;
(2) "Family unit" includes the defendant, spouse (if living together), any minor
children who are unemployed and living at home, and any infirm or permanently
disabled person living with the defendant for whom the defendant has assumed
financial responsibility. The income of a minor child who is attending school full
time, but has after school employment or does odd jobs, shall not be attributed to
or included in the income of the family unit. Other persons, if living in the same
household, with the defendant, may be deemed a member of the family unit.
(d) Regardless of prima facie eligibility on the basis of income, a person who has sufficient
assets that are easily converted to cash by sale or mortgage may not be qualified for
representation if it would not impose a substantial financial hardship to convert those
assets to cash.
(e) Counsel may be appointed for any accused who is unable to obtain counsel due to special
circumstances such as emergency, hardship, or a documented refusal of the case by
members of the private bar because of financial inability to pay legal fees.
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7. APPOINTMENT OF COUNSEL:
(a) Counsel shall be appointed for every eligible person in custody within a reasonable
period of time of arrest or detention.
(b) A person released from custody requesting an attorney, who has not been appointed a
lawyer, shall be notified before arraignment of the right to receive Court appointed
counsel and the procedure to be followed to have eligibility determined and counsel
appointed.
(c) A determination of indigent status of a criminal defendant will be made within a
reasonable period of time of arrest for all defendants who have not made bond, and
immediately following request for application for all other defendants. This
determination will be made by the Administrator using the form set out in USCR 29.3
and the standard of eligibility set out in O.C.G.A. §17-12-10 and USCR 29.6 Uniform
Eligibility Guidelines. An attorney appointed shall be notified by telephone or in writing
within a reasonable period of time of the appointment.
8. RESPONSIBILITIES OF COUNSEL:
(a) An attorney appointed to represent an indigent defendant shall contact the defendant
within a reasonable period of time after receipt of the appointment, especially if the
defendant is in custody.
(b) Counsel shall actively represent his client at every stage of the criminal proceeding.
(c) Counsel shall represent his client vigorously within the bounds of the law and ethical
conduct.
(d) Counsel shall at all times perform his role as counsel independently.
(e) Counsel shall responsibly manage and account for his time in rendering services under
the plan.
9. RATES OF COMPENSATION:
(a) Hourly rates: Lawyers will be paid $45.00 per hour for out-of-court time reasonably spent
in the investigation and preparation of the case; and will be paid $65.00 per hour for in -
court time, including, but not necessarily limited to, time reasonably expended at
calendar calls, arraignments, motion hearings, and actual trial time.
(b) The Administrator will review and authorize for payment of the vouchers submitted by
appointed attorneys for amounts not to exceed $300.00.
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(c) In the event of a voucher which exceeds the guideline maximum set forth above, the
"" Administrator may call on the attorney submitting that voucher to justify that portion of
WMW the voucher in excess of the proposed fee guideline.
(d) In the event that the attorney is unable to justify the voucher to the satisfaction of the
Indigent Defense Administrator, then the Administrator shall seek to find a compromise
figure acceptable to the City and the attorney.
(e) In the event that the Indigent Defense Plan Administrator and the attorney submitting the
voucher cannot resolve or compromise their differences regarding the payment of the fee,
then the voucher will be submitted to the trial judge, or in the case of a guilty plea to the
sentencing judge, who shall review the voucher for payment and resolve the fee dispute,
taking into account, among other things, the nature and complexity of the case and the
legal and factual issues involved. The decision of the trial judge shall be final and not
subject to review in any other place.
10. REIMBURSEMENT OF ATTORNEY'S FEES BY DEFENDANT:
(a) All attorneys appointed under this plan to represent criminal defendants shall be paid
from City funds under the provisions of this plan.
(b) When the sentencing judge deems it appropriate under O.C.G.A. §17-12-10 and 11 or
wpm §17-12-40 that a defendant should reimburse the city for the attorney's fees and expenses
incurred under this plan, the Court may order that reimbursement to the City as part of
bowthe judgment of conviction and sentence in the case.
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IN THE MUNICIPAL COURT OF THE CITY OF MILTON
STATE OF GEORGIA
WHEREAS, pursuant to The Code of Milton, State of Georgia, Section 5.13 of the
Charter, the Judge shall have full power and authority to make reasonable rules and regulations
necessary and property to secure the efficient and successful administration of the municipal
court.
IT IS THEREFORE THE ORDER of this Honorable Court that the Uniform Rules of the Milton
Municipal Court be adopted this day of ,20 nunc pro tunc to
the day of ,20
Municipal Court Judge
0