Ga. Unif. R. Mag. Ct. 28

As amended through October 9, 2024

Rule 28 - Motions, Demurrers, Special Pleas, and Similar Items in Criminal Matters

28.1 Time for Filing.

All motions, demurrers, and special pleas shall be made and filed at or before the time set by law, unless time therefor is extended by the judge in writing prior to trial. Notices of the state's intention to present evidence of similar transactions or occurrences and notices of the intention of the defense to raise the issue of insanity or mental illness shall be given and filed at least ten (10) days before trial unless the time is shortened or lengthened by the judge. Such filing shall be in accordance with the following procedures.

28.2 Time for Hearing.

All such motions, demurrers, special pleas and notices shall be heard and considered at such time, date, and place as set by the judge. Generally, such will be heard at or after the time of arraignment and prior to the time at which such case is scheduled for trial.

28.3 Notice of Prosecution's Intent to Present Evidence of Similar Transactions.

(A) The prosecution may, upon notice filed in accordance with section 28.1 of these rules, request of the court in which the charging instrument is pending leave to present during the trial of the pending case evidence of similar transactions or occurrences.

(B) The notice shall be in writing, served upon the defendant's counsel, and shall state the transaction, date, county, and the name(s) of the victim(s) for each similar transaction or occurrence sought to be introduced. Copies of accusations or indictments, if any, and guilty pleas or verdicts, if any, shall be attached to the notice. The judge shall hold a hearing at such time as may be appropriate, and may receive evidence on any issue of fact necessary to determine the request. The burden of proving that the evidence of similar transactions or occurrences should be admitted shall be upon the prosecution. The state may present during the trial evidence of only those similar transactions or occurrences specifically approved by the judge.

(C) Evidence of similar transactions or occurrences not approved shall be inadmissible. In every case, the prosecuting attorney and defense attorney shall instruct their witnesses not to refer to similar crimes, transactions or occurrences, or otherwise place the defendant's character in issue, unless specifically authorized by the judge.

(D) If upon the trial of the case the defense places the defendant's character in issue, evidence of similar transactions or occurrences, as shall be admissible according to the rules of evidence, shall be admissible, the above provisions notwithstanding.

(E) Nothing in this rule is intended to prohibit the state from introducing evidence of similar transactions or occurrences which are lesser included alleged offenses of the charge being tried, or are immediately related in time and place to the charge being tried, as part of a single, continuous transaction. Nothing in this rule is intended to alter the rules of evidence relating to impeachment of witnesses.

(F) This rule shall not apply to sentencing hearings.

28.4 Notice of Intention of Defense to Raise Issue of Insanity, Mental Illness or Mental Competency.

(A) If, in any criminal proceeding, the defense intends to raise the issue that the defendant or accused was or is insane, mentally incompetent, or mentally ill at the time of act or acts charged against the accused, or at the time of trial, such intention must be stated, in writing, in a pleading denominated as "Notice of Intent of Defense to Raise Issue of Insanity or Mental Incompetence." This notice shall be filed and served upon the prosecuting attorney in accordance with section 28.1. of these rules. Upon the filing of such notice, the judge shall determine from the prosecuting attorney and the defense attorney whether such issue requires any further mental examination of the accused ahead of trial of the case on the merits.

(B) Except for good cause shown, the issue of insanity shall not be raised in the trial on the merits unless notice has been filed and served ahead of trial as provided in these rules.

28.5 Motion and Order for Evaluation Regarding Mental Competency to Stand Trial.

(A) In pending magistrate court cases where the mental competency of a defendant is brought into question, the judge may, upon a proper showing, exercise discretion and require a mental evaluation at public expense. A motion for mental evaluation may be filed in writing, setting out allegations and grounds for such motion, praying for a court-ordered evaluation. The judge may enter an order requiring a mental evaluation of the defendant for the purposes of evaluating competency to stand trial. The judge may direct the Department of Behavioral Health and Developmental Disabilities to perform the evaluation at a time and place to be set by the department in cooperation with the county sheriff or counsel for the defendant if the defendant is not in custody. The clerk shall forward a copy of the order to the department accompanied by a copy of the indictment, accusation, or specification of charges, and where available, a copy of the police arrest report, and a brief summary of any known or alleged previous mental health treatment or hospitalization involving this particular person. Counsel for the defendant shall forward any other background information available to the evaluator to assist in performing adequately the requested services. Unless otherwise ordered by the court, the department shall submit its report to the requesting judge for distribution to the defendant's attorney. The evaluation shall be placed under seal and shall not be released absent a court order. Upon the filing of a Plea of Mental Incompetency to Stand Trial, the court shall submit a copy of the department's evaluation to the prosecuting attorney.

(B) Copies of suggested orders requesting psychiatric evaluation are attached as Specimen Psychiatric Evaluation Order #1 and Specimen Psychiatric Evaluation Order #2. The department or service shall submit its report to the requesting judge, who shall provide copies of the report to the defendant's attorney and the prosecuting attorney.

SPECIMEN COMMITTAL ORDER AFTER SPECIAL PLEA OF

MENTAL INCOMPETENCY TO STAND TRIAL

IN THE MAGISTRATE COURT OF __________________________ COUNTY
STATE OF GEORGIA
STATE OF GEORGIA		CASE NO. _______
v.
_____________		CHARGE(S):
JUDGMENT AND ORDER OF THE COURT ON
THE DEFENDANT'S SPECIAL PLEA OF
MENTAL INCOMPETENCY TO STAND TRIAL

The above stated case came on regularly before the undersigned for trial this date. The defendant was represented by counsel.

After a hearing on defendant's special plea of mental incompetency and due consideration, the plea of Mental Incompetency to Stand Trial is sustained.

IT IS, THEREFORE, THE ORDER of this court that the defendant be now delivered to the sheriff of ______ County and that the defendant be delivered by the sheriff, or the sheriff's lawful deputy, to the Department of Behavioral Health and Developmental Disabilities, as provided by OCGA § 17-7-130.

IT IS FURTHER ORDERED that at such time as it is determined that the defendant is capable of understanding the nature and object of the proceedings, comprehends his or her own condition in reference to such proceedings, and is capable of rendering counsel assistance in providing a proper defense, the defendant be delivered by the Department of Behavioral Health and Developmental Disabilities to the sheriff of this county, or the sheriff's lawful deputy, with transportation costs to be borne by the county.

IT IS FURTHER ORDERED that, should it be determined in the light of present day medical knowledge that recovery of the defendant's legal mental competency to stand trial is not expected at any time in the foreseeable future, the defendant shall be dealt with by the Department of Behavioral Health and Developmental Disabilities as provided in OCGA § 17-7-130.

SO ORDERED, this the ______ day of ____________, 20______.

____________________________________

JUDGE, MAGISTRATE COURT OF _________

COUNTY, GEORGIA

SPECIMEN PSYCHIATRIC EVALUATION ORDER NO. 1

IN THE MAGISTRATE COURT OF __________________________ COUNTY
STATE OF GEORGIA
STATE OF GEORGIA		CASE NO. _______
v.
_____________		CHARGE(S):
ORDER FOR MENTAL EVALUATION
REGARDING COMPETENCY TO STAND TRIAL

WHEREAS the mental competency to stand trial of the above defendant has been called into question, and evidence presented in the matter, and this court has found that it is appropriate for evaluation to be conducted by public expense;

IT IS HEREBY ORDERED that the Department of Behavioral Health and Developmental Disabilities (or Forensic Psychiatry Service) conduct an evaluation of said defendant, provide treatment of the defendant, if appropriate, and provide to this court a report of diagnosis, prognosis and its findings, with respect to:

Competency to stand trial - whether the defendant is capable of understanding the nature and object of the proceedings; whether the defendant comprehends his or her own condition in reference to such proceedings; and whether the defendant is capable of rendering counsel assistance in providing a proper defense.

IT IS FURTHER ORDERED that the department (or service) arrange with the county sheriff, or the sheriff's lawful deputies, for the prompt evaluation of said defendant, either at the county jail or at a designated hospital, with transportation of the defendant to be provided by the sheriff, where necessary, with transportation costs to be borne by the county. Upon completion of the evaluation, the examining facility shall notify the sheriff, who shall promptly reassume custody of the defendant.

Copies of documents supporting this request are attached hereto, as follows:

( ) Accusation

( ) Summary of previous mental health treatment

( ) Copy of arrest report

( ) Other _________________________________

So ordered, this the ____ day of ________________, 20___.

_______________________________________

JUDGE, MAGISTRATE COURT OF

__________ COUNTY, GEORGIA

SPECIMEN PSYCHIATRIC EVALUATION ORDER NO. 2

IN THE MAGISTRATE COURT OF __________________________ COUNTY
STATE OF GEORGIA
STATE OF GEORGIA		CASE NO. _______
v.
_____________		CHARGE(S):
ORDER FOR MENTAL EVALUATION REGARDING
COMPETENCY AT THE TIME OF THE ACT

WHEREAS, the mental competency of the above defendant has been called into question, and evidence presented in the matter, and this court has found that it is appropriate for an evaluation to be conducted at public expense;

IT IS HEREBY ORDERED that the Department of Behavioral Health and Developmental Disabilities (or Forensic Psychiatry Service) conduct an evaluation of the defendant, provide treatment of the defendant, if appropriate, and provide to this court a report of diagnosis, prognosis and its findings, with respect to:

1. Competency to Stand Trial - whether the defendant is capable of understanding the nature and object of the proceedings; whether the defendant comprehends his or her own condition in reference to the proceedings; and whether the defendant is capable of rendering counsel assistance in providing a proper defense.

2. Degree of Criminal Responsibility or Mental Competency at the Time of the Act - whether or not the defendant had the mental capacity to distinguish right from wrong in relation to the alleged act; or whether or not the presence of a delusional compulsion overmastered the defendant's will to resist committing the alleged act.

3. Any recommendations for disposition.

IT IS FURTHER ORDERED that the department (or service) arrange with the county sheriff, or the sheriff's lawful deputies, for the prompt evaluation of said defendant, either at the county jail or at a designated hospital, with transportation of the defendant to be provided by the sheriff, when necessary, with transportation costs to be borne by the county. Upon completion of the evaluation, the examining facility shall notify the sheriff, who shall promptly reassume custody of the defendant.

Copies of documents supporting this request are attached hereto, as follows:

( ) Accusation

( ) Summary of previous mental health treatment

( ) Copy of arrest report

( ) Other

So ordered, this the ______ day of ________, 20_.

___________________________________________

JUDGE, MAGISTRATE COURT OF

_____________________COUNTY, GEORGIA

Ga. Unif. R. Mag. Ct. 28

Adopted effective December 19, 2002; amended effective July 15, 2004; amended February 4, 2016, effective March 3, 2016.