Cruelty to Children in Cherokee County

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By: Attorney Erin Dohnalek

In Georgia, the offense of cruelty to children is broken down into three different degrees, depending on the severity of the alleged abuse. Because of the consequences of such a serious crime, it is vitally important to understand the offense, as well as your individual rights when dealing with such allegations.

According to O.C.G.A. § 16-5-70, first-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, under the age of eighteen, willfully deprives the child of necessaries to the extent that the child’s well-being is jeopardized. Additionally, conduct in which such person causes a minor child cruel or excessive physical or mental pain is considered first-degree child cruelty.

Second-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, with criminal negligence, causes a child, under the age of eighteen, cruel or excessive physical or mental pain. Additionally, third-degree cruelty to children occurs when a parent, guardian, or other person supervising a minor child acts in one of the following ways:

  • Such person acts as the primary aggressor and intentionally allows a minor child to witness the commission of a forcible felony, battery, or family violence battery; or
  • Such person, who is acting as the primary aggressor, knows that the minor child is present or knows that the child can either hear or see the act, commits the act of forcible felony, battery, or family violence battery.

Penalties

The penalty for a conviction of first-degree cruelty to children in Cherokee County, Georgia is a prison sentence between 5-20 years. For second-degree cruelty to children, the prison term is anywhere between 1-10 years. Alternatively, if a person is convicted of third-degree cruelty to children, he/she may be sentenced to a misdemeanor penalty, depending on his/her past criminal history. If the person has never been convicted of third-degree cruelty to children or has only been convicted once in the past, he/she may be sentenced to a misdemeanor penalty. However, if such person has been convicted in the past more than twice for the same offense then he/she will be sentenced to a felony prison term between 1-3 years and/or a fine of no less than $1,000, but no more than $5,000.

Defenses

Due to the severity of the punishment, as well as the collateral consequences for a charge of cruelty to children, it is vitally important to hire an experienced criminal defense attorney to defend you against such allegations and who also understands all the possible defenses to such a charge. Some defenses to cruelty to children include, but are not limited to:

  • Accident, if it did not result from the person’s recklessness or criminal negligence;
  • Parent’s right to discipline, if reasonable; and
  • Actual innocence or false allegations.

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of cruelty to children, as well as all possible options for an accused dealing with such a serious charge.  Therefore, if you or a loved one has been arrested for cruelty to children in Cherokee County, please call our office today at 404-581-0999 for a free consultation.

Cruelty to Children in Clayton County

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By: Attorney Erin Dohnalek

In Georgia, the offense of cruelty to children is broken down into three different degrees, depending on the severity of the alleged abuse. Because of the consequences of such a serious crime, it is vitally important to understand the offense, as well as your individual rights when dealing with such allegations.

According to O.C.G.A. § 16-5-70, first-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, under the age of eighteen, willfully deprives the child of necessaries to the extent that the child’s well-being is jeopardized. Additionally, conduct in which such person causes a minor child cruel or excessive physical or mental pain is considered first-degree child cruelty.

Second-degree cruelty to children occurs when a parent, guardian, or other person supervising a child, with criminal negligence, causes a child, under the age of eighteen, cruel or excessive physical or mental pain. Additionally, third-degree cruelty to children occurs when a parent, guardian, or other person supervising a minor child acts in one of the following ways:

  • Such person acts as the primary aggressor and intentionally allows a minor child to witness the commission of a forcible felony, battery, or family violence battery; or
  • Such person, who is acting as the primary aggressor, knows that the minor child is present or knows that the child can either hear or see the act, commits the act of forcible felony, battery, or family violence battery.

Penalties

The penalty for a conviction of first-degree cruelty to children in Clayton County, Georgia is a prison sentence between 5-20 years. For second-degree cruelty to children, the prison term is anywhere between 1-10 years. Alternatively, if a person is convicted of third-degree cruelty to children, he/she may be sentenced to a misdemeanor penalty, depending on his/her past criminal history. If the person has never been convicted of third-degree cruelty to children or has only been convicted once in the past, he/she may be sentenced to a misdemeanor penalty. However, if such person has been convicted in the past more than twice for the same offense then he/she will be sentenced to a felony prison term between 1-3 years and/or a fine of no less than $1,000, but no more than $5,000.

Defenses

Due to the severity of the punishment, as well as the collateral consequences for a charge of cruelty to children, it is vitally important to hire an experienced criminal defense attorney to defend you against such allegations and who also understands all the possible defenses to such a charge. Some defenses to cruelty to children include, but are not limited to:

  • Accident, if it did not result from the person’s recklessness or criminal negligence;
  • Parent’s right to discipline, if reasonable; and
  • Actual innocence or false allegations.

At the Law Offices of W. Scott Smith, our lawyers are trained to know all affirmative defenses for the offense of cruelty to children, as well as all possible options for an accused dealing with such a serious charge.  Therefore, if you or a loved one has been arrested for cruelty to children in Clayton County, please call our office today at 404-581-0999 for a free consultation.

How do I get out of the Fulton County Jail?

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You are in handcuffs and headed to the Fulton County Jail. You want to get out as soon as possible. Your loved ones are in a panic to find a lawyer to help get a bond set. What do you do?

First, do not make any statements to the police while you are being transported to the Fulton County Jail.

Second, do not make any statements about the facts of your case to anyone at the Fulton County Jail. This is not the time to plead your innocence. Your sole focus should be on getting out on bond.

If you are arrested on a misdemeanor, you will go in front of a Magistrate Judge the following morning at 9am.

If you are arrested on a felony, you will go in front of a Magistrate Judge the following morning at 11am.

Your loved ones should plan on going to the Fulton County jail about 30 minutes prior to court starting. Although most of the first appearance hearings will be conducted by zoom.

The Fulton County jail is located at 901 Rice Street, Atlanta, Georgia 30318.

The Fulton County Judge is required to consider four factors when setting a bond.

  1. Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
  2. Poses no significant threat or danger to any person, to the community, or to any property in the community;
  3. Poses no significant risk of committing any felony pending trial;
  4. Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

Some crimes must go before a Superior Court judge in order to have a bond set. If you are charged with any of these specific crimes in Fulton County then the Magistrate Judge cannot set a bond at your initial court appearance. All that will happen at this appearance, is the judge will read the warrants to you and reset your case.

The crimes that are only bondable by a Superior Court judge are as follows:

  1. Treason
  2. Murder
  3. Rape
  4. Aggravated Sodomy
  5. Armed Robbery
  6. Aircraft hijacking and hijacking a motor vehicle
  7. Aggravated Child Molestation
  8. Aggravated Sexual Battery
  9. Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule 1 or under Code Section 16-13-26 as Schedule II
  10. Violating Code Section 16-13-31 or 16-13-31.1
  11. Kidnapping, arson, aggravated assault, or burglary if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary, had been previously convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary, or one or more of the offenses listed above.
  12. Aggravated Stalking

For any of these crimes that are bondable only by a Fulton County Superior Court judge, you will get a court date that will be in the Fulton County Courthouse. The Fulton County Courthouse is located at 185 Central Avenue, Atlanta, Georgia 30303. These court dates start at 9:30am. As of now, most of these hearings are held on zoom.

There are several types of bonds available for your case.

  1. Released to Pretrial Services: Fulton County will sometimes release people on their own recognizance which means that you do not have to put up any money. You will be monitored by Fulton County Pretrial Services. You will have to report to Pretrial Services until your case gets resolved in court.
  2. Cash Bond: Another option in Fulton County is to pay a cash bond. This means that you pay the entire bond yourself. The benefit to this bond is that it is refundable to you once you resolve your case.
  3. Property Bond: Another option in Fulton County is to post a property bond. In order to post a property bond, you would need to speak to the Fulton Sheriff’s office. They generally will require a warranty deed, a current tax statement showing the property’s fair market value as well as a statement showing all taxes are current. You generally need double the bond amount in equity.
  4. Bail Bondsman: The final option is to call a bonding company. You will pay between 10% – 15% of the total bond to the bonding company. The bonding company will then post the entire bond and you will be released. This 10% – 15% is non-refundable. The Fulton County jail will provide you with a list of approved bonding companies.

If you or your loved one is arrested and taken to the Fulton County jail, please contact us any time and we can assist you in helping get a bond set.

Our office is located in downtown Atlanta at 100 Peachtree Street, Suite 2060, Atlanta, Georgia 30303. Feel free to call us at 404-581-0999 anytime day or night. Also, please go to our website at www.peachstatelawyer.com

Immunity Motions in Domestic Violence Cases- Fulton County

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If a person is charged in the State of Georgia with Domestic Violence, that person has the right to claim self-defense. Not only can the person claim self-defense at trial, but the person also has the right to file what is called an immunity motion under O.C.G.A. § 16-3-24.2.

This is a legal motion made pre-trial, whereby a person can assert that their self-defense claim is so strong that the Court cannot allow the prosecutor to continue with the case. Once the motion is filed, the Court must hear and rule on the motion prior to trial.

In an immunity motion the burden is on the defense to establish, by a preponderance of the evidence (more likely than not), that they should win on the self-defense theory. Once the defense has raised the self-defense claim, the State then has the burden of disproving the claim of self-defense beyond a reasonable doubt. The judge will hear testimony, consider evidence, and make a ruling. Two outcomes can occur:

  1. If the Court finds that the defense presented sufficient evidence at the pretrial hearing and persuaded the Court that they were acting in self-defense — the Court will grant the motion and dismiss the case.
  2. If the Court finds that the defense did not present sufficient evidence at the pretrial hearing and did not persuade the Court that they were acting in self-defense — the Court will deny the motion and the case will proceed to trial.

The advantage to filing this type of motion is that it can protect a person who is charged with domestic violence from the risk of uncertainty of going to trial. If the motion is not successful, the person charged, still has every right to fight the charges at trial. These motions can be very beneficial, in the right case, for the person charged with domestic violence.

If you or someone you know has been arrested for a domestic violence charge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Georgia Immunity Motions in Domestic Violence Cases

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If a person is charged in the State of Georgia with Domestic Violence, that person has the right to claim self-defense. Not only can the person claim self-defense at trial, but the person also has the right to file what is called an immunity motion under O.C.G.A. § 16-3-24.2.

This is a legal motion made pre-trial, whereby a person can assert that their self-defense claim is so strong that the Court cannot allow the prosecutor to continue with the case. Once the motion is filed, the Court must hear and rule on the motion prior to trial.

In an immunity motion the burden is on the defense to establish, by a preponderance of the evidence (more likely than not), that they should win on the self-defense theory. Once the defense has raised the self-defense claim, the State then has the burden of disproving the claim of self-defense beyond a reasonable doubt. The judge will hear testimony, consider evidence, and make a ruling. Two outcomes can occur:

  1. If the Court finds that the defense presented sufficient evidence at the pretrial hearing and persuaded the Court that they were acting in self-defense — the Court will grant the motion and dismiss the case.
  2. If the Court finds that the defense did not present sufficient evidence at the pretrial hearing and did not persuade the Court that they were acting in self-defense — the Court will deny the motion and the case will proceed to trial.

The advantage to filing this type of motion is that it can protect a person who is charged with domestic violence from the risk of uncertainty of going to trial. If the motion is not successful, the person charged, still has every right to fight the charges at trial. These motions can be very beneficial, in the right case, for the person charged with domestic violence.

If you or someone you know has been arrested for a domestic violence charge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

I have a stay away/no contact provision in my bond, but I live with the victim. What do I do?

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“Stay Away” and “No Contact” bond conditions are common conditions attached to bond orders when someone is charged with battery. These conditions mean just what they say: that the defendant is to stay away from the alleged victim in the case, and is to have no contact with them under any circumstances. While this is normally an easy condition to abide by, what do you do if the alleged victim is a spouse, child, or someone else who lives in your home?

If you have been arrested and charged with battery or battery-family violence against someone who lives with you and there is a no contact provision to your bond, continuing to reside in the home with that person is a violation of your bond condition, and puts you at serious risk of having your bond revoked. This is true even if the alleged victim in your case expresses a desire to have the charges dropped, they want to continue to live with you, or it was all a misunderstanding. If there is a no contact condition, any contact, even if friendly, could result in a bond revocation. So what should you do?

If you have charges of battery or battery-family violence and you want to continue to live with or see the victim in the case, you must first obtain an order modifying your bond conditions. You must do this before you continue to live with or communicate with the victim. You should contact an attorney to request that they file a motion for bond modification with the Court. Your attorney will then file the motion on your behalf, and the Court may grant the motion or may decide to have a hearing on the motion. If the Court schedules a hearing, your attorney will appear and advocate on your behalf, arguing that you should be permitted to have contact with the alleged victim.

If you are currently in contact with the alleged victim in your case and there is a no contact provision, notify your attorney immediately, and remove yourself from the residence or location where the victim is staying. Do not continue to speak to or reside with the victim until your bond can be modified.

CONTACT US

At the Law Offices of W. Scott Smith, our lawyers are trained at defending such allegations, we are knowledgeable about all the potential defenses of such a charge, and we have experience at trial advocating for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for battery-family violence in Fulton County, please call our office today at 404-581-0999 for a free consultation.

BATTERY- FAMILY VIOLENCE IN FULTON COUNTY

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In Georgia, battery-family violence is the identical charge of battery except that the alleged victim in the case has some sort of familial connection to the accused. The State of Georgia also takes family violence offenses very seriously and they can prosecute the accused of family violence, even if the victim does not want to press charges.

According to O.C.G.A. § 16-5-23.1, a person commits “battery” when he/she intentionally causes substantial physical or visible bodily harm to another. However, in order for a person to be charged with battery- family violence, the crime must have occurred between the following people:

  • Spouses or former spouses;
  • Individuals who have a child together;
  • Parents and children;
  • Step-parents and step-children;
  • Foster-parents and foster-children; and
  • Individuals living or formerly living in the same household.

PENALTIES

Battery- family violence can either be characterized as a felony or a misdemeanor, depending on the past criminal history of the accused. Major consequences of battery-family violence are the loss of gun rights, serving time on probation, or potentially in custody, and any future conviction of the same crime may be transferred to the Futon County District Attorney’s Office to prosecute as a felony.

Fulton County has strict policies in place for offenses related to family violence. If the accused is previously convicted of battery-family violence, and they are subsequently arrested for the same charge, the Fulton County Solicitor-General’s Office will often transfer it to the District Attorney’s Office in order to indict as a felony.

Furthermore, the prosecutors in the Fulton County Solicitor-General’s Office do not have much discretion when it comes to these types of cases. Their policy is generally to not allow prosecutors in their office to reduce family violence charges to a lesser-included offense without the authorization from a supervisor. Thus, it is of vital importance to hire a seasoned criminal defense attorney with trial experience to defend allegations such as these due to the policies put in place by the Fulton County Solicitor-General’s Office. In many cases, going to trial might be a client’s best option to avoid a conviction, save their gun rights, and protect their freedom.

CONTACT US

At the Law Offices of W. Scott Smith, our lawyers are trained at defending such allegations, we are knowledgeable about all the potential defenses of such a charge, and we have experience at trial advocating for our clients and their constitutional rights. Therefore, if you or a loved one has been arrested for battery-family violence in Fulton County, please call our office today at 404-581-0999 for a free consultation.