Family Violence Battery in Cobb County, Georgia

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A conviction for Family Violence Battery in Georgia can have consequences that go far beyond a conviction for other misdemeanors.   For some clients, this is their first interaction with law enforcement and their concerns include: jail time, a permanent mark on their criminal history , and the possibility of trial.   All of these concerns are very real when facing Family Violence Battery charges. This is especially true when charged with Family Violence Battery in Cobb County. This jurisdiction has specifically allocated money and resources in aggressively prosecuting domestic violence charges.  This article aims to explain the nature of the offense, punishments, and how these cases are handled within Cobb County.

 

The Offense

 

Georgia Criminal Code § 16-5-23.1 defines domestic violence (named “battery – family violence”) as whenever a battery, an intentional physical harm or visible bodily harm, is committed against “past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household.”

 

Therefore, in order to be charged with Family Violence Battery, the alleged victim must be within a certain relationship of the defendant:

 

  • A spouse
  • Persons who are parents of the same child
  • Children
  • Step-Children
  • Foster Children
  • Other persons living in the same household (roommates)

 

Punishment

 

A first conviction for Family Violence Battery is a misdemeanor that carries a maximum penalty of 12 months in custody and a $1,000 fine.  A second or subsequent conviction with the same family member (as classified above) or another family member results in a felony conviction with a maximum penalty of five years in prison.  O.C.G.A. § 16-5-23.1

 

While a first lifetime conviction of Family Violence Battery appears to be just a misdemeanor, there are several collateral consequences unknown to most people.  For example, because Georgia’s classification of Family Violence Battery falls within the Federal definition of “domestic violence,” a Georgia citizen who is convicted of Family Violence Battery is prohibited from possessing a firearm under Federal Law.

 

Furthermore, while the maximum penalty includes 12 months in custody and a $1,000 fine, many judges throughout the State will also require individuals convicted of Family Violence Battery to serve time on probation (in lieu of jail time), but with the conditions of completing a domestic violence program.  These programs go by several different names (usually Domestic Violence Intervention Program – DVIP), but they generally include 24 weeks of classes, counseling, and program fees that are not included in the fine ordered by the judge.  In addition, judges can add community service, counseling requirements, fines, and alcohol and drug evaluations.  It is important to know that your attorney can negotiate all of these things.

 

How it Works in Cobb

 

The first step after arrest is getting a bond. If charged with misdemeanor Family Violence Battery, the law provides you shall be given a bond (in all misdemeanor cases).  But, in addition to having to pay bail money to bond out, the judge will also typically impose a No Contact provision as a condition of your pre-trial release. For example, in a case where a husband is accused of battering his wife, and the couple have minor children who live with them, a judge will usually order the defendant to have No Contact with the wife (alleged victim), the children, and be prevented from returning to the shared home. This No Contact provision places a great burden and strain on the accused as a violation of this bond condition (any form of contact, direct or indirect) can land the accused person in custody until the case is resolved. Therefore, the accused has to find alternative living arrangements and be estranged from their family.

 

As a result, our office routinely files a Motion to Modify Bond Conditions to change the No Contact provision to No Violent or Harassing Contact. This will allow the accused to return home and have contact with the alleged victim and anyone else protected under the bond order; allowing the accused to return to some semblance of a normal lifestyle.

 

After arrest, a case file is created with the Cobb County Solicitor General’s Office. They are responsible for prosecuting misdemeanor cases within Cobb County. At first, the case will be “unaccused.” This simply means that no accusation has yet been filed on the case. An accusation is the official charging document for misdemeanors in Georgia. It is intended to provide notice to the accused of the charges, the dates of the offense, and information sufficient to place the defendant on notice of how to defend the case. An experienced attorney should periodically check to see whether the case has been accused prior to arraignment.

 

It is possible to resolve a Family Violence Battery charge prior to the filing of an accusation. Attorneys should contact the Solicitor General’s Office to see if they are eligible to be admitted into the Cobb County Domestic Violence Pre-Trial Intervention Program. If the accused successfully completes the DVPTI program, their charges will be dismissed with their records restricted.

 

Once a prosecutor reviews the file and believes there is at least probable cause to proceed upon, the accusation is filed and the case is formally “accused.” If accused and not eligible for DVPTI, the accused must begin preparing their case for a possible trial, subject to reaching a plea negotiation with the prosecutor. This includes investigating the case and gathering evidence. In our experience, Cobb County prosecutors are largely unwilling to outright dismiss Family Violence Battery charges. Therefore, defendants are typically confronted with deciding whether to take a no jail time plea deal to Family Violence Battery or proceed to trial.

 

Cobb County State Court prosecutors will often include multiple counts of Battery, Simple Battery, and Family Violence Battery within the accusation.  Unfortunately, many people go to court on their first court date, without exploring the consequences of a Family Violence Battery conviction, and enter a plea.  Whether the person committed the acts alleged or they simply just want to put this chapter of their life behind them, even though they’re innocent, it’s vital to consult with an attorney.  At the very least, an attorney can discuss the implications of being convicted of Family Violence Battery.

 

Contact Us

 

Being charged with Family Violence Battery can be a stressful event in anyone’s life.  At the Law Offices of W. Scott Smith, our lawyers are trained to explore the legal issues with every Family Violence Battery case.  We are aware of all the possible options available to avoid jail time and to protect your criminal history and ultimately your privacy.   If you or a loved one has been charged with Family Violence Battery, please contact our office today at 404-581-0999 for a free consultation.

 

 

 

Understanding Computer Trespass Crimes in Georgia

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By Mary Agramonte

 

In response to a growing number of computer-related crimes in both the government and private sectors, the State of Georgia enacted the Georgia Computer Systems Protection Act, O.C.G.A. §16-9-90 et. seq. The Act establishes four criminal offenses, all felonies, for violations of the Act: Computer Theft, Computer Trespass, Computer Invasion of Privacy, and Computer Forgery.

 

Computer Trespass is defined at O.C.G.A. § 16-9-93 as when any person who uses a computer or network with knowledge that such use is without authority and with the intention of (1) deleting or removing any program or data; (2) obstructing or interfering with the use of a computer program or data; or (3) altering, damaging, or causing the malfunction of a computer, computer network, or program.

 

The State of Georgia can still prosecute the felony case even if the removing of data is temporary, or if the damage to the computer is minimal or eventually restored. However, Georgia Courts have required that data must actually be hindered or interfered with. For example, in Kinslow v. State, an employee altered a network to get his supervisor’s e-mail rerouted to his own personal e-mail. The supervisor continued receiving his e-mails normally. The Supreme Court of Georgia in June of 2021 held that this was insufficient evidence of Criminal Trespass as the action never blocked or hindered the flow of data. Instead, the e-mails were going to the correct supervisor e-mail as well as being copying to the suspect’s private e-mail and thus he could not be found guilty of the felony crime of Criminal Trespass.

 

The State of Georgia will continue to vigorously prosecute computer crimes. If someone is found guilty of Computer Trespass, the maximum penalty is a $50,000 fine or 15 years in prison, or both. In some situations, if someone is charged with Computer Trespass, there may be enough facts to also charge them with the other computer crimes like computer theft and computer forgery, which can increase the sentencing if convicted. There is also a civil component to the Act, which allows for monetary damages for those who claim they have been victim to a computer crime in Georgia.

 

If you or a loved one has been charged with a computer crime in Georgia, call the Law Office of W. Scott Smith for a free consultation at 404-581-0999. An aggressive criminal defense team can investigate and raise numerous defenses in Computer Crime and Computer Trespass cases, and can protect you through the criminal justice system.

Possession of Marijuana with Intent to Distribute, How a Misdemeanor becomes a Felony

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I had a misdemeanor amount of weed (less than one ounce) but I am being charged with a felony, what gives?

The Offense

Pursuant to O.C.G.A. §16-13-30(j)(1), “it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute marijuana.” Even though the police and prosecutor may not be able to prove an actual sale occurred, they will try to discover and introduce circumstantial evidence that the person intended to distribute marijuana.

Circumstantial evidence of intent to distribute can include: scales, empty Ziploc bags, drug paraphernalia, large amounts of cash in different denominations, firearms, division of drugs into individual packages, cell phone data, or a prior conviction of possession with intent to distribute.

Possible Punishment

O.C.G.A. §16-13-30(j)(2) states that anyone violating O.C.G.A. §16-13-30(j)(1) “shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than ten years.” This charge is eligible for probation, but a felony conviction can create issues in obtaining employment, housing, and schooling.

If no defenses are available, certain sentencing options such as conditional discharge or first offender treatment may be available which ultimately result in the case getting dismissed.

Contact Us

If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

Homicide, Murder, and Manslaughter Charges in Georgia

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In our criminal justice system “homicide” is a broad umbrella term which encompasses different types of specific crimes. Homicide is generally defined as the killing of another person without justification or defense. This blog article aims to explore the different types of homicides under Georgia law.

 

Murder

 

O.C.G.A. § 16-5-1 sets out the ways a person can commit the offense of murder and second-degree murder.

 

  • A person commits the offense of murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.

 

Express malice is that deliberate intention unlawfully to take the life of another human being which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.

 

  • A person commits the offense of murder when, in the commission of a felony, he or she causes the death of another human being irrespective of malice.

 

This is also referred to as “felony murder.”

 

  • A person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.

 

Punishment if Convicted

 

A person convicted of the offense of murder shall be punished by death, by imprisonment for life without parole, or by imprisonment for life. A person convicted of the offense of murder in the second degree shall be punished by imprisonment for not less than ten nor more than 30 years.

 

Manslaughter

 

In Georgia, manslaughter can be either voluntary or involuntary.

 

Under O.C.G.A. § 16-5-2, a person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person; however, if there should have been an interval between the provocation and the killing sufficient for the voice of reason and humanity to be heard, of which the jury in all cases shall be the judge, the killing shall be attributed to deliberate revenge and be punished as murder.

 

Essentially, the law recognizes that a person can become so inflamed by passion or provoked to a certain degree that it negates the mental state of “malice” found in murder charges. Because there is no malice, a jury is authorized to convict a person on the lesser offense of voluntary manslaughter.

 

Examples of sufficient provocation or irresistible passion have been held to include adultery (Raines v. State, 247 Ga. 504 (1981)) and battered person syndrome (Paslay v. State, 285 Ga. 616 (2009)). Evidence of anger alone is not sufficient to set aside malice. It is also important to note there can not be a “cooling off” period between the provoking act and the killing.

 

A person who commits the offense of voluntary manslaughter, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 20 years.

 

Pursuant to O.C.G.A. § 16-5-3, A person commits the offense of involuntary manslaughter in the commission of an unlawful act when he causes the death of another human being without any intention to do so by the commission of an unlawful act other than a felony.

 

In the situation of an unlawful act, upon conviction thereof, the person shall be convicted of a felony and punished by imprisonment for not less than one year nor more than ten years.

 

A person also commits the offense of involuntary manslaughter in the commission of a lawful act in an unlawful manner when he causes the death of another human being without any intention to do so, by the commission of a lawful act in an unlawful manner likely to cause death or great bodily harm.

 

Here, during the commission of a lawful act in an unlawful manner, upon conviction thereof, the person shall be punished as a misdemeanor.

 

Contact Us

 

Homicides are investigated aggressively by law enforcement. These crimes are extremely serious. If you or someone you know has been charged with a crime involving the death or another, please contact our office today at 404-581-0999 for a free consultation.

Possession of THC Oil under Georgia Law

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Generally, possession of a personal amount of marijuana is considered a misdemeanor, pursuant to O.C.G.A. § 16-13-2(b). However, possession of other forms of THC, such as oil, resin, or wax, which are extracted from the plant, can be charged as a Schedule I felony in accordance with the Georgia Controlled Substances Act.

THE OFFENSE

V.G.C.S.A. offenses, which stands for “Violations of the Georgia Controlled Substances Act,” include criminal charges relating to the possession of THC oil. According to O.C.G.A. § 16-13-25 of the Georgia Controlled Substances Act, THC oil is considered a Schedule I controlled substance. A Schedule I controlled substance is defined as:

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

According to O.C.G.A § 16-13-30, it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance, this includes non-medicinal THC oil, which is categorized as a Schedule I felony in the State of Georgia.

LOW THC OIL

However, an experienced criminal defense attorney could negotiate for a felony charge to be reduced down to a misdemeanor under O.C.G.A. § 16-12-191. This statute governs the possession of “low THC oil.” Pursuant to this statute, it is unlawful for any person to possess, purchase, or have under his control, 20 fluid ounces or less of low THC oil. If convicted under this statute, the accused will be sentenced to misdemeanor punishment.

In order for it to be considered “low THC,” the prosecution must prove that the oil was less than a 5% concentration of THC. Thus, the GBI crime lab must provide to the State, as well as to the defense, an analysis of THC concentration, which does not always happen in every case. If this is not provided, the prosecution will have difficulty proving that the oil is above a 5% concentration of THC, and therefore, an experienced criminal defense attorney could negotiate for a felony possession of THC oil charge to be reduced down to a misdemeanor.

CONTACT US

Due to the complexity of the charge of possession of THC oil, as well as the severity of the punishment, it is of vital importance to hire an experienced criminal defense attorney to defend you against such serious allegations. At the Law Offices of W. Scott Smith, our lawyers are trained to know the possible options of an accused arrested and charged with possession of THC oil, we are experienced and skilled at defending such allegations, and we work tirelessly at advocating for our client’s rights. Therefore, if you or a loved one has been arrested for possession of THC oil, please call our office today at 404-581-0999 for a free consultation.

How Battery-Family Violence becomes a Felony under Georgia Law

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Under O.C.G.A. § 16-5-23.1, the offenses of battery and battery – family violence are punished as misdemeanors. However, the same exact offense, under three sets of circumstances can transform this misdemeanor into a felony.

Battery Against the Same Victim

A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another. A first or second offense against the same victim will result in misdemeanor punishment.

But, upon a third or subsequent conviction for battery against the same victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

Battery – Family Violence

If the offense of battery is committed between household members (past or present spouses, persons who are parents of the same child, parents and children, stepparents and stepchildren, foster parents and foster children, or other persons living or formerly living in the same household), it shall constitute the offense of family violence battery and is punished as a misdemeanor.

However, if the defendant has previously been convicted of a forcible felony committed between household members, he or she shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

Or, if a person is convicted of a second or subsequent offense of family violence battery against the same or another victim, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

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If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

Aggravated Battery Charges in Georgia

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

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

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

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

Penalties

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

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

Georgia Criminal Law – Disorderly Conduct

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Disorderly conduct is an offense that occurs very frequently in today’s climate, especially during this past summer where protests over racial injustice and police brutality in Atlanta filled the streets. Even with the frequency of this charge, a conviction for disorderly conduct can have grave consequences. For some clients, this is their first interaction with police and their concerns include: jail time, a permanent criminal record, and possibility of trial. All these concerns are very real when facing a disorderly conduct arrest and/or conviction and it is strongly recommended to speak to a criminal defense attorney when one is facing such charges.

The Offense

In Georgia, disorderly conduct is a misdemeanor. Georgia Criminal Code § 16-11-39 states that an individual commits disorderly conduct when they act in a violent or tumultuous manner toward another person, which causes that person to fear for their safety. It can also occur where the individual acts violently toward another’s property, placing that property in danger of being damaged or destroyed. It can even occur where an individual uses provoking language or “fighting words” in which could create a violent encounter with another or by threatening a “breach of the peace.”

“Fighting Words”

An individual can be convicted of disorderly conduct solely based on the utterance of “fighting words.” Fighting words are known as abusive words or phrases that are directed at another and by their very utterance inflict injury or provoke a violent reaction. The focus is primarily on the nature of the words and the circumstances in which they are spoken rather than on the response to those words. This type of language is not protected under our constitutional right to freedom of speech under the First Amendment. “Fights words” can be the sole cause for a conviction of disorderly conduct.

“Breach of the Peace”

“Breach of the peace” generally covers conduct that disturbs the public peace and quiet of the community. An individual who uses “fighting words” or abusive language, without being provoked by another, in which by its very nature could create a public disturbance, can be arrested and/or convicted of disorderly conduct.

Punishment

Many municipalities have their own disorderly conduct ordinances, one of which is the City of Atlanta. This means that, in those cities, a person may be charged with either a violation of state law or municipal law. The penalties can be different for each, but in general, a first conviction of disorderly conduct carries a maximum penalty of one year in jail and a $1,000 fine. Disorderly conduct charges are subjective in nature and can be worked out with the prosecution, as well as dismissed at trial.

Contact Us

Being arrested for disorderly conduct can be a stressful event in anyone’s life and it is always recommended to speak to an attorney as soon as possible. At the Law Offices of W. Scott Smith, our lawyers are trained to know all your possible options when facing this type of charge. We are also experienced in all other misdemeanor offenses and strive to protect our clients’ rights throughout this process. If you or a loved one has been arrested or charged with disorderly conduct, please call our office today at 404-581-0999 for a free consultation.

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

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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 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

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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.