Recidivist Statute

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A felony conviction has serious consequences. Punishment for a felony offense typically includes prison time, probation, fines, loss of constitutional rights and privileges, and a lifelong blemish on the person’s criminal record. Not only does a felony conviction impact the person’s ability to obtain employment and housing, but, under O.C.G.A. § 17-10-7, a prior felony conviction can be used to enhance a sentence on a new felony conviction. This article serves to explore the “Repeat Offenders” statute dealing with recidivist sentencing and Georgia’s ‘three strikes’ rule.

O.C.G.A. § 17-10-7 (a) – Recidivist Provision

If someone has one prior felony conviction and they are convicted of a felony a second time, the judge must to sentence the offender to the maximum term of imprisonment as set out in the statute they’ve been convicted of. However, the judge does have the discretion to probate or suspend that maximum sentence. Furthermore, in order to obtain a recidivist sentence under 17-10-7, the State must give the defendant clear notice before trial of its intention to seek such a sentence; the State must also prove that the prior conviction was for a crime which, if committed within Georgia, would be a felony.  Wheeler v. State, 270 Ga.App. 363 (2004).

O.C.G.A. § 17-10-7 (c) – Three Strikes Rule  

Any person who has been convicted of three felonies and commits a felony within Georgia shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided for the sentence. The judge will not be able to reduce the sentence, the offender will not be eligible for parole until the maximum sentence has been served, and early release is unavailable. A person sentenced under the Three Strikes Rule will have to serve every day of the imposed sentence.

 

I take prescription medication. Can I drive?

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The short answer is “it depends.” Most people correlate DUI conviction with alcohol. However, you can still be convicted of a DUI without having any alcohol in your system. Generally speaking, any sort of prescription medication that impairs and affects your driving could be the reason of a police officer stopping you. Typical prescription drugs that could lead to a DUI arrest are Xanax, certain antihistamines, sleep aids, and antidepressants. However, it is the burden of the State and the prosecutor to show that someone who takes prescription medicine is incapable of driving without being impaired.  If you are prescribed prescription medicine, consult with your doctor to determine if it would impair your driving and never take more than the prescribed dose.

Georgia Peeping Tom Lawyer

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Georgia Peeping Tom Lawyer

Georgia law defines a Peeping Tom as someone who peeps through windows or doors on the premises of another for the purpose of spying or invading the privacy of the other person. O.C.G.A. § 16-11-61.

Interestingly, the State is not required to show that the spying was successful, meaning whether or not the person to be spied upon was actually in view.

 

Is Peeping Tom a misdemeanor or felony in Georgia?

 

In Georgia, Peeping Tom is a felony offense. Under O.C.G.A. § 16-11-69, the sentence for a conviction for Peeping Tom is punishment of 1-5 years imprisonment or a maximum fine of $10,000 or both.

If you or a loved one has been charged with Peeping Tom in Georgia, please call the attorneys at W. Scott Smith PC for a FREE CONSULTATION at 404-581-0999.

Have you been charged with attempted murder in Georgia and do not know why?

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Georgia law provides that a person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart. Implied malice is a term which has been defined to mean conduct exhibiting a reckless disregard for human life. Specifically, the Supreme Court of Georgia has held that extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others – though unaccompanied by any intent to kill or do serious bodily injury – and which actually causes the death of another, may constitute murder. Reckless disregard for human life may be the equivalent of a specific intent to kill. Evidence that the defendant acted in reckless disregard for human life is, for purposes of demonstrating his guilt of the crime of malice murder, as equally probative as evidence that he acted with a specific intent to kill. So, when does the charge become attempt? A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. Intentionally shooting someone can be a substantial step toward the commission of the crime of murder.

For attempted murder, the court will look to your prior intentional acts of violence against the alleged victim. Similarly, if you do not have prior difficulties with the alleged victim, this lack of evidence may support a claim the act was not intentional.

In a Georgia case of Mills v. State, the Supreme Court held in 2010 the evidence supported a finding of both express and implied malice. The defendant had threatened to kill the victim in the past if he caught her cheating on him and had cut her while holding a knife to her throat. The defendant again threatened to kill the victim just hours before the shooting. Later, while high and drunk, the defendant complained that the victim had another man coming to their residence too frequently, and, to show he was serious, the defendant climbed into bed with the victim holding a loaded 9mm handgun with his finger on the trigger, pointed the gun at her, and shot her in the head while her two-year-old son was on the bed next to her. He then failed to seek medical aid and instead sought to dispose of the murder weapon. This evidence was sufficient to show from the external circumstances that the defendant caused the victim’s death with deliberate intention, thereby establishing express malice. In addition, there was no “considerable provocation” for the shooting even under the defendant’s own version of events, and a rational jury could find that the circumstances surrounding the killing showed that the defendant had an abandoned and malignant heart, thereby establishing implied malice.

Have you been charged with attempted murder in Georgia please call our office 24/7 at 404-581-0999. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

Conditional Discharge or Drug First Offender

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Conditional Discharge or Drug First Offender is a once in a lifetime opportunity that allows someone who has been charged for the first time with possessing drugs or a non-violent property crime related to drug or alcohol addiction to resolve their case without a felony conviction. The resolution will typically involve probation and some sort of rehabilitation and treatment. Once the terms of the sentence are completed successfully the case will be dismissed and will not be considered a conviction. Conditional discharge may still be available even if you have previously used first offender. Drug offenses can have significant collateral consequences. If you or a loved one has been charged with a drug offense, it is very important you speak with an experience attorney. Please give us a call at 404-581-0998 for a free case consultation.

What is First offender and can I use it?

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What is it? First offender treatment allows you to enter a guilty plea, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be dismissed, and you will be exonerated as a matter of law. This means that you can honestly say that you have not been convicted of a crime and all your civil rights are restored.

Can I use it? The answer is a lawyer’s favorite, it depends. If you have been charged with a crime and have never pleaded guilty to or been convicted of a felony, you may be eligible for First offender treatment under OCGA § 42-8-60. There are certain charges that, by statute, the answer is an automatic no. Offenses considered serious violent felonies (murder, armed robbery, kidnapping, etc.), most sex crimes, and DUI are not eligible. While, it can be used on both misdemeanor and felony offenses, it is generally advised not to use it on misdemeanors. However, every case is different. First offender is a once in a lifetime chance and once you use it, you can never use it again. It is important to discuss all your options with an attorney before making the decision to use or decline first offender.

What else should you know? The decision to grant first offender is entirely up to the judge; even if you are eligible there are times that a judge will not allow it. There are risks to using first offender. If you violate probation, the judge has the right to bring you back, adjudicate you guilty and resentence you to the maximum punishment with credit for the time you were on probation. For example, your sentence is 5 years, the max for the offense is 10 years and you violate your probation after 2 years. The judge can increase your sentence from 5 years to 10 years, but you would get credit for the 2 years. That would leave you with 8 years left and you would be a convicted felon. Now, that doesn’t mean that just because you violate your probation the judge will automatically do that. It really comes down to what the violation is. This makes it very important to have an attorney with you for any sort of probation revocation proceeding.

Prior False Allegations Are Admissible in a Child Molestation

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You are accused with child molestation and your accuser has previously falsely accused another person of child molestation. Can you bring up these prior false accusations in your case? The answer is yes.

The Georgia Supreme Court held in State v. Burns, that a defendant in a child molestation prosecution may bring up evidence that the alleged victim has previously made false accusations of child molestation. This evidence is admissible to attack the credibility of the victim and show that the current charges did not occur.

In this case, James Burns was charged with aggravated sexual battery, aggravated sodomy, and incest. It was discovered that the alleged victim had made up a prior rape allegation.

The Rape Shield Statute of Georgia does not prohibit testimony of previous false allegations by a victim. This is because prior false accusations establish that the victim has a propensity to make false statements regarding sexual misconduct. The Rape Shield Statute in Georgia is designed to prohibit bringing up the victim’s past sexual conduct. But it does not protect the victim in cases where a false allegation was made.

A criminal defendant has a Sixth Amendment right to make a full defense. A defendant has the right to bring up prior false allegations where it can be shown that the allegation was indeed false. The Sixth Amendment also grants the defendant the right of confrontation. This includes the right to physically face the person who is testifying against him and the right to conduct a thorough cross-examination. A defendant is guaranteed the opportunity for effective cross-examination.

In addition, the due process clause of the Fourteenth Amendment guarantees a criminal defendant a meaningful opportunity to present a complete defense. The defendant does not have a right to offer any testimony that is either privileged, irrelevant or excluded under the rules of evidence. However, if the defendant has evidence of a prior false allegation of the alleged victim then it is admissible in order to protect the integrity of the trial.

In State v. Burns, the Georgia Supreme Court has made a bright line rule that prior false allegations are admissible, regardless of other rules of evidence.

If you are charged with aggravated child molestation, child molestation, sexual battery, rape or any other sexual offense in Georgia, it is imperative that you aggressively defend yourself and learn everything you can about the alleged victim. If the alleged victim in your case has ever made up an allegation against any other person, you must use this information to your advantage when confronting your accuser in court.

If you are charged with any sexual offense in Georgia, please contact us at 404-581-0999

Fraud in Obtaining Public Assistance, Food Stamps or Medicaid – O.C.G.A. § 49-4-15

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In Georgia, it is a crime to make a false statement, fail to disclose information, impersonate another, or engage in other fraudulent activities in obtaining public assistance such as food stamps and Medicaid.

This crime can be charged as either a misdemeanor or felony depending on the total amount of the value of the public assistance. If the amount of food stamps or public assistance is less than $1,500, then it will be charged as a misdemeanor. In Georgia, the maximum penalty for misdemeanors is 12 months in custody and a $1000 fine. If the value of public assistance exceeds $1500, it will be treated as a felony. Under Georgia law, individuals convicted of felony fraud in obtaining food stamps or Medicaid face a one to five-year imprisonment.

 

The statute lays out several different examples of fraudulent activity that can fall under this statute:

 

(1) Knowingly using, altering, or transferring food stamp coupons to purchase food stamp coupons in any manner not authorized by law;

(2) Knowingly possessing food stamp coupons or authorizations to purchase food stamp coupons when he or she is not authorized by law to possess them;

(3) Knowingly possessing or redeeming food stamp coupons or benefits when he or she is not authorized by law to possess or redeem them; or

(4) Knowingly using food stamp coupons or benefits in any manner or for purposes not authorized by law.

 

Apart from being susceptible to arrest under this statute, the legislation mandates that the individual is also obligated to reimburse the state.

 

If you or a loved one has been charged with Fraud in Obtaining Public Assistance, Food Stamps, or Medicaid, call the criminal defense lawyers at Law office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.

Entrapment

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Can an entrapment case in the State of Georgia be won?  Yes.  Does entrapment apply to snitches or government agents?  Yes.  A person is not guilty of a crime if the arrested person’s conduct is induced through entrapment by a government agent.  Entrapment exists when the idea of the committing the crime originated with a government agent by deceitful means and induced the arrested person to commit the act, which the arrested person would not have committed, except for the conduct of the government agent.

To constitute entrapment, the arrested person must have been induced to commit a criminal act that he would not have otherwise committed except by undue persuasion, incitement, or deceitful means implemented by the government agent.

No entrapment exists when a police officer or an agent of the police merely furnishes an opportunity to commit a criminal offense to a person who is already ready and willing to commit the criminal offense.

If an officer has reason to believe that the law is being violated, the officer may proceed to ascertain whether those who are thought to be doing so are actually committing a criminal offense. If the conduct of the officer is such as not to induce an innocent person to commit a crime but to secure evidence upon which a guilty person can be brought to justice, then there is no entrapment.

The State has the burden of proving beyond a reasonable doubt that the arrested person was not entrapped.

If you feel as though you have been entrapped by law enforcement or an agent of law enforcement it is important that you hire an experienced lawyer who will thoroughly investigate your case and fight for you. If you are charged in Gwinnett, Cobb, Cherokee, Fulton, Dekalb, Clayton, or Newton County, and believe law enforcement may have acted inappropriately, call our office at 404-581-0999 today for a free consultation.

Cobb County Sexual Battery

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Georgia law makes it illegal to intentionally make physical contact with the intimate parts of the body of another without their consent under O.C.G.A. 16-6-22.1(b). It defines intimate parts as the genital area, but also inner thighs, buttocks, and breasts of a female.  Skin to skin contact is not required, and physical contact through clothing is sufficient.

Sexual Battery is typically a high and aggravated misdemeanor. High and aggravated misdemeanors have harsher sentencing than standard misdemeanors, including a fine of up to $5,000. If sentenced to custodial time on a high and aggravated misdemeanor, it is typical to not be eligible to earn good time credit or be eligible for earlier release. If convicted of sexual battery against a child under 16, it is a felony offense carrying punishment of one to five years imprisonment. When convicted of sexual battery against someone over 16 years old, the State of Georgia considers it a felony offense carrying one to five years imprisonment. Similarly, when convicted of Sexual battery for the second time, Georgia will treat it as a felony offense. Both misdemeanors and felonies appear on criminal histories.

There are defenses to Sexual Battery in Cobb County and throughout Georgia. First of all, a defense would be if the incident did not occur.  Additionally, having the other party’s consent is a valid defense. The law requires actual proof of the victim’s lack of consent in order to be convicted of sexual battery.

If you or a loved one has been charged with Sexual Battery in Cobb County or anywhere in Georgia, call the Law Office of W. Scott Smith for a FREE CONSULTATION at 404-581-0999.