Harassing Communications in Georgia

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by Mary Agramonte        

The State of Georgia has criminalized the offense of making harassing communications to another. There are several different acts that fall under this statute, codified at O.C.G.A. § 16-11-39.1. From phone contact to text messages to a multitude of other social media apps, it is unlawful to make harassing communications to another person. But what is considered harassing? And how much communication is too much before it becomes a criminal matter?

Under Georgia law, it is illegal to contact another person repeatedly via phone, e-mail, text message, or any other form of electronic communication for the purpose of harassing, threatening, or intimidating a person or family of such. This means that the State has to prove, beyond a reasonable doubt, that the purpose of the communication was to harass, threaten, or intimidate. This also means that more than one call or text has to occur under this subsection of the statute. In many cases, both lack of intent and lack of repetition is where the defense of the case will lie.

            On the other hand, you can also be arrested and charged for making Harassing Communication if in that call or text, you threaten bodily harm. This means you can also be charged under this statute if you made only one phone call, or sent one text, or one email if that one message was a threat of harm. Threatening communication or threatening harm to another is not typically protected by the First Amendment, and thus is not protected by our right to free speech. At times, however, the State gets this wrong and the communication is protected if there was no threat of harm.

            Harassing communications is a misdemeanor offense in Georgia, which means the maximum punishment is 12 months in jail and a $1,000 fine for each offense. The offense will be prosecuted in the county where either the person made the phone call or sent the text, or where the phone call or text was received.

            The offense of harassing communications does not merge with other offenses, which affects sentencing in criminal cases. For example, you can commit both a Terroristic Threat and a Harassing Communication simultaneously, but be charged and sentenced for both crimes, which can increase the overall sentence. You can learn more about Terroristic Threats here: https://www.peachstatelawyer.com/terroristic-threats-georgia/.

            There are several options and defenses in Harassing Communications cases in Georgia. Many counties in metro Atlanta and throughout Georgia offer Diversion programs for this charge. This means that in some situations, the criminal case can be dismissed after successfully completing a program that may involve classes and community service. In all criminal cases, jury and bench trials can be a great option to accomplish the goals of someone who has been wrongfully accused. If you or a loved one has been charged with Harassing Communications or Terroristic Threats in Georgia, call W. Scott Smith today for a FREE CONSULTATION at 404-581-0999.

Georgia Criminal Law – Auto Theft Offenses

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Georgia has several laws dealing with the theft of motor vehicles. This article serves to explain the nature of the offenses, possible punishment if convicted, and defenses to such charges.

Carjacking

Under O.C.G.A. § 16-5-44.1, a person commits the offense of vehicle hijacking when they take a car from another person by force and violence or intimidation, while in the possession of a firearm or weapon.

A person convicted of motor vehicle hijacking faces a 10 to 20 years imprisonment, and a fine ranging from $10,000 to $100,000. For a second conviction for carjacking, the new conviction results in a life in prison sentence plus a fine ranging from $100,000 to $500,000. It is not necessary that the defendant committed the prior carjacking in Georgia in order to receive a life sentence.

Motor Vehicle Theft

Unlike the above carjacking statute, there is no specific offense related to the nonviolent theft of an automobile. Rather, an individual who commits a nonviolent auto theft may be charged with “theft by taking” which O.C.G.A. 16-8-2, which makes it a crime for a person to “unlawfully take or, being in lawful possession thereof, unlawfully appropriate any property of another with the intention of depriving the owner of the property, regardless of the manner in which the property is taken or appropriated.”

As we can see, a person may be charged with theft by taking regardless of whether they took the property with or without permission of the owner, so long as the person takes the property with the intent to deprive the owner of the property. A common example of the former is when a person takes a vehicle with the permission of the owner, but then fails to return the vehicle to the owner.

This situation is also similar to the offense of “theft by conversion” which occurs when, being in legal possession of another’s property pursuant to an agreement (such as a lease or other rental agreement), converts the property to the person’s own use, in violation of the agreement. This is not a breach of contract issue but rather the punishment of depriving the owner of their property.

Punishment for Motor Vehicle Theft

O.C.G.A. § 16-8-12 provides sentencing guidelines for a defendant convicted of nonviolent motor vehicle theft, regardless of whether the defendant has been convicted of theft by taking or theft by conversion. The law creates different levels of punishment based upon the type of vehicle stolen.

Vehicles Used in Commercial Transportation of Cargo

O.C.G.A. § 16-8-12 (a)(8) provides, a person convicted of stealing a vehicle engaged in commercial transportation of cargo faces a minimum of 3 years imprisonment and a maximum of 10 years in addition to a fine of $5,000 to $50,000. A sentencing judge has the authority to place the defendant on probation or suspend the sentence in lieu of prison time. Furthermore, if the defendant has a commercial driver’s license (CDL), a conviction for commercial vehicle theft will cause a loss of their CDL.

Non-commercial Vehicles

If the vehicle at issue was not engaged in commercial transportation of cargo, the offense is punished based on the value of the vehicle. Pursuant to O.C.G.A. § 16-8-12 (a)(1), if the vehicle is valued at:

$1,500.01 to $5,000: 1-5 years in prison

$5,000 to $25,000: 1-10 years in prison, and

$25,000 or more: 2-20 years in prison

Interestingly, a sentencing judge has the ability to punish the offense as a misdemeanor, regardless of the value of the property. The maximum penalty for a misdemeanor conviction is one (1) year in jail and $1,000 fine, or both.  

Joy Riding

Georgia law prohibits joy riding under the criminal trespass statute rather then a specialized joy riding statute. Joyriding is commonly defined as the taking or driving someone else’s vehicle without their permission. Examples can include children taking their parent’s car or valets or mechanics driving the owners car without their permission. The key difference between joyriding and theft is the degree of intent. Joyriding does not require proof the person intended to deprive the owner of the vehicle permanently. Under O.C.G.A. § 16-7-21, a person commits criminal trespass by entering another person’s vehicle for an unlawful purpose or enters the vehicle of another after having been previously forbidden from doing so by the owner. Typically, joyriding is punished as a misdemeanor. It may, however, be punished as a felony if the defendant fails to return the vehicle after a significant period of time, the defendant intends to use the vehicle to commit a crime, or if the defendant damages the vehicle while joyriding.

Contact Us

If you or a loved one is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in various jurisdictions across Georgia.

Georgia Criminal Law Aggravated Battery Attorney

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Georgia Criminal Law – Aggravated Battery

The Offense

A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him/her of a member of his/her body, by rendering a member of his/her body useless, or by disfiguring his/her body or a member thereof. O.C.G.A. § 16-5-24.

 Intent

In order to sustain a conviction for aggravated battery, the State will have to prove the defendant acted with a particular mental state. Here, the mental state is “malice.” A person acts maliciously within the meaning of the aggravated-battery statute when he/she acts intentionally and without justification or serious provocation.  Hillsman v. State, 341 Ga.App. 543 (2017). The State is not required to show he/she intended the specific results of his/her conduct; rather, state is required to prove only that defendant acted maliciously when he engaged in that conduct. Bizzard v. State, 312 Ga.App. 185 (2011).  

Injury

What separates aggravated battery from the lesser-included offense of battery is the degree of injury suffered by the victim. Georgia courts have held the following injuries sufficient to constitute an aggravated battery conviction:

  • Nerve Damage
  • Memory Loss
  • Loss of Normal Brain Functioning
  • Vision Loss
  • Broken Finger, Nose, Teeth, Ears, and/or Wrist
  • Severe Bruising

The injuries do not need to be permanent (may be temporary) but must be greater than a superficial wound.

Punishment

Aggravated battery is a felony offense. As a result, the minimum punishment is one-year imprisonment.  The sentencing judge, however, has the discretion to impose a higher sentence depending on many factors, but especially the person’s criminal history and the existence of aggravating circumstances. Furthermore, Georgia law creates different degrees of punishment for an aggravated battery conviction if the victim falls into a certain classification.

  • Aggravated Battery – 1 to 20 Years Imprisonment
  • Aggravated Battery Upon a Public Safety Officer (While Engaged in Their Official Duties) – 10 to 20 Years Imprisonment and $2,000 Fine
    • If Defendant is 17 Years Old, Minimum is 3 Years
  • Aggravated Battery Against Person Who is 65 or Older – 5 to 20 Years Imprisonment
  • Aggravated Battery While in a Public Transit Vehicle or Station – 5 to 20 Years Imprisonment
  • Aggravated Battery Against a Student or Teacher (or Other School Personnel) Within a School Safety Zone – 5 to 20 Years Imprisonment
  • Aggravated Battery Against a Family Member – 3 to 20 Years Imprisonment

Contact Us

If you or a loved one is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in various jurisdictions across Georgia.

Jasper County Georgia Criminal Defense

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If you have been charged with a crime in Jasper County, then you have come to the right place. We specialize in criminal defense and stand ready to defend you. The first question that needs to be answered is where your case will be heard. If you are charged with a felony, then your case will begin in magistrate court and finish in superior court. The first appearance, initial bond hearing, and preliminary hearing are all heard by a magistrate judge at the Jasper County Jail located at 1551 GA-212 W, Monticello, GA 31064. After these initial hearings, your case will be transferred to Jasper County Superior Court in the Jasper County Courthouse located at 126 W Greene St., Monticello, GA 31064. The large courthouse which is on the Monticello town square, houses the Superior Court, Magistrate Court, Juvenile Court, and Probate Court of Jasper County.

Unlike some of the larger metropolitan counties, Jasper County does not have a state court so even misdemeanor offenses will be heard in the Superior Court if you wish to have a jury trial. If you are charged with a serious misdemeanor, then your case will go straight to Superior Court. Otherwise, your case will likely begin in Jasper County Probate Court where you can seek to negotiate lesser charges or have a bench trial where the judge hears the evidence and renders a decision.

If you are charged with a traffic ticket or low-level misdemeanor within the city limits of Monticello, your case will begin in the Municipal Court of Monticello located at 115 E Greene St., Monticello, GA 31064.

No matter where your case originates in Jasper County, we stand ready to defend you against any criminal charge.  Call us today at 404-581-0999 to ensure you get the best outcome possible.

Walton County Georgia Violent Crime

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If you are charged with a violent crime in Walton County, then you have come to the right place.  We have defended hundreds of violent charges ranging from simple battery to murder.  Walton County has no shortage of these cases, and we are often called to assist in defending these violent crime allegations.

The first step is to determine your charges which are usually stacked meaning that you can have 3 or more charges for one just one punch, kick or push.  The extent of the injury will largely dictate what you are charged with, but the alleged victim’s status can also play a role.  The alleged victim’s age, occupation, relationship to you, and the location of the incident all factor into the potential charge and corresponding penalties.

Regardless of your exact charge, we stand ready to assist in defending your case in Walton County.  If the alleged victim made a false allegation, then we look to the discredit the charge by presenting alibi evidence or witnesses who were present at the time of the alleged attack.  If there are no other witnesses, then it is just his or her word versus your word.  In those situations, we work to build up your character through your contacts in the community.  Simultaneously, we work to find discredit the alleged victim.  The reality of police work is that the person who makes the initial outcry (aka the 911 call) is usually the one who gets the labeled the victim while the other party gets hauled off to jail.  Of course, the officer is trained to look for injuries, but a savvy victim can injure himself or herself prior to the officer’s arrival just to add credibility to his or her story so injuries do not automatically equal guilt.

If you are not denying the violence, but instead seek to argue self-defense, then we argue that your actions were justified.  Georgia is a “Stand Your Ground” state that does not require you to retreat and allows you to defend yourself, your property, or even other people from what you believe to be an imminent threat of harm.  The amount of force used in those situations depends on the amount of force threatened by the other person.  These decisions are often made in the blink of an eye, and sometimes what you believed to be a threat turns out to be a cellphone instead of a gun.  Luckily, a reasonable mistake is still protected under the law.  How do you prove your actions were reasonable?  That requires the assistance of a skilled criminal defense attorney.

If you are charged with a crime of violence in Walton County, call our office today at 404-581-0999 for your free consultation.

Morgan County Georgia Drug Crime

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If you have been charged with a drug crime in Morgan County, you have come to right place. I-20 runs through Morgan County so a majority of drug cases originate from unlucky people who just happened to be passing through Morgan County on their way to one of a number of cities connected by I-20. You can almost guarantee that there will be one or more officers policing that strip of interstate at any given time.  Make no mistake about it, those officers are there to write traffic citations and will always have an eye towards sniffing out drugs in your vehicle.  This is how a majority of drug cases begin in any county, but Morgan County really capitalizes on its stretch of interstate.

So we will assume that if you are charged with a drug crime in Morgan County, that your case likely started as a result of an automobile search for the time being.  Please refer to our previous blogs if your case happens to be the result of some other encounter such as a search of your residence or an encounter with an officer on foot.

The first step in defending any automobile search is to attack the basis for the stop of the vehicle.  I.e. the officer had no reason to stop you and thus it was an illegal search and seizure based on a bad stop.  The second step is to determine how exactly the officer got his or her hands on the drugs.  Hopefully, you did not consent to the search or willingly hand over the drugs since the officer still needs a valid warrant (or likely one of a number of exceptions to the warrant requirement) to search your vehicle.  If you did consent, then you have waived any further argument about an unlawful search and seizure, but we can still attack the basis for the initial stop and attack your “consent” as being coerced by the officer.  There are a number of exceptions to the warrant requirement, but that is precisely the reason you consult with and ultimately hire the best defense attorney you can find.  For drug crimes in Morgan County, we’ll ensure you get the best possible outcome.  Call us today at 404-581-0999 for your free consultation.

Georgia Criminal Law – Felony Murder

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Georgia has several laws regarding homicide – the killing of another person. There are, however, many subtle nuances and distinctions separating murder, second degree murder, voluntary manslaughter, involuntary manslaughter, and felony murder from each other. This article aims to explore the offense of felony murder, limitations on prosecution, and punishment if convicted.

The Offense

Under O.C.G.A. § 16-5-1(c), a person commits the offense of felony murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.

Intent

“Malice” required for malice murder conviction consists of intent to kill and lack of provocation or justification. In the context of the statute on murder, a specific intent to kill is “express malice,” whereas an intent to commit acts with such a reckless disregard for human life as to show an abandoned and malignant heart amounts to “implied malice.” But, in felony murder, malice aforethought is implied by the intent to commit the underlying felony. Premeditation and/or motive is not an element of murder in Georgia.

Underlying Felony

The underlying felony for a felony murder conviction must be inherently dangerous to human life; for a felony to be considered inherently dangerous, it must be dangerous per se, or it must by its circumstances create a foreseeable risk of death. Examples include but are not limited to: robbery, rape, kidnapping, felony fleeing, burglary, arson, firearms offenses, narcotics offenses, and aggravated assault. In determining whether a felony is inherently dangerous, the court does not necessarily consider the elements of the felony in the abstract, but instead considers the circumstances under which the felony was committed.

Causation

To support conviction for felony murder, the State has to show that defendant’s commission of the alleged predicate felonies was a proximate cause of victim’s death. Proximate causation exists if the felony the defendant committed directly and materially contributed to the happening of a subsequent accruing immediate cause of death, or if the homicide was committed within the res gestae of the felony and is one of the incidental, probable consequences of the execution of the design to commit the predicate felony. Hood v. State, 303 Ga. 420 (2018).

Punishment

In Georgia, a felony murder conviction results in either life in prison (with or without parole) or the death penalty.

Contact Us

If you or a loved one is facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in various jurisdictions across Georgia.

Georgia Criminal Law – Burglary and Home Invasion

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Every state has enacted laws prohibiting the entering the home of another without permission of the occupant. This article serves to explore Georgia specific laws regarding this conduct and the penalties if convicted.

Burglary – The Offense

O.C.G.A § 16-7-1, a person commits the offense of burglary in the first degree when, “without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building, vehicle, railroad car, watercraft, aircraft, or other such structure designed for use as the dwelling of another.”

A person commits the offense of burglary in the second degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within an occupied, unoccupied, or vacant building, structure, railroad car, watercraft, or aircraft.

“Dwelling” is defined as any building, structure, or portion thereof which is designed or intended for occupancy for residential use. Burglary is a specific-intent crime; the state must prove that the defendant intended to commit a felony after making an unauthorized entry. Dillard v. State, 323 Ga.App. 333 (2013). Furthermore, the offense of burglary does not require proof that defendant’s entry into victim’s apartment was forced; rather, all that is required is finding that the defendant entered or remained in apartment without victim’s authority, with intent to commit felony or theft therein. Dupree v. State, 303 Ga. 885 (2018).

Burglary – The Punishment

A person who commits the offense of burglary in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years. Upon the second conviction for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than two nor more than 20 years. Upon the third and all subsequent convictions for burglary in the first degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than five nor more than 25 years.

A person who commits the offense of burglary in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years. Upon the second and all subsequent convictions for burglary in the second degree, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than eight years.

Home Invasion – The Offense

O.C.G.A. § 16-7-5 creates a separate criminal offense of home invasion in the first degree when a person, “without authority and with intent to commit a forcible felony therein and while in possession of a deadly weapon or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury, he or she enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present therein.”

A person commits the offense of home invasion in the second degree when, without authority and with intent to commit a forcible misdemeanor therein and while in possession of a deadly weapon or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury, he or she enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present therein.

As we can see, the difference between first degree home invasion and second degree home invasion relates to intent, where the former requires proof of intent to commit a felony and the latter requires proof of intent to commit a misdemeanor.

Home Invasion – The Punishment

A person convicted of the offense of home invasion in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for life or imprisonment for not less than ten nor more than 20 years and by a fine of not more than $100,000.00. A person convicted of the offense of home invasion in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five nor more than 20 years and by a fine of not more than $100,000.00.

Contact Us

If you or a loved one are facing criminal prosecution, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in various jurisdictions across Georgia.

How to Post a Cash Bond at the Fulton County Jail

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If your loved one is in the Fulton County Jail with a bond posted, here is how you can post a cash bond to get them released. 

  1. Go to the jail with your UNEXPIRED license/identification card (must be over the age of 18) and the amount required on the posted bond in EXACT CHANGE. To get the exact amount with all the additional fees included, you can call the jail beforehand with the inmate’s name and date of birth. You can also check the bond amount at www.cashbondonline.com
  • Once the jail has verified your identity and the payment has been received, the jail will start the release process. This process can take from a couple minutes to a couple hours because the process depends on a lot of factors such as their workload and checking for any holds. 
  • As long as there are no holds on the inmate, the payment will secure the release of the inmate. 
  • The bond amount paid will not be returned to you until the entire court case for the defendant is over.

Link to the Fulton Bonding Website: http://www.fultonsheriff.org/bonding-agencies.html

Georgia Criminal Law – RICO Act

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To combat “the increasing sophistication of various criminal elements,” the Georgia General Assembly adopted the Racketeer Influenced and Corrupt Organizations Act (RICO), developed from existing federal law. The RICO Act is intended to sanction organized criminal activity and to provide compensation to private parties injured as result of such activity.

Criminal Offense

The Georgia RICO Act makes it a crime for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money. O.C.G.A. § 16-14-4.  

A Georgia RICO prosecution requires proof that a defendant has committed at least two predicate acts of conduct that are crimes chargeable by indictment under certain laws of the state of Georgia or the United States in order to establish “racketeering activity.”

An essential element of this offense is proving a connection or nexus between the enterprise and the racketeering activity. See Dorsey v. State, 279 Ga. 534, 540 (2005) (holding that evidence was sufficient to sustain RICO conviction because there was “a clear connection between the enterprise … and the predicate acts”).

Predicate crimes under this Act used to establish a “pattern of racketeering activity” have been held to include the following: drug crimes, homicide, battery, arson, burglary, forgery, theft, robbery, prostitution and pandering, bribery, influencing witnesses, tampering with witnesses or victims, kidnapping, false imprisonment, terroristic threats, motor vehicle and aircraft hijacking, intimidation of a juror or court officer, perjury, tampering with evidence, commercial gambling, firearm offenses, illegally reproducing copyrighted material, securities violations, credit card fraud, destroying or misrepresenting identification numbers, certain computer crimes, insurance fraud, and mortgage fraud.

Criminal Punishment

If convicted under Georgia’s RICO Act, the defendant will be sentenced to imprisonment for five (5) to twenty (20) years, a fine, or both. Regarding the fine, the sentencing judge may impose a fine up to three times the amount of any money obtained by the defendant during the racketeering scheme.

Civil Law Applicability

For private parties who have suffered injuries as a result of the racketeering activity may have available remedies under civil law. The RICO statutes provide for damages for a plaintiff, including punitive damages, and also authorize a court to order the property or organization to be divested, dissolved, or other injunctive relief.

Contact Us

Being charged under Georgia’s RICO Act is a serious and complex criminal offense.  If you or a loved one are facing criminal prosecution through the RICO Act, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling RICO Act cases in multiple jurisdictions across Georgia.