Felony Murder

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If an individual dies during the commission of a dangerous felony the aggressor can be charged with felony murder even if there was no intent to cause a death. For example, if person X fights person V with no intention of ending V’s life but V ends up dying from his injuries. X will likely be charged with aggravated battery for the beating and felony murder based on the aggravated battery because V died from the injuries he sustained during the felony of aggravated battery by X.

If you or a loved one has been charged with felony murder it is important to reach out to a qualified criminal defense attorney as soon as possible. The penalty for felony murder is the SAME as a murder committed with the intent to kill. It carries a mandatory sentence of life in prison, with or without parole. In Georgia, 30 years of the life sentence must be served before you are eligible for parole. Give us a call at 404-581-0999 for a free consultation.

Sodomy in Fulton County

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Sodomy is a serious crime in Fulton County.  O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A.  §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

If you are arrested in Fulton County for sodomy or aggravated sodomy, you will be in the Fulton County jail at 901 Rice Street. You will be on the first appearance calendar the next morning at the Fulton County jail at 11:30am. After that date, you will be a preliminary hearing in Fulton County Magistrate Court.

Once your case is indicted, it will be transferred to Fulton County Superior Court for trial.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Marijuana Offenses in Georgia

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There are several ways the State can charge you with marijuana offenses in Georgia:

  • Possession of Less Than an Ounce– If you are arrested with less than an ounce of marijuana, you will be charged with a misdemeanor. The penalty includes up to a $1,000 fine and up to 12 months in jail.
  • Possession of More Than an Ounce– If you are arrested with more than an ounce of marijuana, you will be charged with a felony. The penalty is 1-10 years and a fine.
  • Possession With Intent to Distribute– If you are arrested with marijuana and the State can prove that you intended to distribute the marijuana, they can charge you with possession with intent to distribute. The intent part of the charge requires proof by the State, but they can prove you intended to distribute the marijuana by bringing in witnesses to testify or with other evidence such as scales or packaging material. If you are found guilty of possession with intent to distribute, the first offense carries a possible prison sentence of 1-10 years. A second or subsequent offense carries a mandatory 10 years in prison and up to 40 years.
  • Trafficking Marijuana– If you are arrested with more than 10 pounds of marijuana, you will be charged with trafficking marijuana. The State only has to prove that you knowingly possessed the marijuana, not that you knew the weight of the marijuana. If the weight of the drug is 10-2,000 pounds, the penalty is 5 years in prison and a $100,000 fine. If the weight of the drug is 2,000-10,000 pounds, the penalty is 7 years in prison and a $250,000 fine. If the weight is more than 10,000 pounds, the penalty is 15 years in prison and a $1 million fine.

If you are charged with a marijuana offense, it is important to hire an experienced attorney to help defend you. First, it is important that the search that resulted in the drugs being found did not violate your constitutional rights. Next, the lawyers at W. Scott Smith will explore your possible defenses, such as lack of intent or lack of knowledge. The lawyers at W. Scott Smith have years of experience defending marijuana offenses. If you are charged in Fulton, Gwinnett, Cobb, Clayton, Dekalb, Cherokee, Fayette, or Barrow County, call our office at 404-581-0999 for a free consultation.

Douglas County – Obstruction of a Law Enforcement Officer – Criminal Defense Attorney

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Obstruction of a law enforcement officer can be either a misdemeanor or a felony depending on the facts of the case. The Statute governing Obstruction of a Law Enforcement Officer can be found at O.C.G.A. 16-10-24. If the case is prosecuted as a misdemeanor, the Douglas County Solicitor’s Office will prosecute the case, whereby if it is a felony charge, it will be sent to the Douglas County District Attorney’s Office. The biggest difference between a misdemeanor obstruction case and the felony obstruction case is the maximum punishment if convicted. If you have been arrested in Douglas County for Obstruction of a Law Enforcement Officer, the first step is to be brought in front of a Douglas Magistrate Judge for a First Appearance hearing. At the First Appearance hearing, the Judge will read off the charges, notify you of your rights, and possibly set a bond. An attorney can be present at this stage to advocate for a reasonable bond.

 

Douglas County Misdemeanor Obstruction

Misdemeanor obstruction is when one knowingly and willingly obstructs or hinders a law enforcement officer in the discharge of his or her lawful duties. This includes police officers, but also probation officers,  jailers, or game wardens.

 

There are a few ways one can “obstruct” an officer under Georgia law. First, you can prevent an officer from discharging their official duties by running away, arguing, lying, or doing something that makes it more difficult or completely prevents them from doing their job. This would be classified as misdemeanor obstruction in Georgia and is punishable by up to twelve months in jail and/or a fine of up to $1,000. You don’t have to make any physical contact with the officer to be charged with misdemeanor obstruction. Felony obstruction, on the other hand, typically does involve physical contact with an officer, or a threat of violence.

 

Douglas County Felony Obstruction

Felony Obstruction is more serious under Georgia law and typically involves violence or threats of violence.  If you make violent contact with an officer in the process of he or she discharging their legal duties, or you threaten violence on an officer, you may be charged with felony obstruction of justice. Felony obstruction, both in DeKalb and across the State, carries a mandatory one-to-five year sentence for a first offense. It is a mandatory 2 to 10 years on a second offense, and 3 to 15 years on a third.

 

Defenses to Obstruction in Douglas County and in Georgia

Both felony and misdemeanor Obstruction of Law Enforcement cases are taken seriously in the DeKalb County justice system and throughout the State. There are, however, numerous defenses. For example, it is not against the law to obstruct a police officer during an unlawful arrest. Under Georgia law, it is also not Obstruction of a Law Enforcement to Officer to not immediately respond to an officer’s order. In order to obstruct, there must first be a clear command by law enforcement, not simply a request. As you can see, Obstruction of Law Enforcement is a fact-based inquiry under Georgia law. If you have been charged with Obstruction of a Law Enforcement Officer in Douglas County, call us today at 404-581-0999 so we can get you into the office for a free consultation.

Conditional Discharge

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Conditional Discharge or Drug First Offender is a once in a lifetime opportunity that allows someone who has been charged for the first time with possessing drugs or a non-violent property crime related to drug or alcohol addiction to resolve their case without a felony conviction. The resolution will typically involve probation and some sort of rehabilitation and treatment. Once the terms of the sentence are completed successfully the case will be dismissed and will not be considered a conviction. If you or a loved one has been charged with a drug offense you need to speak with an experience attorney to determine if you could be eligible for conditional discharged. Please give us a call at 404-581-0998 for a free case consultation.

First Offender

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If you have been charged with a felony offense (with some exceptions) and have never pleaded guilty to or been convicted of a felony, you may be eligible for First Offender treatment under OCGA § 42-8-60. Charges that are considered serious violent felonies, e.g. murder, armed robbery, kidnapping, etc and sexual offenses are not eligible for First Offender treatment.

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

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

 

Aggravated Stalking

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By: Attorney Erin Dohnalek

In Georgia, aggravated stalking is charged as a felony. It is set out in O.C.G.A. § 16-5-91. This statute states that an individual commits aggravated stalking when:

  • He/she violates a “no contact” or “stay away” provision of their bond;
  • He/she violates a temporary restraining order, temporary protective order, permanent protective order, preliminary injunction, or permanent injunction ordering them to have no contact with the alleged victim;
  • He/she violates a “no contact” or “stay away” condition of their pretrial release, condition of probation, or condition of parole; and
  • The individual follows, places under surveillance, or contacts the alleged victim without his/her consent for the purpose of harassing and intimidating.

In Georgia, there is no requirement that the accused has to have actual notice of the “no contact” provision as a condition of bond, pretrial release, probation/ parole, or from a temporary protective order. The contact alone is enough, even if the accused was not aware of the “no contact” order. See Revere v. State, 277 Ga. App. 393 (2006). “Contact” can also be established by phone, email, or mail. It does not need to be in-person contact in order to be sufficient to convict for aggravated stalking. See Murden v. State, 258 Ga. App. 585 (2002).

Additionally, even if the alleged victim allowed contact, or initiated contact, after the “no contact” provision was ordered, that does not mean that an accused can no longer be prosecuted for aggravated stalking. An accused can be prosecuted if the alleged victim changes his/her mind, and decides that they no longer want contact with the accused, if at the time of the contact there is a “no contact” provision in place. See Revere v. State, 277 Ga. App. 393 (2006).

Finally, a single incident of stalking is not sufficient to convict an accused of aggravated stalking. There must be a pattern of harassing and intimidating conduct, and generally a single incident alone is not enough. See State v. Burke, 287 Ga. 377 (2010).

Sentencing:

Any individual convicted of this crime will be sentenced to 1-10 years in prison, and fined up to $10,000. However, the reduced charge of aggravated stalking is characterized as a “violation of a criminal protective order.” This charge is a misdemeanor and the sentencing is much less punitive. An experienced criminal defense attorney may be able to negotiate sentencing to fall under the misdemeanor statute.

Contact Us

Due to the severity of the punishment for aggravated stalking, it is of vital importance to speak with an experienced criminal defense attorney about your case. At the Law Offices of W. Scott Smith, our lawyers are trained to know every aspect of this crime, we understand the defenses to the charge, we take pride in advocating for our clients’ constitutional rights, and we detail all options for our clients when defending their case. If you or a loved one has been charged with aggravated stalking, please call our office today at 404-581-0999 for a free consultation.

I am under 21 and got a DUI… help!

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If you are under 21 and have been charged with DUI, it is important to note that there are big differences between defending a DUI when someone is over 21 and a DUI where you were under 21.

The biggest difference between them is the acceptable blood alcohol content for young drivers. While the legal limit for drivers 21 and over is .08, drivers under 21 may not “be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more at any time within 3 hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.” OCGA 40-6-391(k)(1). This means that folks under 21 can drink less and still be considered DUI.

The other main difference is the mandatory minimum punishment under law. For a first offense in 5 years, folks under 21 who plead or are found guilty to DUI must be sentenced to 1 day in jail (although you will receive credit for any time you already served, and may be able to serve your time on weekends or during non-working hours), 40 hours of community service which must be completed within 60 days of the date of sentencing, an alcohol and drug evaluation and any additional treatment recommended by the evaluator, an a DUI Risk Reduction class. You must also be on probation for 12 months. Your license may also be suspended.

If you are under 21 and you have been charged with DUI, it is important to understand your rights and any defenses. Call our office for a free consultation. 404-581-0999.

Keeping Evidence of Bad Character Out of Your Trial

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It is not uncommon in criminal cases for the state to attempt to introduce evidence of other bad things defendants have done. The Georgia Rules of Evidence are very clear that this evidence can not be admitted for propensity purposes. That means the state can’t introduce bad character evidence just to try to make the jury believe that because a defendant acted a certain way in the past that they acted in the same way during the commission of whatever crime they are charged with. For example, if you are charged with armed robbery, the state cannot admit evidence that you were involved in another armed robbery just to say “because he armed robbed someone in the past, he armed robbed someone this time”. But the state will also often try to use the Rules of Evidence to get around this ban on bad character evidence. If the state can convince a judge that they are attempting to bring in the evidence as proof of intent, motive, knowledge, identity, plan, or purpose, they will be allowed to present the evidence.

Additionally, the evidence the state is attempting to introduce should be kept out if any probative value (i.e., usefulness) is substantially outweighed by prejudice to the defendant. It is important to hire an attorney who will zealously fight to keep any bad character evidence out of your trial. At the Law Offices of W. Scott Smith, we fight to protect our clients and will work tirelessly to prevent the state from being able to introduce this bad character evidence to the jury. If you have been charged with a serious crime like murder, rape, armed robbery, or aggravated assault in Fulton, Cobb, Dekalb, Gwinnett, Clayton, or Rockdale Counties, call our office at 404-581-0999 for a free consultation.

Arrested for Gang Activity in Clayton County

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The Clayton County District Attorney’s office is cracking down on gangs in Clayton County. If you are charged with being in a criminal street gang, do not make any statements to the police. You have a Constitutional right to remain silent.

If you are arrested for being in a criminal street gang, then you will be in front of a Clayton County Magistrate Court judge the following day after your arrest. You will need an attorney for this hearing.

OCGA 16-15-4 sets out the offenses that are related to criminal street gang activity.

It is unlawful for:

  1. A person employed or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of a crime.
  1. Any person to commit an offense with the intent to obtain or earn membership or maintain or increase his or her status or position in a criminal street gang.
  2. Any person to acquire or maintain, directly or indirectly, through criminal gang activity or proceeds derived from any interest in or control of any real or personal property of any nature, including money.
  3. Any person who occupies a position of organizer, a supervisory position, or any other position of management or leadership with regard to a criminal street gang to engage in, directly or directly, or conspire to engage in criminal gang activity.
  4. Any person to cause, encourage, solicit, recruit, or coerce another to become a member or associate of a criminal street gang, to participate in a criminal street gang, or to conduct or participate in criminal gang activity.
  5. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to deter such person from assisting a member or associate of a criminal street gang to withdraw from such criminal street gang.
  6. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for refusing to or encouraging another to refuse to become or obtain the status of a member or associate of a criminal street gang.
  7. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for refusing to or encouraging another to refuse to become or obtain the status of a member of associate of a criminal street gang.
  8. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to punish or retaliate against such person for providing statements or testimony against criminal street gangs or any criminal street gang member or associate.
  9. Any person to communicate, directly or indirectly, with another any threat of injury or damage to the person or property of the other person or of any associate or relative of the other person with the intent to intimidate, deter, or prevent such person from communicating to any law enforcement or corrections officer, prosecuting attorney, or judge information relating to criminal street gangs, criminal street gang members or associates, or criminal gang activity.

 

The Clayton County District Attorney’s office is indicting many cases under the street gang statute. You do not have to be an actual gang member to be indicted under this statute.

The sentence for a conviction for OCGA 16-15-4 is a minimum of 5 years in prison and a maximum of 20 years in prison and a fine between $ 10,000 – $ 15,000.

If you are charged in Clayton County with violating the criminal street gang statute, please call us at 404-581-0999. You need to zealously defend yourself against these allegations.