Possession of Schedule 1 Controlled Substances – VGCSA – Georgia

Possession of Schedule 1 drugs are classified as felonies in the State of Georgia. According to the laws of our state, criminal charges associated with the possession of these drugs are in accordance with the Georgia Controlled Substances Act. The following controlled substances are examples of drugs classified as Schedule 1:

  • Heroin
  • LSD
  • Morphine
  • Ecstasy

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act, include the charge of possessing Schedule I drugs. The Georgia Controlled Substances Act is laid out in the following statutes: O.C.G.A. § 16-13-20 through § 16-13-30. A list of all of the controlled substances considered to be Schedule I are referenced in O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act. A Schedule I controlled substance is defined as:

  1. A drug or other substance that has a high potential for abuse;
  2. The drug or other substance does not currently have any accepted medical use in treatment in the United States; and
  3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, which does encompass any Schedule I drug.

SENTENCING

If an accused is prosecuted under the Georgia Controlled Substances Act for possessing a Schedule I controlled substance, the charge will be classified as a felony. If the accused is later convicted of these charges, the following punishments may occur:

  1. If the aggregate weight is less than one gram of a solid substance or less than one milliliter of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-3 years;
  2. If the aggregate weight is at least one gram but less than four grams of a solid substance or at least one milliliter but less than four milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-8 years;
  3. If the aggregate weight is at least four grams but less than 28 grams of a solid substance or at least four milliliters but less than 28 milliliters of a liquid substance, the accused may be sentenced to imprisonment anywhere between 1-15 years.

Because of the severity of the punishment for possessing a Schedule I controlled substance, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know all possible options of an accused arrested and charged with V.G.C.S.A., we understand and assert all potential defenses for such a charge, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of a Schedule I controlled substance, please call our office today at 404-581-0999 for a free consultation.

Aggravated Battery Charges in Georgia

In Georgia, there are multiple types of battery offenses such as simple battery, battery, family violence battery, and aggravated battery. This blog will solely focus on aggravated battery.

According to O.C.G.A. § 16-5-24, a person commits the offense of aggravated battery when he/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 seriously disfiguring his/her body or a member thereof. The crime of aggravated battery does not require that the victim’s disfigurement be permanent, however, the injury must be more severe than a superficial wound. Some examples of aggravated battery include, but are not limited to:

  • Striking a person with a weapon or dangerous object;
  • Inflicting an injury upon a person in which causes them to have blurred vision, broken bones, severe bruising, memory lapse, or permanent nerve damage;
  • Shooting a person with a firearm;
  • Inflicting an injury upon a person in which causes them to suffer temporary or permanent disfigurement;
  • A battery against a particular group of people that are protected such as police officers, healthcare providers, social services workers, the elderly, and the developmentally disabled.

A conviction of aggravated battery requires the jury to find that an accused person acted with intent. Thus, an experienced criminal defense attorney may defend these allegations by arguing that the accused did not have the requisite state of mind to commit an aggravated battery. Another example of an affirmative defense that may be raised in a case like this is self-defense.

Penalties

An aggravated battery charge is a serious offense and is characterized as a felony. A person convicted of this offense can be punished anywhere between 1-20 years in prison. However, the punishment is enhanced when the victim of an aggravated battery is part of a particular class of persons. If the victim is a police officer engaged in his/her official duties then the accused, if convicted, may be sentenced to a prison term of at least 10 years, but no more than 20 years. Furthermore, if the victim is a person over the age of 65 years old, the accused may be punished anywhere between 5-20 years in prison. Additionally, if the victim is a teacher or other school personnel, and the offense occurred within a school safety zone, the penalty upon conviction is at least 5 years, but no more than 20 years in prison. Finally, if the aggravated battery is considered to have been committed against a person who has a familial relationship with the accused, he/she could be sentenced anywhere between 3-20 years in prison.

Due to the severity of the penalties for an aggravated battery charge, it is of vital importance to hire an experienced criminal defense attorney who is knowledgeable of all possible options for an accused dealing with such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained at defending such charges. Therefore, if you or a loved one has been arrested for aggravated battery, please call our office today at 404-581-0999 for a free consultation.

Felony Murder in Georgia

In Georgia a person will be convicted of felony murder in this State “when, in the commission of a felony, he causes the death of another human being irrespective of malice.”  In determining whether a felony meets that definition, the Court will tell the jury to consider the circumstances under which the felony was committed.  Further, there must be some connection between the felony and the homicide.

 

Here is a breakdown of the felony murder statute and the elements the state must prove beyond a reasonable doubt:

 

  1. In the commission of a felony

 

The homicide must have been done in carrying out the unlawful act and not collateral (accompanying but secondary) to it. It is not enough that the homicide occurred before or after the felony was attempted or committed.

 

The only limitation on the type of felony that may serve as an underlying felony for a felony murder conviction is that the felony 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.”

 

The reason for the felony murder rule is to furnish an added deterrent to the perpetration of felonies, which create a foreseeable risk of death. This function is not served by application of the rule to felonies not foreseeably dangerous.

 

Some common crimes that qualify for felony murder include:

 

  • Aggravated assault
  • Armed robbery
  • Arson
  • Burglary
  • Firearms offenses; in some cases possession of a firearm by a convicted felon.
  • Kidnapping
  • Narcotics offenses or VGCSA – including sale of drugs
  • Party to a crime
  • Sexual assault

 

 

  1. Causes the death of another person.

 

The person charged must directly cause the death of the victim to be convicted of felony murder.  For example, a defendant may be convicted of felony murder based on the underlying felony of distributing a controlled substance if the defendant directly causes the death of the victim while in the commission of the felony.

 

  1. You do not need malice.  

 

There are two types of Malice.  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.”

Malice is where the actor acted deliberately knowing his conduct was dangerous or reckless and he was not concerned as to whether anyone was harmed or not.  So what is less than malice?   Can the action be as low as gross negligence or even less than negligence?

Armed Robbery in DeKalb County, Georgia

            Armed Robbery occurs when someone takes property from someone by use of a weapon, device, or a replica weapon. It is treated seriously under Georgia law in that it is a “capital felony.” A capital felony is a crime that is punishable by life or death in the State of Georgia. This blog lays out the criminal justice process for someone who has been arrested for Armed Robbery in DeKalb County.

            The first thing that happens after someone is arrested for Armed Robbery in DeKalb County is that they will see judge in their First Appearance hearing. This typically occurs within 48-72 hours of the person being arrested, depending on whether or not there was an arrest warrant. The First Appearance occurs at the DeKalb County Jail at 4424 Memorial Drive in Decatur. At the First Appearance hearing, a DeKalb County Magistrate Judge will read the charges to the suspect, as well as inform them of their right to counsel and right to remain silent. In some types of cases, bond can be considered at a First Appearances hearing. However, in Armed Robbery cases, the procedure is different. This is because only Superior Court Judges can hear bond arguments for the crime of Armed Robbery. This means unless the First Appearance Judge is “sitting in designation” then a bond will not be set or considered at the onset of arrest at the initial hearing.

Following the arrest and First Appearance hearing in Armed Robbery case in DeKalb County, an attorney will need to file a request for a Probable Cause and Bond hearing. This hearing will determine whether or not there is enough evidence to even prosecute you for Armed Robbery. If there is not, the charges can get thrown out at this stage. If the Judge does find probable cause that an Armed Robbery had occurred and you were the person who did it, or was a party to it, then the Judge “binds the case over to Superior Court” since that is the court with jurisdiction to proceed over the case. Once in the DeKalb County Superior Court, the Judge can consider whether or not to release the person on bond.

The court may release a person on bond if the court finds that the person:

(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; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

These are known as the Ayala factors in Georgia based after the case that laid out our standards in bond determination. Ayala v. State, 262 Ga. 704 (1993).

If a bond is granted, there may be certain conditions attached. For example, the Judge may order you to have a curfew, or stay away from the alleged victim in this case.

The Armed Robbery case will then proceed with an Indictment, and later an Arraignment court date where a Not Guilty plea is entered and Motions are filed. Throughout the case, your defense attorney will engage in Plea Negotiations with prosecutors from the DeKalb County District Attorney Office. During this process, the defense attorney will do intensive investigation to the facts and defenses of the case and represent client’s interests zealously.

There are several defenses to Armed Robbery cases in DeKalb County and throughout the State. First, if you were only present at the time it occurred, and you did not share the same criminal mentality of the co-defendants, then you cannot be guilty of Armed Robbery.  Simply being there when an armed robbery occurs is not a crime. The State still has to prove criminal intent beyond a reasonable doubt.

You can be charged with Armed Robbery as being a Party to a crime law in Georgia means that you can be convicted and sentenced as if you directly committed the crime- even if you did not directly commit the crime.  You can be charged with Party to a Crime to Armed Robbery if you:

1. Commit the crime

2. Intentionally aid or abet in the commission of the crime;

3. Intentionally advises, encourages, or counsels another to commit the crime.

This means you can be charged, convicted, and sentenced to Armed Robbery in DeKalb County if the State proves you encouraged the person to commit the crime, or if you provided them with the weapon, whether it be fake or not. All of this must be proven beyond a reasonable doubt, a very high standard in our Justice system.

Sentencing in Armed Robbery

As previously discussed, the stakes are high in Armed Robbery given a life or death sentence is allowed in Georgia law. Additionally, it has a mandatory minimum sentence of 10-20 years in prison. This is why it is imperative to move quickly in obtaining an Armed Robbery attorney early on to establish defenses and thoroughly investigate the case. The lawyers of W. Scott Smith are available 24/7 to answer you questions via a FREE CONSULTATION on Armed Robbery charges in DeKalb County and throughout the State. 404-581-0999

Armed Robbery in Atlanta/Fulton County, Georgia

By: Mary Agramonte

            Armed Robbery occurs when someone takes property from someone by use of a weapon, device, or a replica weapon. It is treated seriously under Georgia law in that it is a “capital felony.” A capital felony is a crime that is punishable by life or death in the State of Georgia. This blog lays out the criminal justice process for someone who has been arrested for Armed Robbery in Fulton County.

            The first thing that happens after someone is arrested for Armed Robbery in Fulton County is that they will see judge in their First Appearance hearing. This typically occurs within 48-72 hours of the person being arrested, depending on whether or not there was an arrest warrant., and it occurs at the Fulton County Jail at 901 Rice Street in Atlanta. At the First Appearance hearing, a Fulton County Magistrate Judge will read the charges to the suspect, as well as inform them of their right to counsel and right to remain silent. In some types of cases, bond can be considered at a First Appearances hearing. However, in Armed Robbery cases, the procedure is different. This is because only Superior Court Judges can hear bond arguments for the crime of Armed Robbery. This means unless the First Appearance Judge is “sitting in designation” then a bond will not be set or considered at the onset of arrest at the initial hearing.

Following the arrest and First Appearance hearing in Armed Robbery case in Fulton County, an attorney will need to file a request for a Probable Cause and Bond hearing. This hearing will determine whether or not there is enough evidence to even prosecute you for Armed Robbery. If there is not, the charges can get thrown out at this stage. If the Judge does find probable cause that an Armed Robbery had occurred and you were the person who did it, or was a party to it, then the Judge “binds the case over to Superior Court” since that is the court with jurisdiction to proceed over the case. Once in the Fulton County Superior Court, the Judge can consider whether or not to release the person on bond.

The court may release a person on bond if the court finds that the person:

(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; and

(4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

These are known as the Ayala factors in Georgia based after the case that laid out our standards in bond determination. Ayala v. State, 262 Ga. 704 (1993).

If a bond is granted, there may be certain conditions attached. For example, the Judge may order you to have a curfew, or stay away from the alleged victim in this case.

The Armed Robbery case will then proceed with an Indictment, and later an Arraignment court date where a Not Guilty plea is entered and Motions are filed on. Throughout the case, your defense attorney will engage in Plea Negotiations with prosecutors from the Fulton County District Attorney Office. During this process, the defense attorney will do intensive investigation to the facts and defenses of the case and represent client’s interests zealously.

There are several defenses to Armed Robbery cases in Fulton County and throughout the State. First, if you were only present at the time it occurred, and you did not share the same criminal mentality of the co-defendants, then you cannot be guilty of Armed Robbery.  Simply being there when an armed robbery occurs is not a crime. The State still has to prove criminal intent beyond a reasonable doubt.

You can be charged with Armed Robbery as being a Party to a crime law in Georgia means that you can be convicted and sentenced as if you directly committed the crime- even if you did not directly commit the crime.  You can be charged with Party to a Crime to Armed Robbery if you:

1. Commit the crime

2. Intentionally aid or abet in the commission of the crime;

3. Intentionally advises, encourages, or counsels another to commit the crime.

This means you can be charged, convicted, and sentenced to Armed Robbery in Fulton County if the State proves you encouraged the person to commit the crime, or if you provided them with the weapon, whether it be fake or not. All of this must be proven beyond a reasonable doubt, a very high standard in our Justice system.

Sentencing in Armed Robbery

As previously discussed, the stakes are high in Armed Robbery given a life or death sentence is allowed in Georgia law. Additionally, it has a mandatory minimum sentence of 10-20 years in prison. This is why it is imperative to move quickly in obtaining an Armed Robbery attorney early on to establish defenses and thoroughly investigate the case. The lawyers of W. Scott Smith are available 24/7 to answer you questions via a FREE CONSULTATION on Armed Robbery charges in Fulton County and throughout the State. 404-581-0999

Georgia Criminal Law – Auto Theft Offenses

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

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.

Georgia Criminal Law – Felony Murder

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

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.

Georgia Criminal Law – Aggravated Assault Basics

Aggravated assault is a very serious and frequently charged criminal offense. This article serves to explore the nature of the charge and the possible punishment if convicted.

The Offense

Under O.C.G.A. § 16-5-21, a person commits the offense of aggravated assault when they:

  1. Commit an “assault” on a victim; and
  2. The assault was aggravated by:
    1. An intention to murder, rape, or to rob;
    1. Use of a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury;
    1. Use of any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation; or
    1. The person discharging a firearm from within a motor vehicle toward a person or persons without legal justification.

Put differently, aggravated assault has two essential elements that must be proven beyond a reasonable doubt: (1) that an assault was committed on the victim and (2) that it was aggravated by (a) an intention to murder, to rape, or to rob or (b) use of a deadly weapon.  Durden v. State, 327 Ga.App. 173, (2014). An underlying simple assault is required to be proven.

O.C.G.A. § 16-5-20 states that a person commits the offense of simple assault when he or she either:

  1. Attempts to commit a violent injury to the person of another; or
  2. Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

As we can see, this basic assault statute combined with any of the above statutory aggravators can result in a felony conviction for aggravated assault.

It is important to note proof of actual injury is not required. The law punishes even the mere possibility that serious injury would result from the use of deadly weapon, object, device, or instrument. The “deadly” nature or character of a weapon is determined by the jury.  These instruments, devices, or objects can include, but are not limited to: hands and feet, knives, axes, hatchets, and other sharp instruments, blunt instruments such as baseball bats, clubs, or irons, fires, motor vehicles, pepper spray, bottles, books, pens, phones, sticks, use of an animal, and even furniture.

Punishment

The range in punishment depends on the status of the alleged victim. Generally, a person convicted of aggravated assault may be sentenced to prison for 1 to 20 years. If the alleged victim is a peace officer, correctional officer, officer of the court, or emergency health worker, the penalty ranges from 5 to 20 years of imprisonment. If the victim is 65 years of age or older, the penalty ranges from 3 to 20 years imprisonment. If the aggravated assault is committed in a public transit vehicle or station, the punishment ranges from 3 to 20 years. If an aggravated assault is committed against a student, teacher, or school personnel within a school safety zone, the penalty ranges from 5 to 20 years imprisonment. If the aggravated assault is committed with the intent to rape a child under age of 14, the penalty ranges from 25 to 50 years imprisonment. These prison sentences may also include fines, terms of probation, and restitution to the alleged victim.

Contact Us

Aggravated assault is a serious criminal offense.  If you or a loved one has been charged with aggravated assault, please contact our office today at 404-581-0999 for a free consultation. Our firm has successfully handled aggravated assault cases resulting in dismissals, reductions, and jury trials in multiple jurisdictions across Georgia.