GA Code § 17-11-4 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 11 - Assessment and Payment of Costs of Criminal Proceedings|Article 1 - General Provisions|§ 17-11-4. Imposition of Costs and Jail Fees Upon Prosecutor or Complainant

  The prosecutor's name shall be endorsed on every indictment, and he shall be compelled to pay all costs and jail fees upon the acquittal or discharge of the person accused when:   The grand jury, by its foreman, on returning "no bill," expresses as its opinion that the prosecution was unfounded or malicious;   A jury on the trial of the prosecution finds it to be malicious; or   The prosecution is abandoned before trial. When it is thus abandoned, the officer who issued the warrant shall enter a judgment against the prosecutor for all the costs and enforce it by an execution in the name of the state or by an attachment for contempt.     A magistrate may, in his discretion, assess costs and jail fees against the person who instigated the prosecution when, at a committal hearing, the action is dismissed for want of probable cause and the magistrate finds that the complaint was unfounded and malicious. This subsection shall not apply to law enforcement personnel.    (Laws 1833, Cobb's 1851 Digest, p. 833; Code 1863, § 4518; Code 1868, § 4537; Ga. L. 1871-72, p. 53, § 1; Code 1873, § 4630; Code 1882, § 4630; Penal Code 1895, § 1082; Penal Code 1910, § 1109; Code 1933, § 27-2805; Ga. L. 1982, p. 3, § 17; Ga. L. 1986, p. 282, § 1.)   Cross references.   - Assessment of costs in magistrate court criminal cases, Uniform Rules for the Magistrate Courts, Rule 12.3.   JUDICIAL DECISIONS   "Prosecutor" defined.    - "Prosecutor," for purposes of this section, was one who instigates a prosecution by making an affidavit charging a named person with the commission of a penal offense on which a warrant was issued or an indictment or accusation was based. Sampson v. State, 43 Ga. App. 89, 157 S.E. 915 (1931); In re Herring, 185 Ga. App. 541, 365 S.E.2d 139 (1988).    "Prosecutor" for purposes of this section was the person who voluntarily goes before the grand jury with the prosecutor's complaint. Sampson v. State, 43 Ga. App. 89, 157 S.E. 915 (1931).   Evidence that return of "no bill, malicious prosecution" is not well-founded.    - When a prosecutor is required by rule to show cause why the prosecutor should not be compelled to pay the costs of a criminal case, because of a return by the grand jury of "no bill, malicious prosecution" upon a bill of indictment, it is not incompetent for the prosecutor to show by evidence that such return was not well-founded in the fact. Green v. State, 112 Ga. 52, 37 S.E. 93 (1900).   Whether paragraph (a)(2) or (a)(3) is applicable depends on attachment of jeopardy.    - Paragraph (3) (see paragraph (a)(3)) of this section applied when the prosecution is abandoned before the trial, that is, before the trial has reached such a stage as to put the defendant in jeopardy. Paragraph (2) of the section (see paragraph (a)(2)) applied when the trial has reached such a stage as to put the defendant in jeopardy and the jury to find the prosecution to be malicious. Thus, if before the defendant is put in jeopardy the prosecutor abandons the prosecution, the prosecutor may be liable for the costs, but, if the trial before the jury has reached such a stage as to put the defendant in jeopardy it then becomes a jury question whether or not the prosecution is malicious, and, if the jury finds the prosecution is malicious, the costs may be assessed against the prosecutor. Rainey v. State, 50 Ga. App. 256, 177 S.E. 757 (1934).   Failure to endorse prosecutor's name on indictment.    - Fact that the name of the prosecutor was not endorsed upon the indictment as required by this section did not involve any right and privileges of a defendant, but only affected the prosecutor, who must pay costs upon the acquittal or discharge of the person accused under circumstances set forth in that section, and any error in this regard was not harmful to a defendant. Lewis v. State, 144 Ga. App. 847, 242 S.E.2d 725 (1978).   Execution on warrant when prosecution abandoned before trial.    - When a prosecution is abandoned before trial, the officer who issued the warrant is authorized to enter a judgment against the prosecutor for all costs and enforce the judgment by an execution in the name of the state. An execution on such judgment issued in the name of the accused in the warrant is void. Underwood v. Harvey, 106 Ga. 268, 32 S.E. 124 (1898).   Consent agreement and dismissal of prosecution for child abandonment.    - If the prosecuting attorney in a child abandonment case, and not the mother (who was the prosecuting witness), made the determination to enter into a consent agreement and to permit the dismissal of the action against the putative father, the state could not then cast the costs against the prosecuting witness, the trial court having made no finding that the mother abandoned the prosecution. In re Herring, 185 Ga. App. 541, 365 S.E.2d 139 (1988).   Cost of paternity blood test in child abandonment case.    - When the state requests pretrial paternity blood testing for a defendant charged with child abandonment, the state must initially pay the cost. A verdict incorporating a finding of parentage would authorize the court to tax the cost of the blood test against the defendant, or under certain circumstances against the prosecutor/prosecutrix or complainant. State v. Slavny, 195 Ga. App. 818, 395 S.E.2d 56 (1990).    Payment of costs may be enforced by imprisonment. Green v. State, 112 Ga. 52, 37 S.E. 93 (1900).    Cited in Lumpkin County v. Davis, 185 Ga. 393, 195 S.E. 169 (1938).   OPINIONS OF THE ATTORNEY GENERAL    Ultimate responsibility for costs  will fall upon the defendant, the prosecutor, or the fine and forfeiture fund, depending upon the circumstances. 1971 Op. Att'y Gen. No. U71-42.    "Discharge before trial"  occurs at any time before the trial has reached such a stage as to put the accused in jeopardy. 1969 Op. Att'y Gen. No. 69-364.   Fee for issuance of criminal warrant.   - Affiant (prosecutor) may not be required to pay the fee for the issuance of a criminal warrant at the time of such issuance. A clear intent is shown to determine the responsibility for such payment at a subsequent time than at the time of the issuance of the criminal warrant. 1969 Op. Att'y Gen. No. 69-364.   RESEARCH REFERENCES   ALR.   - Appealability of order or judgment awarding or denying costs but making no other adjudication, 54 A.L.R.2d 927.