Georgia’s New Second Chance Law – Misdemeanor Record Restriction (Expungement)

By: Mary Agramonte

A new expungement law is on the way, which will come as great news to the millions of Georgians who have a criminal history. Governor Kemp recently signed SB 288 into law after state leaders unanimously approved the bill. Georgia’s new “Second Chance Law” will become effective on January 1, 2021 providing Georgians with an opportunity to expunge certain misdemeanor cases, both a victory and a first in Georgia.

Georgia historically has not had favorable expungement laws on the books. Under current Georgia law, criminal convictions stay on a person’s record forever. Convictions never ‘age off’ no matter the time that has elapsed, or the strides made for rehabilitation. This places a staggering number of Georgians at a disadvantage for employment, housing, higher education, and other opportunities.

Georgia’s current law disallowing expungement has been troublesome for the hundreds of thousands of people who get caught up in our justice system each year. In fact, Georgia leads the nation, by far, in placing people on probation following conviction.  The United States Bureau of Justice Statistics reported that 433,200 people in Georgia were on probation at the end of 2018. According to Second Chance for Georgia (INSERT link: https://www.secondchancegeorgia.org/), 4.3 million people have a criminal record in Georgia. This means that an astounding 40% of Georgia’s adult population carry a criminal history through life, resulting in more than 1/3 of the State’s population having barriers to advancement in careers and other opportunities.

This new change in Georgia law will allow individuals to petition the court to have certain misdemeanor convictions restricted and sealed off their record after living a crime free life for four years. This is a process sometimes referred to as “expungement,” but is called “record restriction” in Georgia.  So long as a person has completed the terms of their sentence and has had no new convictions for at least four years, then SB 288 allows the individual to petition the Court to restrict the misdemeanor off their record.

Upon petition and a request for a hearing, the Court will conduct a balancing test to determine whether to restrict the misdemeanors off the criminal history. The hearing must take place within 90 days of the request. Under the new SB 288 law, the Court must grant the petition to restrict the criminal history records if it determines that the harm resulting to the individual clearly outweighs the public’s interest in the criminal history being publicly available. Factors such as the nature of crime, the loss of career opportunities, time elapsed since conviction, and proven rehabilitation will all become relevant inquiries for the Court.

Under SB 288, certain crimes will continue to be ineligible for record restriction in Georgia. This means that the following crimes cannot be expunged following a conviction:

  • Family Violence Assault and Battery
  • Family Violence Stalking
  • Hindering 911 call
  • Child Molestation or Enticing a child for indecent purposes
  • Public indecency
  • Pimping and pandering
  • Sexual Battery
  • Theft by Taking, Theft by Deception, Theft by Conversion
  • Serious Traffic Offenses (Reckless Driving, DUI, Homicide by Vehicle, Serious Injury by Vehicle, Fleeing or Attempting to Elude, and Aggressive Driving)

Crimes that will be eligible under the new law for potential record restriction include but are not limited to:

  • Possession of Marijuana
  • Possession of Drug Related Objects
  • Shoplifting
  • Non-Domestic Battery and Assault
  • Minor in Possession of Alcohol
  • Giving False Name, False Report, or False Statement
  • Criminal Trespass
  • Loitering
  • Terroristic Threats
  • Disorderly Conduct
  • Driving with a Suspended License

 

Some felonies are included in this expansion as well. For example, if someone has been convicted of a felony charge, but were issued a pardon, they too can petition a Judge to restrict and seal the charge off their record under the new law.

Who is eligible to petition the court for record restriction or expungement?

Anyone who was convicted of a misdemeanor crime, (other than the crimes explicitly exempt under the statute), and have had no new convictions in the past four years.

How many cases can I ask to be restricted?

Individuals will be allowed to petition the court for record restriction on two misdemeanor cases (a case can include multiple misdemeanor offenses under one accusation).

What happens if the Judge denies the request for record restriction?

You can request the record restriction again after waiting two years from the Judge’s denial.

How do I obtain record restriction under SB 288?

The new law requires you file a motion into the court you were convicted requesting the misdemeanor be restricted and expunged. A court order is required in order for your criminal history to be expunged under the new law.

Keep in mind that record restriction is not limited to misdemeanor convictions discussed in this blog under the new SB288 law and can be, at times, automatic. For example, if you were arrested after July 1, 2013, and the case against you was dismissed, or you were fully acquitted at trial, the charge will be automatically restricted when the clerk enters that disposition into the GCIC system. Arrests prior to July 1, 2013 that resulted in dismissal require a request and separate process for restrictions, but are eligible.

The best way to know what is on your criminal history is to request a copy of your GCIC under Purpose Code “E” from a local police department or sheriff’s office.  If you or a loved one is one of the millions of people carrying a criminal history through life in Georgia, the Second Chance law may come as a reprieve. The attorneys at W. Scott Smith are versed on all aspects of Georgia’s expungement and record restriction laws and are available for a FREE CONSULTATION by calling 404-581-0999.

Georgia Criminal Law – Party to a Crime

This blog serves to explore this fundamental question: Who can be charged with a criminal offense?

The Offense

O.C.G.A. § 16-2-20(a) provides, every person “concerned in the commission of a crime” is a party thereto and may be charged with and convicted of commission of the crime.

What does it mean to be “concerned in the commission of a crime”?

O.C.G.A. § 16-2-20(b) states a person is concerned in the commission of a crime only if he:

(1) Directly commits the crime;

(2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity;

(3) Intentionally aids or abets in the commission of the crime; or

(4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

Therefore, under Georgia law, a person may be convicted of a crime even if he or she does not directly commit the crime, but is instead a party to the crime. Demps v. State, 337 Ga.App. 657 (2016). To be convicted as a party to a crime, there must be proof, beyond a reasonable doubt, that he or she intentionally aided or abetted the commission of the crime, or intentionally advised, encouraged, hired, counseled, or procured another to commit the crime. Lonon v. State, 348 Ga.App. 527 (2019).

Importantly, all of the participants in a plan to commit a crime are criminally responsible for the acts of each other, committed in the execution of the plan, and which may be said to be a probable consequence of the unlawful design, even though the particular act may not have actually been a part of the plan. Cisneros v. State, 299 Ga. 841, (2016). For example, if Bob, Joe, and Rob all agree to rob a bank, and during the robbery Rob spontaneously kills a bank teller, both Bob and Joe could be convicted of murder because they are a party to the crime.

Whether a person is a party to a crime may be inferred from that person’s presence, companionship, and conduct before, during, and after the crime. Harper v. State, 298 Ga. 158 (2015). Other examples include:

  • Serving as the getaway driver in an armed robbery.
  • Turning off the alarm system of a store in where you work, knowing that it will be robbed later that day.
  • Providing a firearm to someone who you know is planning to commit a crime.
  • Directing a vehicle to a location where you know an armed carjacker is waiting.

But, mere presence at the scene of a crime and mere approval of the criminal act are not sufficient evidence to establish that the defendant was a party to the crime.  Garcia v. State, 290 Ga.App. 164 (2008).

Contact Us

If you or someone you know 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 multiple jurisdictions across Georgia.

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

Yes, Criminal Cases are Still Moving Forward in Georgia during COVID-19

You may have received a traffic citation, or a citation for misdemeanor possession of marijuana or theft by shoplifting. The officer may have released you on citation instead of taking you to a local detention facility for arrest. This doesn’t mean your case should be ignored, or is not a big deal, now. Cases are being heard in most municipal courts in the State. In fact, many municipalities and counties may ask you to come in and provide fingerprints at a later date when conditions are more safe.

In the past week, our firm has been present for shoplifting, DUI, and marijuana cases in Roswell, Marietta, Acworth, Kennesaw, Douglasville, Sandy Springs, Jonesboro, Forest Park, and many other municipal courts across the state.

Having an attorney represent you at this time can prevent you from having to appear and potentially risk your health. An attorney can also work with the prosecutor to try and get you the best possible outcomes during this time, working on lowering fines, reducing community service, and preventing other activities that may put you at risk for coronavirus exposure.

Our office is available right now to discuss your case with you. Call us at 404-581-0999 for a free consultation. We understand you may be feeling nervous or scared during these uncertain times, and we are here to help.  

Georgia Criminal Law – Criminal Damage to Property

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

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.

Criminal Defense in Newton County, Georgia

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.

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.