Wednesday, July 25, 2012

Right to a Jury Trial in Georgia


 . . . Well, this post is not going to be fun to read, but it will be useful for ME when I need to find this information again.  Nearly all of it is cut and paste directly from the text of the source information, but if you use it, your on your own if you have not hired a good Georgia criminal defense attorney. (Link doesn't work??? ooooooh . . . maybe no-one has paid me to turn it on yet.)


NOTE . . . a good Georgia criminal defense attorney is different than a criminal attorney.

GEORGIA LAW ON THE SUBJECT
“The right of trial by jury as declared by the Constitution of the state or as given by a statute of the state shall be preserved to the parties inviolate.”

US Constitution
Criminal Jury Trials
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Civil Jury Trials
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

GA Constitution
(a) The right to trial by jury shall remain inviolate, except that the court shall render judgment without the verdict of a jury in all civil cases where no issuable defense is filed and where a jury is not demanded in writing by either party. In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.

(b) A trial jury shall consist of 12 persons; but the General Assembly may prescribe any number, not less than six, to constitute a trial jury in courts of limited jurisdiction and in superior courts in misdemeanor cases.

(c) The General Assembly shall provide by law for the selection and compensation of persons to serve as grand jurors and trial jurors.

Some exceptions include:
However, the right is not conferred in all cases:
-                  Suits in equity  
-                  Injunctions
-                  Garnishments
-                  Enforcement of equitable liens
-                  Appeals from decisions of the unemployment compensation Board

The demand for jury trial can be made at any time up until the case is called for trial, or upon the call for trial. 
o   Carleton v. State, 176 Ga. App. 399 (1985).  (However, note that if a person has the opportunity to invoke the right to jury trial, and does not do so immediately, s/he is deemed to have waived the right, and the right to revoke that waiver is not absolute.  It proof is shown that allowing revocation of the waiver would “substantially delay or impede the cause of justice”, the court may deny the request.)

(link to your website could be right HERE!)

Tuesday, July 24, 2012

Parenting Time Deviations in the Age of Income Shares

     One hundred thousand years ago, Keyrock fell into a crevasse only to be unfrozen near the end of the 20th century by the warm brotherly embrace of the legal profession.
     More recently, in 2007, the State of Georgia transitioned into the "income shares" model for calculation of child support, and even old curmudgeons like the Unfrozen Caveman Lawyer needed to catch up with the times and stop thinking like they were still calculating support as if it were just based purely on a percentage of income.
     One of the key points of this concept is that the percentage of time that a parent has the child in his custody DOES NOT MATTER in determining deviations from the basic child support obligation
UNLESS,
     (1)the parents share TRUE Joint Physical Custody
          (which means 50/50 time split between the parents)
OR
     (2) the court orders (or a jury finds by special interrogatory) that special circumstances exist due to the extended parenting time of one of the parents that justify the deviation.
O.C.G.A. 19-6-15(i)(2)(K).

Of course, in condition (2), it is important to remember that the "best interests of the child" is the standard by which the deviation is justified, and not the "best interests of the parent to have a round number to remember when s/he writes a check".

WHAT THIS MEANS IS:  the amount of time spent with the child DOES NOT allow a deviation UNLESS it is 50/50, or if you have EXPENSES associated with the excessive parenting time.  The expenses cannot be assumed or you know what happens????  (click HERE to find out)

Don't believe some faceless name on the internet?  Good for You!!  There is a lot of crap out there.
Listen instead to the Georgia Court of Appeals:  (read that fine print!)
          Thus, the current child support guidelines are premised on a rebuttable presumption that each parent should contribute to the financial support of their child in the same proportion as that parent's income relates to the sum of the parents' incomes, without regard to the amount of time the child spends with each parent. The guidelines permit the court or the jury to deviate from the presumptive amount, but only when the child resides with both parents equally or when special circumstances exist and such a deviation serves the best interest of the child

Well, I'm behind Keyrock, in that I am just a guy who knows how to read the English language.
If you want legal advice, go talk to a licensed Georgia attorney.  (a link to your website could be here!)



Wednesday, July 11, 2012

Using Words

Ok, this starts off with two legal terms, AMENDED, versus AMENDMENT.
  An Amendment is an addition to an existing document.
  An Amendment is like a Constitutional Amendment, such as the Second Amendment, which in a general sense, gives Americans the right to own firearms whether or not they are mentally ready to possess them, or physically capable of competently using them.  (see the whole text of the Constitution here.)

An Amended document is a new version of an existing document.
  If you have an existing divorce order, and you want to change that order to have new language in it, you need to amend the existing order.  For example, in the original order you have the ex wife's name being changed to Mary Smith, but it really should have been changed back to Mary Jones, then you need to file and have entered an amended order.
PS.
If you don't have an original document approved by the court, and entered as an order, you cannot file an "amended order" because there is nothing to be amended.   


Now we go to another term often used in affidavits.  NOT, versus NAUGHT.
  At the very end of an affidavit, some sort of sentence is used to indicate that the affidavit is over, and then some sort of signature line with identifying language for who the affiant is comes immediately after.  The two most common forms of this are:
1)  The Affiant Further Says Not.  
     If you interpret what this line says in the English language, the affiant is literally saying the word "not", and that doesn't make a whole lot of sense.
2)  The Affiant Further Says Naught.
     This line makes more sense, as it means that the affiant further says nothing.  Now this seems to be the Olde Englishe sort of language usage, but at least it makes sense.


Now how about we deviate into a complete demonstration of words that people should not use if they do not know what they mean . . .


Aural     v.     Oral     -     I suppose this is better than some, because at least they deal with the senses.
Awful     v.     Offal     -     While both are not so good, one means bad, and the other means poo.
Altar     v.     Alter     -     If you want to altar your paperwork, the courtroom is not the place for it.


Anyway, lots of other homonyms to get to, but this post was just because, once again, someone wanted to amend a document that was never accepted in the first place, and I wanted to write this instead of go to lunch.