Recidivist Statute and Three Strikes Rule in Georgia Criminal Law

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A felony conviction has serious consequences. Punishment for a felony offense typically includes prison time, probation, fines, loss of constitutional rights and privileges, and a lifelong blemish on the person’s criminal record. Not only does a felony conviction impact the person’s ability to obtain employment and housing, but, under O.C.G.A. § 17-10-7, a prior felony conviction can be used to enhance a sentence on a new felony conviction. This article serves to explore the “Repeat Offenders” statute dealing with recidivist sentencing and Georgia’s ‘three strikes’ rule.  

O.C.G.A. § 17-10-7 (a) – Recidivist Provision

If someone has one prior felony conviction and they are convicted of a felony a second time, the judge must to sentence the offender to the maximum term of imprisonment as set out in the statute they’ve been convicted of. However, the judge does have the discretion to probate or suspend that maximum sentence. Furthermore, in order to obtain a recidivist sentence under 17-10-7, the State must give the defendant clear notice before trial of its intention to seek such a sentence; the State must also prove that the prior conviction was for a crime which, if committed within Georgia, would be a felony.  Wheeler v. State, 270 Ga.App. 363 (2004).

O.C.G.A. § 17-10-7 (c) – Three Strikes Rule  

Any person who has been convicted of three felonies and commits a felony within Georgia shall, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided for the sentence. The judge will not be able to reduce the sentence, the offender will not be eligible for parole until the maximum sentence has been served, and early release is unavailable. A person sentenced under the Three Strikes Rule will have to serve every day of the imposed sentence.

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If you or a loved one is facing criminal prosecution, as a recidivist or not, 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 multiple jurisdictions across Georgia.

Georgia Criminal Law – Criminal Damage to Property

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There are several laws in Georgia intended to protect property in the interest of human life and safety. This blog article serves to explore the nature of these offenses and discuss the possible punishment if convicted.  

Criminal Damage to Property in the First Degree

O.C.G.A. § 16-7-22 defines the offense as when a person:

(1) Knowingly and without authority interferes with any property in a manner so as to endanger human life; or

(2) Knowingly and without authority and by force or violence interferes with the operation of any system of public communication, public transportation, sewerage, drainage, water supply, gas, power, or other public utility service or with any constituent property thereof.

Criminal damage to property in the first degree is a crime against the State involving the unauthorized interference with property in a manner that endangers human life. The phrase requiring defendant’s interference with the property be done “in a manner so as to endanger human life” means reckless endangerment rather than actual endangerment. As a result, successful prosecution of this offense does not require proof that the person actually injured the owner of the property. Furthermore, the State does not have to prove value or legal title of the property. It is enough the prosecution prove the person had a legal right to possess or occupy the property that was damaged. Some examples of this offense includes: firing gunshots into an apartment, dwelling, or vehicle, setting fire to a building, and throwing a rock at vehicle from overpass. It is important to note that this offense may serve as the basis for felony murder.

Any person convicted of this offense is guilty of a felony and may be imprisoned between 1 and 10 years.

Criminal Damage to Property in the Second Degree

O.C.G.A. § 16-7-23 provides, [a] person commits the offense of criminal damage to property in the second degree when he:

(1) Intentionally damages any property of another person without his consent and the damage thereto exceeds $500.00; or

(2) Recklessly or intentionally, by means of fire or explosive, damages property of another person.

Criminal damage to property in second degree is a general intent crime, which requires only a general intent to do the act, i.e., damaging another person’s property. Under section (1), the value of property is required to be proven and the value has to be greater than $500. In assessing value, the focus is on the value of the tangible item itself, not the total expenses of the owner in connection with property damage. Value does not have to be proven, however, if charged under section (2).

A person convicted of criminal damage to property in the second degree is guilty of a felony and may be imprisoned for 1 to 5 years.

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 Damage to Property cases in multiple jurisdictions across Georgia.

Georgia Criminal Law – Auto Theft Offenses

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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

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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.

Jasper County Georgia Criminal Defense

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If you have been charged with a crime in Jasper 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. If you are charged with a felony, then your case will begin in magistrate court and finish in superior court. The first appearance, initial bond hearing, and preliminary hearing are all heard by a magistrate judge at the Jasper County Jail located at 1551 GA-212 W, Monticello, GA 31064. After these initial hearings, your case will be transferred to Jasper County Superior Court in the Jasper County Courthouse located at 126 W Greene St., Monticello, GA 31064. The large courthouse which is on the Monticello town square, houses the Superior Court, Magistrate Court, Juvenile Court, and Probate Court of Jasper County.

Unlike some of the larger metropolitan counties, Jasper County does not have a state court so even misdemeanor offenses will be heard in the Superior Court if you wish to have a jury trial. If you are charged with a serious misdemeanor, then your case will go straight to Superior Court. Otherwise, your case will likely begin in Jasper County Probate Court where you can seek to negotiate lesser charges or have a bench trial where the judge hears the evidence and renders a decision.

If you are charged with a traffic ticket or low-level misdemeanor within the city limits of Monticello, your case will begin in the Municipal Court of Monticello located at 115 E Greene St., Monticello, GA 31064.

No matter where your case originates in Jasper County, we stand ready to defend you against any criminal charge.  Call us today at 404-581-0999 to ensure you get the best outcome possible.

Walton County Georgia Violent Crime

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If you are charged with a violent crime in Walton County, then you have come to the right place.  We have defended hundreds of violent charges ranging from simple battery to murder.  Walton County has no shortage of these cases, and we are often called to assist in defending these violent crime allegations.

The first step is to determine your charges which are usually stacked meaning that you can have 3 or more charges for one just one punch, kick or push.  The extent of the injury will largely dictate what you are charged with, but the alleged victim’s status can also play a role.  The alleged victim’s age, occupation, relationship to you, and the location of the incident all factor into the potential charge and corresponding penalties.

Regardless of your exact charge, we stand ready to assist in defending your case in Walton County.  If the alleged victim made a false allegation, then we look to the discredit the charge by presenting alibi evidence or witnesses who were present at the time of the alleged attack.  If there are no other witnesses, then it is just his or her word versus your word.  In those situations, we work to build up your character through your contacts in the community.  Simultaneously, we work to find discredit the alleged victim.  The reality of police work is that the person who makes the initial outcry (aka the 911 call) is usually the one who gets the labeled the victim while the other party gets hauled off to jail.  Of course, the officer is trained to look for injuries, but a savvy victim can injure himself or herself prior to the officer’s arrival just to add credibility to his or her story so injuries do not automatically equal guilt.

If you are not denying the violence, but instead seek to argue self-defense, then we argue that your actions were justified.  Georgia is a “Stand Your Ground” state that does not require you to retreat and allows you to defend yourself, your property, or even other people from what you believe to be an imminent threat of harm.  The amount of force used in those situations depends on the amount of force threatened by the other person.  These decisions are often made in the blink of an eye, and sometimes what you believed to be a threat turns out to be a cellphone instead of a gun.  Luckily, a reasonable mistake is still protected under the law.  How do you prove your actions were reasonable?  That requires the assistance of a skilled criminal defense attorney.

If you are charged with a crime of violence in Walton County, call our office today at 404-581-0999 for your free consultation.

Georgia Criminal Law – Felony Murder

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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

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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.

Fayette County Georgia Violent Crime Attorney

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If you are charged with a violent crime in Fayette County, then you have come to the right place.  We have defended hundreds of violent charges ranging from simple battery to murder.  Fayette County has no shortage of these cases, and we are often called to assist in defending these violent crime allegations.

The first step is to determine your charges which are usually stacked meaning that you can have 3 or more charges for one just one punch, kick or push.  The extent of the injury will largely dictate what you are charged with, but the alleged victim’s status can also play a role.  The alleged victim’s age, occupation, relationship to you, and the location of the incident all factor into the potential charge and corresponding penalties.

Regardless of your exact charge, we stand ready to assist in defending your case in Fayette County.  If the alleged victim made a false allegation, then we look to the discredit the charge by presenting alibi evidence or witnesses who were present at the time of the alleged attack.  If there are no other witnesses, then it is just his or her word versus your word.  In those situations, we work to build up your character through your contacts in the community.  Simultaneously, we work to find discredit the alleged victim.  The reality of police work is that the person who makes the initial outcry (aka the 911 call) is usually the one who gets the labeled the victim while the other party gets hauled off to jail.  Of course, the officer is trained to look for injuries, but a savvy victim can injure himself or herself prior to the officer’s arrival just to add credibility to his or her story so injuries do not automatically equal guilt.

If you are not denying the violence, but instead seek to argue self-defense, then we argue that your actions were justified.  Georgia is a “Stand Your Ground” state that does not require you to retreat and allows you to defend yourself, your property, or even other people from what you believe to be an imminent threat of harm.  The amount of force used in those situations depends on the amount of force threatened by the other person.  These decisions are often made in the blink of an eye, and sometimes what you believed to be a threat turns out to be a cellphone instead of a gun.  Luckily, a reasonable mistake is still protected under the law.  How do you prove your actions were reasonable?  That requires the assistance of a skilled criminal defense attorney.

If you are charged with a crime of violence in Fayette County, call our office today at 404-581-0999 for your free consultation.

Criminal Defense in Newton County, Georgia

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If you have been charged with a crime in Newton 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.  If you are charged with a felony, then your case will begin in magistrate court and finish in superior court.  The first appearance, initial bond hearing, and preliminary hearing are all heard by a magistrate judge at the Newton County Jail located at 15151 Alcovy Road, Covington, GA 30014.  After these initial hearings, your case will be transferred to Newton County Superior Court in the Newton County Judicial Center located at 1132 Usher St, Covington, GA 30014.  The Judicial Center also houses the Magistrate Court, Juvenile Court, and Probate Court of Newton County.

Unlike some of the larger metropolitan counties, Newton County does not have a state court so even misdemeanor offenses will be heard in the Superior Court.  If you are charged with a serious misdemeanor, then your case will go straight to Superior Court.  Otherwise, your case will likely begin in Newton County Probate Court or one of the three municipalities in Newton County:  Covington, Porterdale, or Oxford.  

If you are charged with a traffic ticket or low-level misdemeanor within the city limits of Covington, your case will begin in the Municipal Court of Covington located at 1143 Oak Street, Covington, GA 30015.

If you are charged with a traffic ticket or low-level misdemeanor within the city limits of Porterdale, your case will begin in the Municipal Court of Porterdale located at 2800 Main Street, Porterdale, GA 30014.

If you are charged with a traffic ticket or low-level misdemeanor within the city limits of Oxford, your case will begin in the Municipal Court of Oxford located at 110 West Clark Street, Oxford, GA 30054.

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