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.

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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.

Atlanta Georgia Criminal Law – Theft of Services

In Georgia, it is against the law to avoid payment of services, entertainment, accommodations, or the use of personal property. This is known as Theft of Services, found at O.C.G.A.  § 16-8-5.

Examples of Theft of Services include utilizing a cleaning or lawn care company, and then not paying. Other service examples could be legal services, hair styling services, or accounting services. Simply put, it is against the law to use someone’s services and then avoid payment. Theft of services in Georgia also includes theft of utility services like water and electricity. In that situation, you can be charged with numerous crimes for tampering with electric or water meters.

  In order for Theft of Services to be a criminal issue, thus potentially involving loss of liberty and a criminal history, the State must prove that the avoidance of payment was done by deception and with the intent to avoid the payment. Without deception and criminal intent, theft of services is more accurately defined as a civil or monetary legal issue, versus a criminal one. If the State is unable to prove deception or criminal intent to avoid the payment, there is a strong defense case for an acquittal. This is because civil courts are filled with people not paying other people back. In most instances, it is a contract issue. However, if there is the criminal intent to avoid payment and done so deceptively, the prosecuting attorney will bring the case to court.

So what is deception? Deception is defined in Georgia law for purposes of Theft of Services as providing knowingly false information to another with the intention to avoid payment. For example, Georgia law has held deception to be found when the suspect used a forged check to pay for lawn mower repair. In that situation, the State proved deception via the falsifying check as well as intention to avoid payment as the person never returned to make the payment.

What is the Punishment for Theft in Georgia?

  • If Theft of Services amount is:
    •  Less than $1,500: the maximum punishment is 12 months in jail and/or $1,000.
    • $1,500.01 – $5,000: 1 to 5 years imprisonment
    • $5,000.01 – $24,999.99: 1 to 10 years imprisonment
    • $25,000 or more: 2 to 20 years imprisonment

Note that there is increased punishment if the theft involved a fiduciary in breach of a fiduciary obligation. 

                So long as the amount of theft is less than $25,000, the trial court actually has discretion to treat it as a misdemeanor. Misdemeanors, if convicted, carry less harsh sentences. Misdemeanors also do not require the forfeiture of civil rights (i.e. to carry a firearm or sit on a jury).

                If you or a loved one has been arrested for Theft of Services, or any type of Theft case in Georgia, call us today for a FREE CONSULTATION at 404-581-0999.

Criminal Defense Lawyer in Macon-Bibb County

If you have been charged with a crime in Bibb County, then you have come to the right place.  We specialize in criminal defense and stand ready to defend you.  The first question that needs to be answered is where your case will be heard.  In Bibb County, all the various courts are housed within the judicial center located at 601 Mulberry St., Macon, Georgia 31201.  Once you arrive at the judicial center, you will need to find your particular court and courtroom.  If you were arrested or cited within the city limits of Macon, then your case may begin in the Macon-Bibb County Municipal Court.  The municipal court only hears low-level offenses including traffic violations, DUIs, and various other misdemeanors and city ordinance violations.  In municipal court, you can have a bench trial where the judge hears the evidence and makes a ruling, but you cannot have a jury trial wherein your peers would decide your fate.  Therefore, we only resolve a case in municipal court if we can get a better resolution than we otherwise would in state court.  If we cannot get a favorable result in municipal court, then we request a jury trial which requires the case to be transferred to state court.  You can find more info about the municipal court on their website: https://www.maconbibb.us/municipal-court/.

As mentioned above, any state law crime that originates in municipal court can be transferred to Bibb County State Court by requesting a jury trial, but more serious misdemeanors will go straight to state court from the outset.  Once your case is in state court, we continue our negotiations with the Bibb County Solicitor-General’s Office which prosecutes cases in state court.  If we are unable to obtain a resolution you find acceptable, then we maintain our demand for a jury trial and present your case to a six-person jury of your peers from Bibb County.  You can find more info about the solicitor-general and state court on their respective websites: https://www.maconbibb.us/solicitor/ and https://www.maconbibb.us/state-court/.

All felonies will be ultimately be heard in the Bibb County Superior Court, but initial appearances, bond hearings, and preliminary hearings are held in the Bibb County Magistrate Court (and sometimes these appearances are held at the jail with a magistrate judge presiding).  If the magistrate judge finds sufficient evidence to support your charges, then your case proceeds to the Bibb County Superior Court where we begin negotiations with the Macon Judicial Circuit District Attorney’s Office.  If we are unable to obtain a resolution you find acceptable, then we maintain our demand for a jury trial and present your case to a twelve-person jury of your peers from Bibb County.  You can find more info about the district attorney, magistrate court, and superior court on their respective websites:  https://macondistrictattorney.org,   https://www.maconbibb.us/civil-court/,   and https://www.maconbibb.us/superior-court/.

If you have been charged with a crime in Macon-Bibb County, call us today at 404-581-0999 to ensure you get the best outcome possible.

Georgia Criminal Law – Theft by Conversion, or Embezzlement

A common element across all theft crimes is the act of taking, obtaining, converting, or appropriating the property of another. But, absent this similarity, several distinct theft crimes exist under the large umbrella of theft crimes generally, such as: theft by taking, theft by deception, fraud, and theft by shoplifting, robbery, and theft by conversion. This aims to explain the crime of theft by conversion (commonly referred to as “embezzlement”), the punishment, and defenses.

The Offense

Theft by conversion occurs when the defendant, after lawfully receiving funds from another under an agreement to make a specified application of them, knowingly puts the money to his own use in violation of the agreement. O.C.G.A. § 16-8-4(a).

The statute also contains a provision applying to government workers and officers of financial institutions, “[w]hen, under subsection (a) of this Code section, an officer or employee of a government or of a financial institution fails to pay on an account, upon lawful demand, from the funds or property of another held by him, he is presumed to have intended to convert the funds or property to his own use.” O.C.G.A. § 16-8-4(b). This section ensures government and banking actors will act wisely with money entrusted to them by the public.

The stated purpose of the theft by conversion statute is to punish and deter fraudulent conversion, not mere breaches of contract or broken promises. That being said, the terms of the agreement are critical in determining whether an accused converted funds of another from a directed purpose to his own use. 

What separates theft by conversion from other theft crimes is that in theft by conversion the person accused comes into possession of the property lawfully, whereas in other theft crimes, the person accused obtains property secretly and unlawfully. In theft by conversion there is some form of entrustment.

Case Examples

Evidence that defendant did not return nor continue making rental payments on two televisions was sufficient to support determination that defendant converted televisions to her own use; defendant violated rental agreements’ obligations to make payments or return televisions to rental center, defendant moved televisions to another address without center’s knowledge or consent in violation of agreements, and center’s owner testified that each television had a retail market value of $649.87.  Williams v. State, 328 Ga.App. 898 (2014).

Evidence that defendant failed to return rented wood chipper to store, lied to store regarding his address and phone number, and moved to another country and assumed an alias after store management swore out a warrant for his arrest was sufficient to establish that defendant acted with criminal intent, as required to support conviction for theft by conversion. Terrell v. State, 275 Ga.App. 501 (2005).

Evidence was insufficient to support conviction for theft by conversion, in prosecution arising out of incident in which customer left van with defendant, a mechanic, for repair and van was not returned; there was no evidence that mechanic drove the van, that he cannibalized it for spare parts, or that he used it for any other purposes, except to perform work upon it, there was no evidence that defendant did anything to conceal the whereabouts of the van from the customer or keep her from possessing it, there was no evidence that defendant had anything to do with eventual disposal of van, and defendant did not attempt to flee. Thomas v. State, 308 Ga.App. 331 (2011).

Interestingly, the theft by conversion statute has been held unconstitutional by the Supreme Court of Georgia. In Sherrod v. State, 280 Ga. 275 (2006), the Court held the mandatory presumption contained in statute setting forth offense of theft by conversion of leased property that proof that demand letter was properly sent to lessee and that property was not returned within five days established guilt of offense, was unconstitutional, as it subverted presumption of innocence accorded to accused persons and invaded truth-finding task assigned solely to fact-finder.  

Punishment

Whether theft by conversion will be punished as a misdemeanor or felony depends on the value of the money or property stolen. If the value is less than $500, the offense will be charged as a misdemeanor. If the value exceeds $500, the offense will be charged as a felony. Misdemeanor theft by conversion is punishable by up to 12 months in jail and a $1,000 fine, or both. Felony theft by conversion is punishable by no less than one year in prison and no more than ten years imprisonment. In addition to imprisonment and fines, the court may also impose restitution as part of the sentence.

If the property is not returned, the court will use the following guidelines to assess the value of the stolen goods:

  • The market value of the property, determined by obtaining a quote from a supplier who sells property of similar character and value (the higher value of the date the conversion occurred versus the value on the date of trial)
  • Rental charges; and
  • Interest on unpaid balances at the legal rates until the debtor pays the converted funds

Defenses

  • No intent: the State has to prove the accused person converted the property for their own use knowingly and with fraudulent intent. If there is not such intent, the person cannot be convicted.
  • Consent: if the property owner gave the accused person permission to convert the property for the accused person’s own use, evidence of consent (email, text, letter) would provide strong support for the defense.
  • The property was used as intended: evidence indicating the property was used in a way contemplated by the agreement would also strongly aid the defense of a theft by conversion charge. There must be an action or statement showing the person accused intended to claim or use the property as their own.
  • Value: the State must prove value at trial. If the weight of the evidence attempting to prove value, then an essential element of the charge has not been met, and the accused person cannot be convicted.
  • Returning the property is not a defense: the fact an embezzler settled their debt or default does not destroy the criminality of the act. McCoy v. State, 15 Ga. 205 (1854).

Contact Us

If you or someone you know has been arrested and charged with theft by conversion, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll a local Atlanta attorney ready to aggressively fight on your behalf.