I Violated Probation. What Now?

In Georgia, when someone violates probation for a misdemeanor offense, the consequences will vary depending on the circumstances of the alleged violation and the specific terms and conditions of the probation. The most common offenses for probation involve missing scheduled appointments with probation officers and testing positive for a substance that the probationer is to cease using per the original probation conditions (usually illegal drugs and alcohol). There are two main outcomes: 1) you can agree to the terms that probation recommends in the sentencing or 2) hold a hearing in front of a judge. Generally speaking, probation recommends revoking a certain amount of time on probation meaning if probation is recommending to revoke 30 days, then the probationer would spend 30 days in custody. The second option is to hold a hearing. During this hearing, the attorney generally argues for a less harsh sentence, minimizing additional jail time and other extra conditions that may be imposed. It’s important that if you violate probation, you contact our office IMMEDIATELY to handle your case.

Protect Yourself from Financial Transaction Card Theft in Georgia

We get calls all the time from people who have been charged in Georgia with taking your financial transaction (debit/credit) card information after you have voluntarily provided it to a business. You may have paid at the pump at a gas station, given your card to a fast food employee at the counter or a drive thru, or even paid for a product or service online only to find out that card has been compromised and unauthorized charges were placed on it.

Helpful tips to protect yourself from Financial Transaction Card theft!

But that’s all right. You can protect your financial transaction cards from theft in Georgia by following some basic steps.

  1. Be vigilant about checking your cards for unauthorized purchases. Every bank and credit card company has the ability to create an account where you can monitor your cards at your convenience. Depending on your activities that may be a daily monitoring or less frequently if you choose.
  2. Always choose credit over debit if that is an option with your debit card. Purchasing as a credit card offers additional protections that using a debit card does not.
  3. If you “pay at the pump” make sure the pump has not been tampered with. Most gas stations use tape to determine whether that pump has been compromised. If that tape has been broken, do not use your card at that pump.
  4. Be careful when you give your card to someone who takes your card from you to process payment. They could be copying your card information, taking pictures of your card, or even using your card in the time they have it in their possession.
  5. Make sure your PIN and passwords are secure. Do not use common PIN numbers or passwords. Change your passwords regularly. There are sites on the Internet that will tell you if a password you use has been compromised. Check those sites regularly. Consider using a password manager to manage your Internet presence.
  6. If you receive strange mail regarding accounts you have not opened or activated, do not ignore them, that could be someone attempting to steal your identity.

Give us a call today if you find yourself in a situation like this.

The best way to protect yourself from financial transaction card theft in Georgia is to be vigilant. Stay on top of your accounts. Monitor your activity. If you see something out of the ordinary, report it immediately. If you have any questions regarding your rights if your card information has been stolen, call our office at 404-581-0999. If you know where your card information was stolen, call the police.

Theft by Receiving

Everyone knows you can be arrested, and subsequently prosecuted, for taking something that doesn’t belong to you. But what about receivingsomething that doesn’t belong to you?

What Does This Mean?

Yep, you can be arrested for that, too. Welcome to the world of theft by receiving. Under Georgia law, you can be arrested for “receiving, disposing of, or retaining stolen property”. Sounds straight forward, right? But here’s the catch: the State has to prove that you (the accused) knewor should have known the property was stolen and that you did not intend to give the property back to its rightful owner.

Confusing? Let me explain using two hypothetical scenarios.

iPhone Gift

Your significant other gives you a present for your 3 month anniversary. Inside the wrapped package is the iPhone you’ve dropped not-so-subtle hints about wanting for your anniversary. Although grateful for the gesture, you’re a bit confused about why the iPhone isn’t in Apple factory packaging. Your significant other assures you they took it out of the box so it would fit in the gift box they wrapped for you.

A few weeks later your significant other is taken into custody on multiple theft by taking warrants. Turns out they’ve been involved in an iPhone theft ring the entire time you’ve been dating. The State then executes a theft by receiving warrant for your arrest because you have one of the stolen iPhones.

At trial,the prosecutor seeks to present evidence that you knew or should have known the iPhone was stolen. Pursuant to case law, they point to “circumstance[(s) that]would excite suspicion in the mind of an ordinary person.”[1]They’ll point out to the jury that the iPhone was not in factory packaging when you received it and, after all, how could you not have known your significant other was involved in a theft ring?

What’s My Defense?

As your attorney my primary defense on your behalf would be that you simply did not know the iPhone was stolen.Moreover, the circumstances do not indicate that you should have known the iPhone was stolen. You assumed they purchased the phone with their own money because your significant other is gainfully employed. They also explained away the iPhone not being in factory packaging as a consequence of fitting in the gift box. Most importantly, you have only been dating for three months, so you ultimately did not know them well enough to discover their criminal activity.

Used Car Purchase

After being found not guilty of theft by receiving the iPhone you decide to treat yourself by purchasing a car. You’re on a budget, so you’re looking for a well-maintained used car. After browsing listings on Autotrader, you decide to check one out in person. The car is perfect: low mileage, clean, even has that new car smell. The only weird thing is that the car is missing a VIN. But you found the car on Autotrader and it’s at a dealership, so you conclude it must be legitimate. Besides, you reallywant this car.

Shoving your suspicions aside, you decide to buy the car. Soon after rolling it off the lot you spy a police car in your rear-view mirror. Its blue lights activate within seconds. You pull off to the shoulder, totally confused as to why you’re being stopped.The police officer approaches your rolled-down window and asks if you’re aware the vehicle you’re driving has been reported stolen. You tell him you had no idea, but he takes you in to custody anyway on a theft by receiving warrant.

Telling the jury you didn’t know the car was stolen is not a convincing defense this time around. The jury finds you guilty on the basis you should have known the car was stolen because the car didn’t have a VIN when you purchased it. Here, knowledge of stolen property is inferred by circumstances that “excite suspicion in the mind of an ordinary person”.[2]

Don’t Take It!

Moral of the story: do not buy or keep anything you think could have been stolen because,even if you did not steal it yourself, you could be arrested for merely possessing stolen property.

If you or someone you know has been charged with theft by receiving contact our office today for a free consultation. We can help you fight your charges.

by Sarah Armstrong 

[1] Thomas v. State, 270 Ga.App. 181, 606 S.E.2d 275 (2004).

[2] Id.

Financial Transaction Card Theft

Financial Transaction Card Theft is the forgery crime we do the second most consults for in our office. It generally involves someone who takes the debit or credit card or the information on the debit/credit card of another with the plan to use that information later for their own benefit or to give or sell that information to another. Financial Transaction Card Theft is defined in O.C.G.A.16-9-31.

What is Financial Card Theft?

Financial Transaction Card Theft in Georgia occurs when:

A person takes, obtains, or withholds a financial transaction card from the person, possession, custody, or control of another without the cardholder’s consent; or who, with knowledge that it has been so taken, obtained, or withheld, receives the financial transaction card with intent to use it or to sell it or to transfer it to a person other than the issuer or the cardholder;

  • A person receives a financial transaction card that he knows to have been lost, mislaid, or delivered under a mistake as to the identity or address of the cardholder and he retains possession with intent to use it or sell it or to transfer it to a person other than the issuer or the cardholder;
  • A person, not being the issuer,sells a financial transaction card or buys a financial transaction card from aperson other than the issuer; or
  • A person not being the issuer,during any 12 month period receives two or more financial transaction cards inthe names of persons which he has reason to know were taken or retained undercircumstances which constitute a violation of theft by taking or financial cardtransaction theft.

What’s the Punishment? 

Financial Transaction Card Theft in Georgia is a felony punishable by at least one year imprisonment with a maximum punishment of three years imprisonment and a $5,000 fine.

Call us today

If you’ve been charged with financial card transaction theft in Georgia it is important that you contact an attorney immediately to go over potential defenses in your case. Our team of six attorneys is experienced in defending these cases and are available today for a free consultation. Please call us at 404-581-0999 to schedule a consultation today.

by Ryan Walsh 

Shoplifting in Georgia Part III

Welcome to the third entry in a multi-part blog series about misdemeanor shoplifting in Georgia. We discussed what constitutes shoplifting under Georgia law, what to expect in court after you’ve been arrested for shoplifting, and what sentence you may receive if you either plead guilty or are found guilty of shoplifting (fingers crossed for a Diversion offer from the State).

Civil Demand Letters

Today I want to talk about Civil Demand Letters. Let’s say you have been accused of shoplifting from Wal Mart. You bonded out of jail and hired the Law Office of Scott Smith to defend you, so you’re feeling relieved and hopeful about resolving your case.

Then one day, soon after your arrest, you receive a letter in the mail from Wal Mart’s Corporate Loss Prevention Office. The letter is about the shoplifting accusation. In strongly-worded terms, it says Wal Mart is prepared to seek civil judgement against you in the monetary amount of the item (or items) you’re accused of stealing.

Scared and confused, you call your attorney at Scott Smith’s Office. After all, your attorney is taking care of the shoplifting so why is Wal Mart even contacting you? This is a scenario I handle frequently with clients accused of shoplifting. And it’s a confusing one. That’s because shoplifting charges exist in the worlds of both criminal and civil law.

What Does This Mean?

The State of Georgia can pursue criminal charges against you for (allegedly) shoplifting from Wal Mart. Criminal charges contemplate the deprivation of your freedom, meaning the worst-case scenario would be going to jail.  At the same time, Wal Mart, as a civil plaintiff, can sue you for damages (the idea being they suffered a financial loss from you stealing their merchandise). Unlike criminal charges, civil damages are for money. So Wal Mart would sue you for the cost of the item(s) you’re accused of stealing. Even more confusing, Wal Mart can sue you for the cost of the item(s) you allegedly stole even if they got the item back, or even if the item never left the store.

Often, these strongly-worded, bullying letters make a scary situation for my clients even scarier. But I’m here to tell you not to worry.

Do Not Worry

In a shoplifting case, your main concern is the criminal charge. With Scott Smith’s Office representing you, your criminal charge will easily be resolved. Wal Mart can, indeed, take action to sue you for monetary damages in the amount of the item you allegedly stole. But in the 18 years this office has existed (and in my two years of practicing criminal law), we have never seen a big store like Wal Mart actually sue for civil damages. That’s partially because the filing fee alone (to file suit in court) is more than the amount of money they’d win at trial.

Essentially, stores like Wal Mart send these letters in an effort to intimate people into paying them money. Moreover, some of my clients have responded to the letters by sending money thinking that doing so will resolve their case, not realizing the criminal charge has nothing to do with the civil demand letter.

What Do I Do?

In these situations I advise my clients that I will call the corporate loss prevention office to tell them my client is represented by counsel. That way all letters are sent to me rather than my client (which eases a lot of stress). I also advise my client not to pay the money demanded in the letters. This is important to defending your case, as the State could use that payment as an admission of guilt against you at trial. Finally, note that stores like Wal Mart only have two years to file suit against you for civil damages suffered as a result of your alleged shoplifting.

If you or someone you know has received a civil demand letter contact our office today for a free consultation.

by Sarah Armstrong 

First Offender Sentencing in Georgia

First offender treatment is available in Georgia for anyone who has not been previously convicted of a felony and is not charged with a serious violent felony. Serious violent felonies are murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Anyone charged with one of those offenses is automatically ineligible for first offender unless the charge is reduced to a lesser offense.

If a defendant receives first offender treatment, it can be both a blessing and a curse. If there are no issues during the period of probation, then no official conviction will ever be reported and the record itself will seal from public view. However, if the defendant commits a new offense while on probation or has any issues at all, then the judge has discretion to revoke the first offender status and re-sentence the defendant up the maximum sentence allowed by law.

While serving the sentence which will undoubtedly involve a period of probation, the defendant is not technically convicted of a crime but still cannot possess a firearm. After successful completion, all gun rights are restored.

Finally, first offender status can be granted retroactively if the defendant was eligible for first offender treatment at the time of the original plea but was not informed of his or her eligibility. Still, there is discretion, and the judge must find by a preponderance of the evidence that the ends of justice and the welfare of society are served by granting retroactive first offender status.

If you are charged with a crime in Georgia, then you should always consult with an attorney as to whether you are a candidate for first offender treatment. If you have already pled guilty, then you should still reach out to discuss whether you can receive retroactive first offender treatment. Give us a call today at 404-581-0999.

VIDEO – Seizure and the 4th Amendment under Georgia Criminal Law

by Ryan Walsh and Scott Smith

You’re sitting in a park with friends. An officer comes up to you and asks you if you’ve been smoking weed. You say no, but they place you in handcuffs while they search the area. Is this legal? What are your rights? The 4th amendment’s protection against unreasonable seizures is the topic of today’s Peach State Lawyer video blog.

Hello, I’m Scott Smith.

The Fourth Amendment of the United States Constitution prevents the government from unreasonable seizures without a warrant. A seizure is a restriction on your freedom.

In order for you to be seized under the fourth amendment, the officer must have an arrest warrant, or have a legal reason to continue to detain you. Whether the officer has that reason depends on the interaction between you and the police officer.

Lets go back to the park example.

The officer comes up to you and He says hey, how you doing? He just asks if you’ve been smoking weed, but does nothing more. You’re free to respond to him or not. You’re free to walk away. This type of encounter is a tier 1 encounter. It can happen at any time.

But what if you’re sitting in the park and the officer says, hey, I smell marijuana over here. Are you guys smoking? Sit right here while we investigate. Is this seizure legal? The United States Supreme Court created this second tier of police-citizen encounters in the case of Terry vs. Ohio. It’s called a tier 2 encounter or Terry stop, and is lawful only if the officer has reasonable articulable suspicion that a crime has been committed.

You can’t leave in this situation, but the officer must also be in active investigation to find evidence of the specific criminal activity for which they’ve detained you.

Finally, you’re back in the park and the officer says, hey, I smell marijuana, are you guys smoking? Immediately, the officer places you in handcuffs while they look for evidence of weed. This is what’s called a tier 3 stop, which is the same as an arrest. An officer can’t arrest you without probable cause. Whether you’re under arrest depends on the officer’s statements and actions. Have they told you you are under arrest? Have they physically restricted your freedom? These factors and more are used to determine whether the encounter has escalated to this level.

Remember, in all situations the police officer’s job is to find evidence of criminal activity. Anything you say or do can be used against you later. Politely decline consent to search. Politely decline to answer any questions. Tell the officer you want to speak with your attorney.

The attorneys at the law offices of W. Scott Smith specialize in seizure issues. We’re available 24 hours a day, 7 days a week for free consultations. If you feel you’ve been arrested unlawfully, call us today at 404-581-0999. Thank you.


Restoration of Rights and Pardons from the State of Georgia

by Mary Agramonte

Mary Agramonte is an attorney with W. Scott Smith P.C.

Mary Agramonte is an attorney with W. Scott Smith P.C.

A felony conviction on your record comes with many consequences. You served the time, but now you are finding more and more ways that your record is stopping you from getting to where you want to be. For example, convicted felons lose various civil and political rights. Felons cannot vote while they are still incarcerated or on parole or probation. A convicted felon is unable to run for and hold public office or serve on a jury.

In Georgia, felons can apply to restore these civil rights that were lost at the time of their conviction. The right to vote is automatically restored upon completion of the sentence. However, if you are looking to restore your civil and political rights, a special application must be submitted asking the State of Georgia to allow you to serve on a jury and hold a public office. To be eligible to have your civil and political rights restored, you must have completed your sentence within two (2) years prior to applying, and you must demonstrate that you have been living a law-abiding life. There is no fee to apply to have your civil and political rights restored through the State Board of Pardons and Paroles.

If you are finding that your criminal history is following you, but that you are not eligible for Record Restriction, which is Georgia’s version of expungement, Georgia Record Restriction Blog there may be a way for you to advance in your employment and education, despite the felony conviction on your record. In limited circumstances, the State of Georgia can pardon your offense, which is an official forgiveness granted to you. The pardon does not expunge or erase the crime from your record. However, a pardon will serve as an Official Statement attached to your criminal record that states the State of Georgia has pardoned, or forgiven, your crime. The State will make this decision based on the fact that you have maintained a good reputation after completing your sentence, and have truly changed your life after the conviction. Pardons have a better chance of being granted if there is clear proof that the felony is disallowing your qualification for employment in your chosen field. An official pardon will also automatically restore your civil and political rights. In order to apply for a pardon, you must have completed your sentence at least five years ago, and have not gotten into trouble at all in the last five years. All restitution must be paid in full by the time you apply.  Letters of recommendation, school documents, resumes, and awards and certificates, are all helpful to show the State how important a pardon would be in your life.

There is no fee and the State uses the same application for restoring civil and political rights, and for pardons. The application can be found here: Restoration of Rights Application

Our law firm consists of seven criminal defense attorneys who represent individuals facing felony and misdemeanor charges in Georgia. We hope this information helps you restore your civil or political rights in Georgia. If you are currently facing criminal charges, our knowledgeable and experienced criminal defense lawyers have what it takes to defend against the most serious offenses. Call us today for a free consultation at 404-581-0999.

VIDEO – Atlanta, Georgia Theft by Shoplifting Charges – Dunwoody, Alpharetta, Kennesaw

I’ve received theft by shoplifting charges in Georgia, but my court notice says Dunwoody Municipal Court, what’s happening here?

Hello, I’m attorney Scott Smith and I’m here today to talk with you about shoplifting charges. We see a lot of theft by shoplifting arrests in metro Atlanta due to the number of shopping malls in the area. Lenox Mall, Phipps, Atlantic Station, Perimeter Mall, North Point Mall, Town Center, and all the other malls in the Atlanta area.

We also see a lot of shoplifting charges coming from stores like Walmart, Marshall’s, and TJ Maxx.

Many of these cases will originate in municipal courts like Atlanta, Dunwoody, Alpharetta, and Kennesaw.

A theft by shoplifting charge in Georgia can be accused as a misdemeanor or a felony depending on: the amount alleged to have been taken, the number of shoplifting convictions showing on your criminal history, and whether there was a pattern of recent shoplifting activity.

Shoplifting cases generally have two components. The first part is the criminal case. But often folks arrested for theft by shoplifting will receive a letter in the mail from law firms or collection agencies on behalf of the store asking for a payment for a civil penalty. We urge anyone watching this to consult with a Georgia attorney before making any payment to a law firm or collection agency due to this shoplifting charge. It could have an impact on your case.

It is important to state people who shoplift are not bad people. Generally the case comes down to one of three things. The person charged is sometimes depressed. It was an honest mistake such as an accidental concealment or not actually taking the item. Or finally the person thought they needed the item to survive or they were taking it for thrills. Ninety percent of the people we represent fall within the first two categories, depression or an honest mistake.

There are many was to resolve your theft by shoplifting charges in Georgia. Our office of experienced Georgia shoplifting attorneys can evaluate your case and tell you about potential defenses and outcomes. Let us help you today. Call our office at 404-581-0999. Thank you.

VIDEO – Your Right to Remain Silent!

by  Scott Smith and Ryan Walsh

What do you do when the police begin to ask you questioning in relation to a criminal investigation? We are all familiar with those magic words we hear so often in television and film. You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney.
That’s the beginning of the Miranda warning, a warning that must be given in any situation where a government agent or police officer has placed you in custody, is questioning you, and seeks to admit those responses into evidence against you at trial. What most of us don’t realize is that warning doesn’t have to be given in every situation where you are being questioned. For the Miranda warning to apply, the Georgia government agent or police office must be questioning you while you are in custody. Custody is a legal term that doesn’t have an exact meaning. It is determined by looking at a totality of the circumstances surrounding the questioning.
Circumstances that impact whether you are deemed to be in custody to trigger a Miranda warning include:
  • Who asked the questions?
  • How many officers were present?
  • Were any non-law enforcement officials or government agents present?
  • Did the officer tell the suspect the interview was voluntary?
  • Where did the questioning take place?
  • Did the officer use any physical restraints, like handcuffs?
  • How long was the conversation?
  • Was the suspect free to leave at the end of the conversation?
These factors, along with others, are things the court looks at when determining if it was necessary for a Miranda warning to be read. Failure of the investigative official or government agent to read your Miranda rights does not necessarily mean the charges against you will be dropped. It just means your responses to those questions that violated your rights will not be admissible in court.
You don’t have to wait to hear those words that begin a Miranda warning to exercise your right not to talk to the police or any other investigative authority. Any person who is being stopped, detained, or investigated for the commission of a crime has no duty to answer any questions asked of them by any law enforcement or investigative official of Georgia or any state in the United States. And at W. Scott Smith, PC, the Peach State Lawyer, we advise all our current and potential clients to politely decline to answer any questions until after speaking with an attorney about the facts and circumstances surrounding the questioning.
We see the scenario play out in consultations every day. A Georgia officer walks up to the driver’s side of our potential client’s vehicle and asks “Do you know how fast you were going?” Or “How much have you had to drink tonight?” Our immediate instinct is to think we’re caught; let’s embellish the truth a bit. And instead of telling the officer ‘I politely refuse to answer any questions or exactly seventy-four miles per hour, Officer’, you make up a number 5-10 miles per hour over the speed limit, or respond with the ever-popular ‘two drinks.’ At this point the speeding case is over. You’ve admitted to violating at least one Georgia speeding statute. And in regards to the investigation into Driving under the Influence of Alcohol, we’ve given the officer an admission of alcohol consumption that may give them probable cause to arrest you for DUI in conjunction with any traffic infractions.
The reason we advise our clients to politely refuse to answer questions is because these officers are not on your side. They aren’t trying to find a reason not to cite you, not to arrest you, not to take warrants out against you. Their job is to gather evidence of criminal activity and to determine who most likely committed the crime. Georgia law enforcement officers are trained to ask specific, pointed, leading questions to get you to make admissions that could lead to you being charged with a crime. Those questions are designed for only one reason, and that is to gather information that can ultimately be used against you. DO NOT help them with their job. Even if you know you are one hundred percent innocent in the circumstances surrounding the Georgia law enforcement officer’s questions, politely decline their questions, tell them you want a lawyer, and let them release or arrest you.
Answering police officers questions without an attorney present will not help your case. Telling an officer you only had two drinks, or telling an officer you don’t have any marijuana on you but you smoked earlier, does not let them know that you were safe to drive or that you aren’t guilty of possession of marijuana. It tells them that you’re willing to voluntarily provide them with evidence they are going to use against you in their DUI or Drug investigation.
If you have any questions about your rights, if you’ve been contacted by law enforcement and asked to give a statement, or you’ve been arrested and questioned, you must contact us immediately. It is imperative that an experienced criminal defense attorney assess your situation, prevent further statements, and see if your rights have been violated in prior questioning. Call The Peach State Lawyer today at 404-581-0999 for a free consultation.