Child Hearsay in Georgia

/in , , , , , , , , , , , , , , , , /by

If you are charged with child molestation, cruelty to children, or any crime, in Georgia, where a child is the alleged victim, the State will fie a Motion to Admit Child Hearsay testimony.

This is pursuant to O.C.G.A. 24-8-820. This status is the Georgia Child Hearsay Statute.

O.C.G.A. 24-8-820 reads as follows:

(a) A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at trial, unless the adverse party forfeits or waives such child’s testimony as provide in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

All that is required is:

  1. Notice to the defendant of the State’s intention to use such statements.
  2. The child testifying at trial, unless the defendant waives it.
  3. The person to whom the statements were made is subject to cross-examination.

You will need to be prepared to challenge the credibility and the underlying facts of any witness who takes the stand against you and claims that the child made statements to them about the sexual contact or physical abuse. Do not waive the child’s presence at trial. Make the child testify.

In cases of child molestation, there is rarely physical evidence. The entire case comes down to credibility. It is the defendant’s credibility vs. the child’s and the child’s witness’s credibility. Do not forfeit the right to a thorough cross-examination of the child and their witnesses.

These child hearsay witnesses can include testimony of physicians, investigators, parents, other family members, forensic interviewers and any other person who spoke to the child about the allegations.

You must be prepared to challenge each of these statements.

Child Molestation and Cruelty to Children carry severe penalties in Georgia. Do not make statements to the police about the allegations. You must hire a qualified attorney and be prepared to vigorously fight your case at trial.

Please call us at 404-581-0999 if you are charged with any crime involving a child in Georgia.

Recidivist Statute

/in , , , , , , , , , , , , /by

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.

 

Conditional Discharge or Drug First Offender

/in , , , , , , , , , , , , , , /by

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.

Trafficking at Airport

/in , , , , , , , , , , , /by

Trafficking marijuana or cocaine at the Atlanta airport is a serious offense.  Our law firm has successfully handled hundreds of these cases in Clayton County.  The first step in successfully handling these cases is knowing the law.

Let’s take a hypothetical situation that we see often in our drug trafficking cases from the Atlanta airport.  Hypothetically speaking, John Passenger arrived in the Atlanta airport on  a flight from the Dominican Republic. After disembarking, he did not follow the other passengers but began wandering aimlessly in the seating area next to the gate. Two Clayton County police officers, Officer Slammer and Officer Book’em, had been informed that John Passenger would be on the flight. The officers were dressed in plain clothes, with no weapons visible. They approached John Passenger from behind, and one officer said, “Excuse me, sir, I’m a police officer. Can I talk to you for a minute?” John Passenger turned and responded, “Yes,” in English, but when the officers asked him if he spoke English, he smiled and responded in English that he did not. John Passenger told the officers, through an interpreter, that he was in Atlanta for personal reasons and that he was employed as a construction worker. Officer Slammer asked to see the palms of John Passenger’s hands, and he saw that they were smooth and free of calluses. At this point, John Passenger began to appear very nervous; his hands shook and he began to sweat.

Officer Slammer explained to John Passenger that he was a narcotics officer; he asked permission to search John Passenger and his luggage, but John Passenger agreed to a search of his person only and not of his luggage. When asked why he was hesitant to allow his luggage to be searched, John Passenger replied that it contained X-rated material and women’s lingerie and that he would be embarrassed by a search. Agent Officer Book’em asked if John Passenger would rather have a drug sniffing dog check the luggage for narcotics, and John Passenger said that he would rather have a dog check the luggage. They proceeded to baggage claim, where the defendant’s bag was located.

Agent Officer Slammer called for a dog from the Tri-City Narcotics Unit. He also told John Passenger he was not under arrest. The K-9 unit arrived less than 15 minutes later, and the agents arranged for the dog, named K-9 Drug Dog, to check a line of four bags, including John Passenger’s luggage.  K-9 Drug Dog alerted to John Passenger’s bag. The officers again asked John Passenger if he would agree to a search of the bag. John Passenger responded that he would agree only if he could do the search himself, but the officers did not agree to this proposal. Officer Slammer then ordered John Passenger detained. The officers took him and the bag to the narcotics office, where Agent Espana, who spoke Spanish, informed John Passenger of his Miranda rights. The officers obtained a search warrant for the bag. Inside, they found five kilos of cocaine.

This hypothetical was taken from a real case.  Clearly, John Passenger did not adequately protect his rights in that he agreed to allow a k-9 dog at the Atlanta airport to do a free air sniff around his bag.  Second, he agreed to go with officers to allow the K-9 to sniff his luggage.  Lastly, he agreed to allow officers to search his bag without a warrant.  Obviously, even if you are not trafficking drugs at the airport, you should always protect your rights and never consent to a search unless it is requested by TSA for security purposes in order for you to fly.  Secondly, you should always be polite and respectful of law enforcement when you decline to permit them to search your luggage or walk with them to a location you do not want to go.  If they tell you you are under arrest then obviously comply with their commands.

One hopes a bad thing will not happen to you as you are travelling through Atlanta’s International Airport, but sometimes bad things happen to unassuming innocent people.  If you find that law enforcement has charged you with Trafficking Cocaine or Trafficking Marijuana at the Atlanta airport by searching your luggage and finding drugs, it is important that you hire a skilled criminal defense attorney to represent you if you are charged with this offense. The lawyers at our law office are experienced at defending these types of crimes and will work tirelessly to discover defenses in your case and protect you from these severe punishments. Call our office today at 404-581-0999 for a free consultation.

What is First offender and can I use it?

/in , , , , , , , , , , , /by

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.

First Offender in Fulton County

/in , , , , , , , , , , , , /by

If you have been charged with a felony offense (with some exceptions) 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. Charges that are considered serious violent felonies, e.g. murder, armed robbery, kidnapping, etc. and sexual offenses are not eligible for First Offender treatment.

First Offender allows you to enter a plea to the offense, but it is not considered a conviction. If you successfully complete all the terms of the sentence, the case will be discharged 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 felony and all of your civil rights are restored.

This is a once in a lifetime opportunity and if you or a loved one has been charged with a felony offense and you think you might be eligible for First Offender, please give us a call at 404-581-0999.

Can I claim self-defense?

/in , , , , , , , , , , , , , /by

In Georgia, pursuant to O.C.G.A § 16-3-21, a person is justified in using force to defend themselves or others when a person reasonably believes that such force is necessary to defend themselves or a third person against another person’s imminent use of unlawful force. This means that a person in Georgia may be justified in an action that would otherwise be a crime if they can make out a case to the court that they were defending themselves or another person.

If you believe that you were justified in using force and find yourself charged with a serious felony like aggravated assault, manslaughter, or murder, your attorney will petition the court for an immunity hearing, asking the court to find you immune from prosecution. At this hearing the defendant carried the burden to show the court, by a preponderance of the evidence, that they were justified in their actions because they reasonably believed that they were at risk of receiving a serious or life threatening injury if they did not act.

In order to make this showing to the court the defendant mut show several things:

  • The defendant was not the initial aggressor. If you were the initial aggressor in an argument, meaning that you started a fight or an altercation, you are not permitted to claim self-defense.
  • The defendant was not engaged in mutual combat with the victim. If you and the victim agreed (by words or actions) to engage in a fight, you are not permitted to claim self-defense. However, if you remove yourself from the fight, and communicate this to the other person, and then the other person comes after you, you may now be entitled to claim self-defense.
  • The force used by the defendant was not unreasonable. The amount of force used to defend yourself must be reasonable based upon the amount of force used against you. For example, if someone says “I’m going to slap you” it is not reasonable to shoot them.

If you can show the judge that you were in fact justified in defending yourself, the case will be dropped and you will be immune from prosecution. It is very important that you have a lawyer representing you who can help you make out your case to the court. At the Law Offices of W. Scott Smith, we have handled immunity motions like this is Fulton, Cobb, Dekalb, Gwinnett, Clayton, Newton, Forsyth, and many other counties. Call us today at 404-581-0999 for a free consultation.

How do I get out of Clayton County Jail?

/in , , , , , , , , , , /by

I’ve Been Arrested…

You are in handcuffs and headed to the Clayton County Jail. You want to get out as soon as possible. Your loved ones are in a panic to find a lawyer to help get a bond set. The Clayton County jail is not a good place to be.

What do I do?

First, do not make any statements to the police while you are being transported to the Clayton County Jail.

Second, do not make any statements about the facts of your case to anyone at the Clayton County Jail. This is not the time to plead your innocence. Your sole focus should be on getting out on bond.

Do NOT talk on the jail phones about the case. All calls at the Clayton County jail are being recorded. Just focus on getting someone to help get you out of jail.

You will need to get paperwork filed with the DA’s office, on a serious felony, for them to pull the file and consider a consent bond.

When is my court date?

If you are arrested on a misdemeanor, you will go in front of a Magistrate Judge the following morning.

If you are arrested on a felony, you will go in front of a Magistrate Judge the following morning.

Your loved ones should plan on going to the Clayton County jail about 30 minutes before court starts. The jail is located at 9157 Tara Blvd, Jonesboro, Georgia 30236.

Can I get a bond?

The Clayton County Magistrate Judge is required to consider four factors when setting a bond.

  1. Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
  2. Poses no significant threat or danger to any person, to the community, or to any property in the community;
  3. Poses no significant risk of committing any felony pending trial;
  4. Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

Some crimes must go before a  Clayton Superior Court judge in order to have a bond set. If you are charged with any of these specific crimes in Clayton County then the Magistrate Judge cannot set a bond at your initial court appearance. All that will happen at this appearance, is the judge will read the warrants to you and reset your case.

The crimes that are only bondable by a Superior Court judge are as follows:

  1. Treason
  2. Murder
  3. Rape
  4. Aggravated Sodomy
  5. Armed Robbery
  6. Aircraft hijacking and hijacking a motor vehicle
  7. Aggravated Child Molestation
  8. Aggravated Sexual Battery
  9. Manufacturing, distributing, delivering, dispensing, administering, or selling any controlled substance classified under Code Section 16-13-25 as Schedule 1 or under Code Section 16-13-26 as Schedule II
  10. Violating Code Section 16-13-31 or 16-13-31.1
  11. Kidnapping, arson, aggravated assault, or burglary if the person, at the time of the alleged kidnapping, arson, aggravated assault, or burglary, had been previously convicted of, was on probation or parole with respect to, or was on bail for kidnapping, arson, aggravated assault, burglary, or one or more of the offenses listed above.
  12. Aggravated Stalking

For any of these crimes that are bondable only by a Clayton County Superior Court judge, you will get a court date that will be in the Clayton County Courthouse. The Clayton County Courthouse is located at 9151 Tara Blvd, Jonesboro, Georgia 30236.

What are the types of bonds?

There are several types of bonds available for your case.

  1. Released to Pretrial Services: Clayton County will sometimes release people on their own recognizance which means that you do not have to put up any money. You will be monitored by Clayton County Pretrial Services. You will have to report to Pretrial Services until your case gets resolved in court.
  2. Cash Bond: Another option in Clayton County is to pay a cash bond. This means that you pay the entire bond yourself. The benefit to this bond is that it is refundable to you once you resolve your case.
  3. Property Bond: Another option in Clayton County is to post a property bond. In order to post a property bond, you would need to speak to the Clayton Sheriff’s office. They generally will require a warranty deed, a current tax statement showing the property’s fair market value as well as a statement showing all taxes are current. You generally need double the bond amount in equity.
  4. Bail Bondsman: The final option is to call a bonding company. You will pay between 10% – 15% of the total bond to the bonding company. The bonding company will then post the entire bond and you will be released. This 10% – 15% is non-refundable. The Clayton County jail will provide you with a list of approved bonding companies.

If you or your loved one is arrested and taken to the Clayton County jail, please contact us any time and we can assist you in helping get a bond set.

Our office is located in downtown Atlanta at 100 Peachtree Street, Suite 2060, Atlanta, Georgia 30303. Feel free to call us at 404-581-0999 anytime day or night. Also, please go to our website at www.peachstatelawyer.com

Call us anytime 24/7. We will have an attorney at your bond hearing the following morning.

 

Self Defense In Georgia: Immunity Hearing in Fulton County

/in , , , , , , , , , /by

If you are charged with a crime in Fulton County and believe you acted in self-defense, you are entitled to an immunity hearing. We will need to file an immunity motion and request a hearing in Fulton County Superior Court.

O.C.G.A. 16-3-24.2 gives you this right to an immunity hearing. At this hearing, a judge will determine if you acted in self-defense and the judge can dismiss your case.

Soon after you are arrested, start gathering information that may assist in your defense. Get contact information for any potential witness so we can interview them. Write down everything you remember about the case and why you believed you had to use force.

The Fulton County Superior Court judge has a duty to determine before trial whether a person claiming the use of threats or force in self-defense or defense of property is immune from prosecution.

You have the burden of proof at the immunity hearing in proving that you were justified in using force by a preponderance of the evidence.

If the Fulton County Superior Court judge rules against you in an immunity hearing, you can still have a jury trial and argue self-defense to the jury. It might be easier to win at trial due the burden of proof being beyond a reasonable doubt. At the immunity hearing, the burden is on the defense to prove self-defense. At trial, the burden shifts to the State to show that the defendant was not acting in self-defense.

If you are arrested for any crime in Fulton County where you believe you acted in self-defense, 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.

Civil Asset Forfeiture- Gwinnett County

/in , , , , , , , , /by

Civil asset forfeiture allows the government to confiscate property that they deem as having been used in criminal activity. Civil asset forfeiture does not require a conviction or criminal charges being taken out.

In Georgia, civil asset forfeiture is a legal process, and it allows the government to seize your property that they claim is connected to a crime or would likely be used to commit a crime, especially a crime involving a controlled substance. The most seized property includes cash, cars, cell phones, firearms, and real estate.

If the police have seized your property in a civil asset forfeiture, you must act fast so that you do not lose what the police has taken. It is important that you hire an experienced attorney as soon as possible because there is a limited amount of time to object to the forfeiture.

If you or someone you know has been arrested for a drug offense and has had their property seized, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.