Elder Abuse in Cobb County – Georgia Criminal Attorney

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If you are charged with Elder Abuse in Cobb County, it is imperative that you contact an attorney immediately. Do not talk to the police or answer any questions without an attorney.

The Cobb County District Attorney’s office has a specialized unit that prosecutes Elder Abuse cases.

What is Elder Abuse?

An elder is a person 65 or older. O.C.G.A. 16-5-100(4)

There are several different ways you can be charged with Elder Abuse in Cobb County.

  1. Neglect – When guardian or other person supervising welfare of having immediate charge, control, or custody willfully deprives a disabled adult, elder person, or resident of health care, shelter, or necessary sustenance to the extent that the health of well-being of such person is jeopardized. O.C.G.A. 16-5-101(a)
  2. Exploit – Any person who knowingly and willfully exploits, willfully inflicts physical pain or injury, sexual abuse, mental anguish, or unreasonable confinement; or willfully deprives of essential a disabled adult, elder person, or resident. O.C.G.A. 16-5-102(a)
  3. Intimidate – Any person who threatens, intimidates, or attempts to intimidate a disabled adult, elder person or resident who is the subject of a report made pursuant to Chapter 5 of Title 30 or Article 4 of Chapter 8 of Title 31, or any other person cooperating with an investigation conduct pursuant to this section.
  4. Obstruct – Any person who willfully and knowingly obstructs or in any way impedes an investigation conducted pursuant to 5 of Title 30 or Article 4 of Chapter 8 at Title 31.

So what about if you work with the person charged with elder abuse? IF you are an owner, officer, administrator, board member, employee, or agent of a long term care facility then you are not liable for the actions of another unless you knew or were willful to the abuse, neglect, or exploitation. O.C.G.A. 16-5-103.

If you are charged with Elder Abuse in Cobb County, please do the following:

  1. Call an attorney who can handle an Elder Abuse case.
  2. Do not talk to the police without an attorney present.
  3. Do not talk to any of the witnesses or victim. Let you attorney handle any interviews.
  4. Do not in anyway obstruct or impede the police investigation.
  5. Make a list of any witnesses who may help your case and turn that list over to your attorney.

The punishment for Elder Abuse in Cobb County by either Neglect or Exploitation is 1 to 20 years in the Georgia prison system and up to a $ 50,000 fine. O.C.G.A. 16-5-101(d); 16-5-102(a).

The punishment for Elder Abuse in Cobb County by either Intimidation or Obstruction is a high and aggravated misdemeanor. O.C.G.A. 16-5-102(b)(c)

If you are charged with Elder Abuse in Cobb County, it is imperative that you get an attorney immediately. We will be glad to sit down with you anytime for a free consultation. Call our office 24/7 at 404-581-0999.

Kidnapping in Georgia – Criminal Defense Attorney

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By: Mary Agramonte

Georgia law states that kidnapping occurs when someone abducts or steals away another person without lawful authority, and holds such person against their will. This is the more obvious way someone can be arrested and charged with Kidnapping. You may be surprised, however, that actions significantly less than actually stealing someone away will also constitute Kidnapping in Georgia. This is because Georgia law criminalizes ANY slight movement of another person. There is no minimum requirement for distance needed to constitute Kidnapping. This means a kidnapping can even occur when you move someone from room to room in their own house, or even when a person is moved by only a few inches.

            Compare these two scenarios.  If you push someone and they fall to the side, you have been responsible for a SLIGHT movement of another person. However, Georgia law will treat this action as “merely incidental” to the commission of a battery and this would NOT be kidnapping in Georgia.  Compare that movement to the following scenario: someone enters into the back of a restaurant to steal from a safe, and an employee stands in front of the safe to guard it. If you place your hands on them and move them to the side to gain access to the safe, then the crime of Kidnapping has occurred. This happens even if you gently move them two inches to the side to gain access to the safe. The difference lies within the Kidnapping statute, codified at O.C.G.A. § 16-5-40. A slight movement of another person is NOT merely incidental to commission of another crime, and thus constitutes Kidnapping if the movement:

1) is made to conceal or isolate the victim;

2) makes commission of another crime substantially easier;

3) lessens risk of detection; or

4) is for the purpose of avoiding detection.

What is the sentence for Kidnapping in Georgia?

            Kidnapping is one of the most serious crimes to be charged with in Georgia. Not only is it a felony offense, if there is a conviction, the sentence typically involves many years in prison. If someone is convicted of Kidnapping (of someone 14 years or older), the sentence is 10-20 years in prison. If the conviction is for Kidnapping and involves someone less than 14 years old, it is sentence of 25 years to life. The sentence is much worse if there is allegations of an injury or ransom involved.

Kidnapping with Injury

            One of the more troubling aspects of Georgia law as it relates to Kidnapping is when it involves an injury. If the person is convicted of Kidnapping with Injury, it is a mandatory life or death sentence. The injury does not have to be serious: scratches or bruises are sufficient. This means the court lacks all discretion to give a shorter sentence even for minimal injuries.Due to the mandatory life in prison sentence of Kidnapping with Injury conviction, it is imperative to have a skilled criminal defense team to defend against the charges at the onset of arrest.

Kidnapping for Ransom

            Georgia law treats Kidnapping for Ransom the same as it does Kidnapping with Injury. The sentence in this situation is mandatory life in prison, or death, if the person is convicted.

If you or a loved one has been arrested for the crime of Kidnapping in Georgia, it is imperative to have a team of criminal defense attorneys on your side to put together a robust defense at the onset of the arrest. While stakes are extremely high in these cases, W. Scott Smith has successfully defended numerous Kidnapping cases in Georgia. For a FREE CONSULTATION, call us today at 404-581-0999.

Georgia Criminal Law – Drug Weight

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In Georgia, there are many different kinds of drug charges that differ in a multitude of things such as the penalty. A misdemeanor drug charge can result in up to a $1000 fine excluding surcharges and up to one year in jail. A felony drug charge can result in 1 to 15 years, and even up to 30 years or life in prison depending on the charge and/or quantity of drugs. 

The quantity of drugs you’re charged with makes an enormous difference in the penalty and how the case proceeds. For example, you can be charged with trafficking marijuana if you possess more than 10 pounds of marijuana. If you possess somewhere between 10 pounds and 2,000 pounds, the minimum sentence is 5 years. If you possess somewhere between 2,000 pounds and 10,000 pounds, the minimum sentence is 7 years. And lastly, if you possess 10,000 pounds or more, the minimum sentence is 15 years. Therefore, the amount/weight of drugs you are found to possess is crucial to the defense of your case.

A multitude of things can work against you and your case. One very important factor can be the excess water weight found in drugs. Excess water can be found in drugs such as cannabis and can lose around two thirds of its weight when dried out. This factor can negatively impact your Georgia case because the excess water weight can push the weight from a non-trafficking amount to a trafficking amount or from a small drug trafficking charge to a higher charge. 

Another factor that can work against your case is the scale used to measure the drugs. I’ve had the opportunity to observe a scale used at the jail. A vital thing to remember is that a large portion of large scales are not correctly calibrated. This is important for your defense because you can attack the validity of the scale to work in favor of your case. Further, there can be times where the scale is not properly cleaned, leaving residue from other cases on the scale, which can potentially increase the amount of drugs you are charged with. 

Although there can be a lot of factors working against you in a simple drug charge and/or a drug trafficking charge, there are a lot of defense strategies that can reduce the sentence or even get your case dismissed. For example, we can file a motion under the authority of Williams v. State Ga. 749, 312 S.E.2d 40 (1983) to inspect and examine everything that was found and hire our own expert to examine the contents (sample of our motion down below). 

Should you have a trafficking cocaine or trafficking drugs case please inquire of your legal counsel about the weight of the marijuana or weight of the cocaine.  If you have a drug trafficking warrant or a loved one in custody on a drug trafficking charge and they are unrepresented in Fulton County, Cobb County, Dekalb County, Gwinnett County, Cherokee County, or Forsyth County please call us.

The experienced lawyers at our PeachStateLawyer firm have been winning serious and big drug cases for over twenty years. Call us today at 404-581-0999 for a free consultation to see how we can help you win your case. 

Georgia Criminal Law – How to Withdraw a Guilty Plea

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The vast majority of criminal cases are resolved through guilty pleas. Some people take guilty pleas because they are guilty as a matter of fact and law, while others take pleas even though they are innocent. But why would an innocent person plead guilty to a criminal charge? Trials can be a risky proposition. A plea deal that involves no jail time, reduced charges, or other mitigated punishment may be an attractive offer when faced with the possibility of losing at trial and being hit with a “trial tax.” A trial tax is the idea that if you go to trial and lose you will be punished more harshly by the judge than if you had just taken a plea. Due to the large percentage of cases that result in guilty pleas, there are of course a percentage of those cases where the person, for whatever reason, decides they want to withdraw their guilty plea, either before or after sentencing. This article serves to explore whether a guilty plea can be withdrawn, and if so, under what circumstances. 

Before Sentencing

The person accused has an unlimited right to withdraw a guilty plea until a sentence is pronounced. O.C.G.A. § 17-7-93 (b). This means a person may withdraw a plea of guilty at any time before a judgment is announced (orally by the court) and then plead not guilty. But, once a judgment is announced, a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed on appeal unless there is a manifest abuse of discretion. 

After Sentencing

Because of the time and care taken by the court to ensure each plea of guilty is entered freely, knowingly, and voluntarily, it is very difficult to withdraw a guilty plea after a sentence is pronounced. There are, however, a few limited circumstances in which a guilty plea may be withdrawn after the sentence is announced. 

The first is within the context of a negotiated plea. A negotiated plea is one where the prosecutor and defense have come to an agreement on the charge plead to and the terms of punishment to that charge. If a person enters a negotiated plea and the judge, in their discretion, sentences the person to anything different than the terms agreed upon (for better or for worse), the person has the right to withdraw their plea. The opposite is true in a non-negotiated plea, where the person pleads guilty to the offense but is asking the judge for punishment different from what the State is asking for. In a non-negotiated plea the defendant is stuck with whatever sentence the judge imposes. 

After a sentence is imposed, a court may allow the withdrawal of a guilty plea only to correct a “manifest injustice.” Examples of manifest injustice include, but are not limited to, the person being misled about the terms of the sentence, the person being threatened or forced by another to enter a plea, the person not being competent to enter a plea, newly discovered evidence if: (1) the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness, or any other circumstance indicated the plea was not entered freely, knowingly, or voluntarily.

A motion to withdraw a guilty plea must be filed within the same term of court in which judgment of conviction was entered. After the term of court expires (about every three months), the trial court’s jurisdiction ends and the defendant’s only remedy is to file a petition for writ of habeas corpus. The terms of court can be found within O.C.G.A. § 15-6-3. 

If a motion to withdraw a guilty plea is timely filed the court may, but is not required to (unless there are issues of fact to be decided), hold a hearing to determine whether the guilty plea should be withdrawn. When a defendant challenges the validity of his guilty plea, the State bears the burden of showing the plea was entered voluntarily and intelligently and that defendant had an understanding of the nature of the charges and the consequences of the plea. 

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll a local Atlanta attorney ready to aggressively fight on your behalf. 

Georgia Probation Bond Attorney

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As the ever-changing circumstances of the novel Coronavirus (COVID-19) continue to be reported, Chief Justice Harold Melton of the Supreme Court of Georgia declared a statewide judicial emergency due to the spread of the coronavirus throughout Georgia “and the potential infection of those who work in or are required to appear in our courts.”

The order says courts should prioritize matters such as cases “where an immediate liberty or safety concern is present requiring the attention of the court as soon as the court is available.”  We take this to mean bond hearings and first appearance hearings will go on and our firm will be present for these hearings. 

During times like this, probation violation hearings become complicated. Assuming you cannot hire a lawyer, the first thing you can do is call your probation officer and ask them to sign for a “consent to a probation bond”, which is typically rare, but we have been successful of late in Fulton, Cobb and Clayton counties in getting in touch with our client’s probation officers.  Then the challenge is to speak to a Judge and prosecutor to present a consent order. We have recently been successful in doing this and getting a signature bond for one of our clients in Fulton and Cobb counties. In one instance we were able to get a Cobb County Probation Officer to withdraw the warrants where we were able to show proof client paid his outstanding fees.  We can also file a motion for a probation bond. (See a sample of our motion for probation bond below).  Although therese are rare if the violation is not serious Judges are more likely to grant a probation bond than prior to the emergency we currently find ourselves in.

Although courts are closed for non-essential hearings, hearings on probation bond are still taking place. I can assure you that our firm remains dedicated to our founding principles of client service, respect, and integrity. We are still working hard to fight for your case and will continue to do so, despite these times. Know that you can count of the same level of quality delivered by the professionals you know and trust, as you always have.  Should you have a probation revocation warrant or a loved one in custody on a probation revocation in Fulton County, Cobb County, Dekalb County, Gwinnett County, Cherokee County, or Forsyth County please call us today at 404-581-0999.

Interference with Custody – Georgia Criminal Attorney

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By: Mary Agramonte

            In most divorce and child custody cases, the Judge will issue an order or decree for parents to abide by as it relates to the parenting time, visitation, and responsibilities for each parent. When one parent fails to follow the order, a family law case can quickly turn criminal. In Georgia, the crime is known as Interference with Custody and is codified at O.C.G.A. § 16–5–45. A criminal arrest and prosecution can occur when one parent keeps the child past the visitation time that was ordered in the plan.

Under O.C.G.A. § 16–5–45, a person can be charged with Interference with Custody when they knowingly or recklessly take or entice the child away from the individual who has lawful custody. In this scenario, a felony Kidnapping charge can also occur. A person commits crime of kidnapping when they steal away another person without lawful authority to do so.

            However, the more common way Georgia parents find themselves being arrested for Interference of Custody is where one parent intentionally retains possession of he child past the lawful visitation time disclosed in the order. This can even happen when the parent keeps the child an extra day past their mandated week or day of visitation.

            A third way a person can be charge with Interference with Custody occurs when he or she harbors a child who has run away. This means you can be charged under this statute even if you are not the parent. If a child runs away from home and stays at your house, you can be charged for harboring the run away and be subject to criminal penalties.

The Interference with Custody statute in Georgia applies to all children under the age of 17, or children under age of 18 if they are alleged to be a ‘dependent child or child in need of services.’

What is the punishment for Interference with Custody in Georgia?

On a first conviction, the case is treated as a misdemeanor, with the penalties to include one to five months in jail, and/or a fine between $200 and $500. On a second conviction, the case is still treated as a misdemeanor but will include a minimum three months in jail, up to 12 months, as well as a higher fine in the amount of at least $400.00. The stakes get much higher on a third conviction of Interference of Custody. In this instance, the person accused of Interfering with Custody will be charged with a Felony offense. Felonies are treated more harshly in the justice system, and Judges can sentence up to five years to serve on a third conviction.

Interstate Inference with Custody has Increased Penalties

A person commits the offense of Interstate Interference of Custody when without lawful authority to do so the person knowingly or recklessly takes or entices any minor away from the individual who has lawful custody of such minor, and in so doing brings the minor into Georgia or removes the minor  from Georgia. This can apply in child custody issues where the person keeps the child longer than the period of lawful visitation.  Interstate Interference of Custody is a felony in Georgia with a punishment, if convicted of the crime, of 1 to 5 years imprisonment.

Defenses to Interference with Custody include challenging the venue where the case is brought, meaning that jurisdiction has to be the correct county to be able to prosecute the person accused of the crime. For example, when a parent lawfully removes child from state, but unlawfully retains custody out of state, the county of custodial parent, would be venue of any criminal prosecution. Oftentimes the police get involved where the child is taken, and the defense can lie in what county brings the charges. Additionally, the substance of the child custody order or decree can offer defenses. As in all cases, each and every element of the statute has to be proven beyond a reasonable doubt in order to be convicted of any crime.

The purpose of the Georgia law criminalizing interference with custody is to protect custody interests of child’s lawful custodian from interference by another person. Child custody and divorce cases are not the only types of cases where the person can be charged under this statute. A person can be charged under this statute in child abduction scenarios, as well as situations where the child is in an unlawful physical relationship with an older person.

If you or a loved one has been charged with Interference of Custody, or have any questions about the crime in Georgia, call W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Georgia Criminal Law – Incest

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In major sex offenses, the person charged faces an uphill battle. These types of offenses are inflammatory in our society and many people rush to judgment, deeming the person guilty from the onset. The truth is there are people who are wrongly accused of committing these types of offenses. This article serves to explore the nature of the laws against incest, what the penalties are, and applicable defenses.

The Offense

Under O.C.G.A. § 16-6-22, a person commits the offense of incest when such person engages in sexual intercourse or sodomy, with a person he or she knows he or she is related to by blood or by marriage as follows:

  • Mother and child or stepchild;
  • Father and child or stepchild;
  • Siblings of the whole blood or half blood;
  • Grandparent and grandchild of the whole blood or half blood;
  • Aunt and niece or nephew of the whole blood or half blood; or
  • Uncle and niece or nephew of the whole blood or half blood

The Penalty

Incest is a felony and a conviction will result in between ten and thirty year’s imprisonment. If the victim was under the age of fourteen, the prison term is between twenty-five and fifty years. Furthermore, a person convicted of incest will be required to register as a sex offender.

Defenses

Before we discuss applicable defenses, it is important to know what is not a valid defense to a charge of incest. It is not a defense that the intercourse was consented to by the victim. Consent is invalid where the victim is under the age of fourteen because that child is mentally incapable of giving consent.

One applicable defense to a charge of incest is that no sexual intercourse or sodomy occurred. But how does someone prove something didn’t happen? Evidence tending to establish issues with the victim’s credibility, bias, motives, or perception are beneficial to the defense. Also, one should consider obtaining an expert witness to analyze the case. An expert can assist in performing or rebutting forensic examinations of the alleged victim.

Another possible defense is that the parties involved simply do not meet the relationship required by law. The law is very strict as to which relationships apply and if the relationship falls outside of those stated under the law, a charge of incest will not stand.

Finally, the State has to prove beyond a reasonable doubt that the defendant knows he or she is related to the other person. The law requires proof the defendant knew or should have known they are engaging in intercourse with someone who meets the relationship requirements. However, one cannot simply ignore such a relationship when, under the circumstances, the defendant should reasonably know of such as relationship.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll a local Atlanta attorney ready to aggressively fight on your behalf.

Can you get in trouble for bringing cigarettes or a cellphone to an inmate in Georgia?

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By: Mary Agramonte

            Georgia law has made it a felony for someone to give an inmate certain illicit items. These include guns, weapons, alcohol, drugs, tobacco and cellphones. If any of these items are given to an inmate without the warden’s permission, both the inmate and the person who gave it to the inmate, can be charged with a felony offense. This law is codified at O.C.G.A. § 42-5-18.

It is against the law for Inmates to possess certain items while in jail.

            If the inmate possesses a gun, weapon, alcohol, drugs, or tobacco, he or she can be convicted and imprisoned for 1 to 5 years (which can run consecutive to whatever sentence they are currently serving). Interestingly, if the person in jail is being held for a misdemeanor arrest or conviction, and is caught with a cell phone in violation of Georgia law, Georgia law can be more lenient as this offense is actually a misdemeanor. On the other hand, if the person is being held for a felony and is caught with a cell phone, it will be charged as a felony.

The person on the outside bringing the items can be punished more severely in Georgia.

            Another caveat is that Georgia law is that is treats more harshly the person bringing the items, than it does the inmate possessing them. If you are the one who brings the prohibited items in, or even attempts to do so, it is a mandatory minimum of two years to serve in prison (and all the way up to 10 years). The mandatory two years cannot be served on probation meaning it is a mandatory prison sentence. This includes weapons, drugs, and alcohol will all result in a mandatory two years in prison if the person is convicted of that crime. If it is only cigarettes or tobacco, then the sentence is slightly lighter in Georgia in that is a mandatory one to five years in that situation if the person is convicted at trial or plea.

What about drones?

            As technology develops more in the outside world, people are becoming creative in ways to bring prohibited items into jails and prisons. In this regard, the Georgia legislature has enacted laws to prevent the use of drones and other unmanned aircraft systems in either taking photos of jails and prisons, or using the unmanned aircraft to bring the banned items into the prison walls.  In this situation, it is a 1 to 5 year sentence to use the drone to take photos, and a 1 to 10 year offense to actually attempt to bring items into jail or prison. Both of these are considered felony offenses.

            Whether you or a loved one has been caught either possession the items while in prison, or bringing the items into the prison, there is hope. Experienced criminal defense attorneys can put together a defense to mitigate and protect your future. Call W. Scott Smith today for a FREE CONSULTATION at 404-581-0999.

Georgia Criminal Law – Possession of Tools

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Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

Examples of tools that can result in criminal charges are crowbars, hammers, and glass break devices as these are all commonly used in burglaries and thefts. You could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand, even if there is no theft. However, not only tools associated with burglary are criminalized.  For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

What is the sentence for Possession of Tools in Georgia?

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. (See O.C.G.A. § 16-7-20). Possession of tools is a felony offense, which means it is sentenced more harshly than misdemeanors. Felonies can take away your civil rights moving forward and can make finding employment very difficult. For example, if you are convicted of Possession of Tools, you immediately lose your right to vote and your ability to carry a firearm.

What are Possible Defenses to Possession of Tools in Georgia?

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you with a felony after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove that the accused actually possessed a tool, but the tool must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools in that situation. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case for the same reason: it is not a device commonly used to commit that crime.

The rule of lenity may also apply in felony Possession of Tools cases. This means that even if you are charged with a felony, Georgia law may require you be given a misdemeanor sentence. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

If you or a loved one has been arrested for POSSESSION OF TOOLS in the State of Georgia, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

Georgia Criminal Law – Possession of Firearm by Convicted Felon

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A felony conviction has serious consequences. It remains on your criminal record permanently, making jobs and housing extremely difficult to obtain. Aside from incarceration, probation, fines, counseling, and other conditions the sentencing judge may impose, a felony conviction also strips away certain constitutional rights. One of these rights is the right to possess a firearm. In enacting the below statute prohibiting the possession of a firearm by a convicted felon, the General Assembly has sought to keep guns out of the hands of those individuals who by their prior conduct have demonstrated they may not possess a firearm without being a threat to society. This article will explain the three key components of the criminal offense, the punishment, and defenses.

The Offense

It is illegal for any person who has been convicted of a felony to possess a firearm. O.C.G.A. § 16-11-131.

Felony convictions include: any person who is on felony first offender probation, felony conditional discharge probation, or has been convicted of a felony in Georgia or any other state (also includes U.S. territories and courts of foreign nations).

A “firearm,” includes any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge. Therefore, toys or non-functioning replicas do not qualify as weapons. However, it is important to note that even disassembled firearms or even projectiles by themselves constitute “firearms” under the statute.

To prove possession, the prosecution must establish has two requirements, a culpable mental state and the act of possessing a firearm. First, the prosecution must establish the person knowingly possessed  a firearm. Knowledge can be proven through direct evidence (person’s statement admitting possession) or through circumstantial evidence (firearm found on person’s bed side table and nobody else had access to the house). Possession can be further broken down into two categories, actual and constructive possession. Actual possession is what it sounds like. If you have a firearm in your hand (or holster, or in your waistband), you are in actual possession of a firearm. Constructive possession, however, is a situation where you have control or dominion over property without being in actual possession of it. For example, imagine you are seated in the front passenger seat of a vehicle along with the driver. The vehicle is pulled over, searched by police, and illegal drugs are found in the center console. Although neither you nor the driver was in actual possession of the drugs, you are both arguably in constructive possession of the drugs because of your mutual ability to access and control of the drugs.

Punishment

A person convicted of possession of a firearm by a convicted felon shall be sentenced to no less than one year and no more than ten years. If this is a second or subsequent conviction, the person shall be sentenced to prison for no less than five and no more than ten years. If the underlying felony was a “forcible felony” the person shall be sentenced to five years imprisonment. A forcible felony is defined as, “any felony involving the use or threat of physical force or violence against any person . . .”

Defenses

There are several defenses available to a person charged with this offense. One is to challenge the underlying conviction. If the conviction is not a felony or was a felony but was discharged under the First Offender Act or conditional discharge sentence, then there is no underlying felony. This offense also does not apply to those who have been convicted but had their convictions pardoned by the state.

The next available defense is to challenge the required mental state; that the person was “knowingly” in possession of a firearm. You cannot be in possession of something that you have no knowledge of.

The defense may also challenge whether the person was in constructive possession. In Harvey v. State, the court found insufficient evidence the defendant was in constructive possession of a firearm (by a convicted felon) even though defendant’s name appeared on documents in closet of apartment where firearm was found; the gun was found on the floor next to an unidentified individual, defendant’s name was not on the lease, and defendant had no belongings inside the apartment. 344 Ga.App. 7 (2017).

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.