Homicide, Murder, and Manslaughter Charges in Georgia

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In our criminal justice system “homicide” is a broad umbrella term which encompasses different types of specific crimes. Homicide is generally defined as the killing of another person without justification or defense. This blog article aims to explore the different types of homicides under Georgia law.

 

Murder

 

O.C.G.A. § 16-5-1 sets out the ways a person can commit the offense of murder and second-degree murder.

 

  • 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.

 

  • A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.

 

This is also referred to as “felony murder.”

 

  • A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.

 

Punishment if Convicted

 

A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life. A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than 30 years.

 

Manslaughter

 

In Georgia, manslaughter can be either voluntary or involuntary.

 

Under O.C.G.A. § 16-5-2, a person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.

 

Essentially, the law recognizes that a person can become so inflamed by passion or provoked to a certain degree that it negates the mental state of “malice” found in murder charges. Because there is no malice, a jury is authorized to convict a person on the lesser offense of voluntary manslaughter.

 

Examples of sufficient provocation or irresistible passion have been held to include adultery (Raines v. State, 247 Ga. 504 (1981)) and battered person syndrome (Paslay v. State, 285 Ga. 616 (2009)). Evidence of anger alone is not sufficient to set aside malice. It is also important to note there can not be a “cooling off” period between the provoking act and the killing.

 

A person who commits the offense of voluntary manslaughter, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years.

 

Pursuant to O.C.G.A. § 16-5-3, A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.

 

In the situation of an unlawful act, upon conviction thereof, the person shall be convicted of a felony and punished by imprisonment for not less than one year nor more than ten years.

 

A person also commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.

 

Here, during the commission of a lawful act in an unlawful manner, upon conviction thereof, the person shall be punished as a misdemeanor.

 

Contact Us

 

Homicides are investigated aggressively by law enforcement. These crimes are extremely serious. If you or someone you know has been charged with a crime involving the death or another, please contact our office today at 404-581-0999 for a free consultation.

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 – 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.

Can a Spouse of a Convicted Felon Own a Gun in Georgia?

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By:  Mary Agramonte

Georgia law prohibits people convicted of felonies from possessing firearms. Similarly, people currently on first offender probation are also not allowed to carry guns. You must be discharged from probation as a first offender without an adjudication of guilt in order to lawfully possess a firearm. Felons cannot have guns unless and until their rights are restored in the State of Georgia.

But what if you are a convicted felon and someone else near you owns a gun? Or what if you are in the same vehicle as someone who has a gun? Likewise, one of the questions we are asked most often is “can my spouse or partner have a gun in the same home as me if I am a felon?”

The short answer is: it depends. The question that is going to be asked by law enforcement and the Courts is whether or not the State can prove YOU possessed the gun. You do not have to actually have it in your hand or your pocket in order to be charged and convicted with Possession of a Firearm by a Convicted Felon. In some instances, it simply has to be near you, or in a place where the circumstances point to the weapon being yours. This is because Georgia law recognizes two different kinds of ‘possession.’ The first is Actual Possession and the other kind is Constructive Possession.

Actual Possession is where you truly possess the gun: it is in your pocket or in your car, for example. With Constructive Possession, the line can be a little more blurry on whether or not you will be arrested or convicted of possession the firearm by a convicted felon. When  dealing with Constructive Possession, you can be arrested for possessing a firearm even if you never possessed it. The State can prove it through circumstantial evidence. For example, constructive possession occurs where a gun is in a shared hotel room with you and a friend, and you know the gun is there, and you tell police where it is. In that situation, the State will allege you had possession of the firearm- even if you never touched it. Another example of constructive possession would be if the gun was found in the drawer of a shared bedroom, near clothes that match your gender. Additionally, you can be charged with possession of a firearm by convicted felony if your co-defendant carried a gun in an armed robbery that you were a part of even if you never touched the gun.

So the answer to the age-old question is yes, your spouse can own a gun as long as you don’t possess it- actually or constructively, but to be wary as the distinction is not always clear. If you or a loved one has been arrested for Possession of a Firearm by a Convicted Felon, call us today for a free consultation on the case at 404-581-0999.

What do you do if you are arrested for possession with intent or trafficking in drugs in Georgia?

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If you or a loved one is arrested for Possession with Intent to Distribute or Trafficking in Georgia, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The District Attorney has a dedicated division to prosecute cases involving Possession with Intent to Distribute or Trafficking. They will vigorously prosecute you if you are charged with a crime involving selling cocaine, heroin, methamphetamines, marijuana or other illegal drugs.   

Do not think that just because you are innocent that the charges will be dismissed. Drug charges are aggressively prosecuted all over the State of Georgia.

Make sure your attorney has had felony jury trials and has won these cases. Do not let an attorney handle your case who does not specifically handle drug cases. Many drug cases are won at a motions hearing. It is imperative that you get body cams, dash cams, search warrants and take witness statements of anyone involved in the search and seizure of the drugs.  

The law may say you are presumed innocent but in drug cases, you have to prove your innocence.

Here is what you should do if arrested for Possession with Intent to Distribute or Trafficking.

  1. Hire an attorney – Make sure that attorney actually handles and tries drug cases. Most criminal defense attorneys do not handle these cases. Make sure the attorney you talk to does regularly handles drug cases in Georgia
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for possession with intent to distribute or trafficking, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession.
    1. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    1. Witnesses – Immediately make a list of any person who you think might have information about this accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for possession with intent to distribute or trafficking in Georgia.

  1. Never talk to law enforcement or the prosecutor without an attorney.

If you are arrested for possession with intent to distribute or trafficking in cocaine, heroin, marijuana, methamphetamine or any other illegal drug, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. 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.

Can I Vote if I am a Felon in Georgia?

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Can I Vote? Good News!

If you are finished with your felony sentence, then yes, you are able to vote in the State of Georgia. Many people incorrectly believe that once they are convicted of a felony, their voting rights are gone forever.  The good news is that Georgia will allow you to regain your voting rights back! As soon as you are finished with your felony sentence,  your right to vote is automatically restored even if you have a felony on your record. You may vote so long as you are not in prison for a felony sentence, nor on probation or parole for a felony sentence. Once you are done with your probation or parole sentence, your ability to vote is automatically restored. There is no separate application process.

But what if I am in jail pending my trial date?

 If you are in jail awaiting your trial in a felony case, then you are eligible to vote.

What if I am currently on First Offender felony probation?

You should be able to vote given you are not serving time for a felony conviction. A first offender case is not a conviction unless the judge chooses to revoke your first offender status for a violation of terms.

General Information

To register to vote, you must be a United States citizen, be 18 years old, not be serving a sentence for a felony conviction, and have not been found mentally incompetent by a judge. For more information and to download a voter registration application, visit the Secretary of State’s website here: http://sos.ga.gov/index.php/Elections/register_to_vote