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Theft by Receiving Stolen Property in Fulton County

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A person commits the offense of theft by receiving stolen property when s/he receives, disposes of, or retains stolen property which s/he knows or should have known was stolen unless the property is received, disposed of, or retained with the intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.  OCGA § 16-8-7. Guns and cars are the most common property associated with theft by receiving stolen property charges.

In order to sustain a conviction for theft by receiving the state is required to prove beyond a reasonable doubt that the accused KNEW the property was stolen. That knowledge can be inferred (i.e. should have known) by circumstances that would be suspicious to an ordinary prudent person. For example, if you buy a brand-new Mercedes G Wagon for $5,000 and it turns out to be stolen, a jury is authorized to believe you knew it was stolen. It would be unreasonable to the average person that a brand-new car that normally costs upwards of $200,000 would be sold for $5,000. Now if we are talking about a Nissan Ultima, that $5,000 price cannot show knowledge that it was stolen because the price is reasonable. Certain damage to a vehicle, like a broken steering column or the locks being punched out, can also imply the necessary knowledge. It is much more difficult for the state to prove knowledge of a stolen gun. The Georgia appellate courts have found that purchasing a gun on the street at a reduced price or the gun being labeled “for law enforcement use” is not enough but it can be shown if the serial number has been filed off.

If you or a loved one has been charged with theft by receiving stolen property, give us a call for a free consultation.

Teenager Charged as an Adult in Fulton County

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There are two reasons why a minor might be charged as an adult. The first is they’re 17. Even though you’re not considered an adult until your 18th birthday for most things – i.e. voting, buying tobacco or a weapon – in the Georgia criminal justice system you are an adult at your 17th birthday.

The other reason is the crime the child is charged with. Under OCGA § 15-11-560 a child that is at least 13 will be charged as an adult in Superior Court if they are alleged to have committed certain crimes. These crimes include murder, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, armed robbery with a firearm, and aggravated assault or battery against a police officer. However, there are circumstances that allow these types of cases to be sent back to Juvenile Court.

Every case is different and if your child has been charged as an adult it is imperative to seek out an experienced attorney. Give us a call for a free case consultation.

Why is my child charged as an adult?

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There are two reasons why a minor might be charged as an adult. The first is they’re 17. Even though you’re not considered an adult until your 18th birthday for most things – i.e. voting, buying tobacco or a weapon – in the Georgia criminal justice system you are an adult at your 17th birthday.

The other reason is the crime the child is charged with. Under OCGA § 15-11-560 a child that is at least 13 will be charged as an adult in Superior Court if they are alleged to have committed certain crimes. These crimes include murder, rape, aggravated sodomy, aggravated child molestation, aggravated sexual battery, armed robbery with a firearm, and aggravated assault or battery against a police officer. However, there are circumstances that allow these types of cases to be sent back to Juvenile Court.

Every case is different and if your child has been charged as an adult it is imperative to seek out an experienced attorney. Give us a call for a free case consultation.

Possession of Tools – Cobb County Criminal Defense Attorney

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Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. If you are arrested in Cobb County for Possession of Tools, the First Appearance hearing will be the initial court appearance in front of a Judge. This occurs within 48 hours of an arrest without a warrant, or 72 hours if there was an arrest warrant. The Cobb County Judge will notify the person of the charges, as well as set bond at this stage.

If arrested in Marietta and Cobb County for Possession of Tools, the case will be prosecuted by the Cobb County District Attorney’s Office. The next court date will be the Arraignment and takes place at the Cobb County Superior Court.

Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

Examples of tools that can result in criminal charges are crowbars and glass break devices. For example, you could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand. The tools do not have to do with burglary to fall under this crime. For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

 

What is the sentence for Possession of Tools in Cobb County?

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. Possession of tools is a felony offense, which is sentenced more harshly than misdemeanors. This is found at O.C.G.A. § 16-7-20.

 

What are Possible Defenses to Possession of Tools in Cobb County?

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove possession of a tool but it must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case because it is not commonly used in armed robberies.

The rule of lenity may also apply in felony Possession of Tools cases. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

If you or a loved one has been arrested for POSSESSION OF TOOLS in Marietta or Cobb County, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

Possession of Tools – DeKalb County Criminal Defense Attorney

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Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. If you are arrested in DeKalbCounty for Possession of Tools, the First Appearance hearing will be the initial court appearance in front of a Judge. This occurs within 48 hours of an arrest without a warrant, or 72 hours if there was an arrest warrant. The DeKalb County Magistrate Judge will notify the person of the charges, as well as set bond at this stage.

 

If arrested in DeKalb County for Possession of Tools, the case will be prosecuted by the DeKalb County District Attorney’s Office. The next court date will be the Arraignment and takes place at the DeKalb County Superior Court.

 

Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

 

Examples of tools that can result in criminal charges are crowbars and glass break devices. For example, you could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand. The tools do not have to do with burglary to fall under this crime. For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

 

What is the sentence for Possession of Tools in DeKalb County?

 

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. Possession of tools is a felony offense, which is sentenced more harshly than misdemeanors. This is found at O.C.G.A. § 16-7-20.

 

What are Possible Defenses to Possession of Tools in DeKalb County?

 

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

 

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

 

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove possession of a tool but it must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case because it is not commonly used in armed robberies.

 

The rule of lenity may also apply in felony Possession of Tools cases. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

 

If you or a loved one has been arrested for POSSESSION OF TOOLS in the DeKalb County or the Atlanta area, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

 

Georgia Criminal Law – How to Withdraw a Guilty Plea

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The vast majority of criminal cases are resolved through guilty pleas. Some people take guilty pleas because they are guilty as a matter of fact and law, while others take pleas even though they are innocent. But why would an innocent person plead guilty to a criminal charge? Trials can be a risky proposition. A plea deal that involves no jail time, reduced charges, or other mitigated punishment may be an attractive offer when faced with the possibility of losing at trial and being hit with a “trial tax.” A trial tax is the idea that if you go to trial and lose you will be punished more harshly by the judge than if you had just taken a plea. Due to the large percentage of cases that result in guilty pleas, there are of course a percentage of those cases where the person, for whatever reason, decides they want to withdraw their guilty plea, either before or after sentencing. This article serves to explore whether a guilty plea can be withdrawn, and if so, under what circumstances. 

Before Sentencing

The person accused has an unlimited right to withdraw a guilty plea until a sentence is pronounced. O.C.G.A. § 17-7-93 (b). This means a person may withdraw a plea of guilty at any time before a judgment is announced (orally by the court) and then plead not guilty. But, once a judgment is announced, a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed on appeal unless there is a manifest abuse of discretion. 

After Sentencing

Because of the time and care taken by the court to ensure each plea of guilty is entered freely, knowingly, and voluntarily, it is very difficult to withdraw a guilty plea after a sentence is pronounced. There are, however, a few limited circumstances in which a guilty plea may be withdrawn after the sentence is announced. 

The first is within the context of a negotiated plea. A negotiated plea is one where the prosecutor and defense have come to an agreement on the charge plead to and the terms of punishment to that charge. If a person enters a negotiated plea and the judge, in their discretion, sentences the person to anything different than the terms agreed upon (for better or for worse), the person has the right to withdraw their plea. The opposite is true in a non-negotiated plea, where the person pleads guilty to the offense but is asking the judge for punishment different from what the State is asking for. In a non-negotiated plea the defendant is stuck with whatever sentence the judge imposes. 

After a sentence is imposed, a court may allow the withdrawal of a guilty plea only to correct a “manifest injustice.” Examples of manifest injustice include, but are not limited to, the person being misled about the terms of the sentence, the person being threatened or forced by another to enter a plea, the person not being competent to enter a plea, newly discovered evidence if: (1) the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness, or any other circumstance indicated the plea was not entered freely, knowingly, or voluntarily.

A motion to withdraw a guilty plea must be filed within the same term of court in which judgment of conviction was entered. After the term of court expires (about every three months), the trial court’s jurisdiction ends and the defendant’s only remedy is to file a petition for writ of habeas corpus. The terms of court can be found within O.C.G.A. § 15-6-3. 

If a motion to withdraw a guilty plea is timely filed the court may, but is not required to (unless there are issues of fact to be decided), hold a hearing to determine whether the guilty plea should be withdrawn. When a defendant challenges the validity of his guilty plea, the State bears the burden of showing the plea was entered voluntarily and intelligently and that defendant had an understanding of the nature of the charges and the consequences of the plea. 

Contact Us

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

Georgia Criminal Law – Possession of Tools

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Georgia law criminalizes the possession of tools for the commission of a crime. In fact, it is a felony offense. Not all tools in your possession will result in criminal charges. The law states it is unlawful to possession any tool, explosive, or device commonly used in burglary, theft, or another crime, with the intent to make use thereof in the commission of a crime.

Examples of tools that can result in criminal charges are crowbars, hammers, and glass break devices as these are all commonly used in burglaries and thefts. You could be arrested if found looking inside someone’s car windows late at night with a glass break tool in your hand, even if there is no theft. However, not only tools associated with burglary are criminalized.  For example, we routinely see pipes and scales charged as Possession of Tools, as these items are used to commit crimes of Possession of Drugs. In these instances, the rule of Lenity applies, which is discussed below under the Defenses section

What is the sentence for Possession of Tools in Georgia?

The sentence for Possession of Tools is a 1 to 5 year imprisonment sentence. (See O.C.G.A. § 16-7-20). Possession of tools is a felony offense, which means it is sentenced more harshly than misdemeanors. Felonies can take away your civil rights moving forward and can make finding employment very difficult. For example, if you are convicted of Possession of Tools, you immediately lose your right to vote and your ability to carry a firearm.

What are Possible Defenses to Possession of Tools in Georgia?

First, the mere possession of a common instrument is not a crime. A screw driver can be used to commit crimes, but it can also be used for numerous other lawful purposes. The same goes with wire cutters, flashlights, and gloves. These items are commonly used for all sorts of lawful and legitimate activities. The State must prove, beyond a reasonable doubt, that there was intent to use the tool to commit a crime. It is an incredibly high standard, especially since tools are used for so many other purposes.

Additionally, any time contraband is found, a thorough investigation must be conducted by a criminal defense attorney very quickly after arrest, into whether or not a valid, lawful, and constitutional search had occurred. We all have a right to be free from unreasonable searches and seizures. An officer cannot search your car without probable cause of a crime occurring, and then later charge you with a felony after finding a tool common in burglaries. In this instance, the tools found could be suppressed, and the case subsequently dismissed.

Other defenses fall on whether or not the tool is one that is commonly used for the commission of the crime. The State must not only prove that the accused actually possessed a tool, but the tool must be one that is commonly used to commit crimes. For example, Georgia law has held that body armor is not a tool commonly used in armed robbery, and thus there is insufficient evidence to show proof Possession of Tools in that situation. Georgia law has also held a two-by-four was not a tool for purposes of this statute in an Armed Robbery case for the same reason: it is not a device commonly used to commit that crime.

The rule of lenity may also apply in felony Possession of Tools cases. This means that even if you are charged with a felony, Georgia law may require you be given a misdemeanor sentence. For example, if the conduct alleged falls within both felony Possession of Tools and misdemeanor Possession of Drug Related Object, then the Lenity rule requires that person be subject to misdemeanor penalties.

If you or a loved one has been arrested for POSSESSION OF TOOLS in the State of Georgia, W. Scott Smith is here to offer a FREE CONSULTATION at 404-581-0999.

Drug Trafficking in Georgia

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by Mary Agramonte

         The war on drugs is alive and well in the Georgia criminal justice system. You may be surprised the amounts of each drug that Georgia law considers to be Drug Trafficking. While selling drugs of any kind is against the law and considered a felony, there is a threshold for each drug that will bump the case into drug trafficking. Drug trafficking has significantly harsher penalties than a simple Possession charge or even Possession with Intent to Distribute. Drug trafficking also can make obtaining a bond more difficult at the onset of the case because only a Superior Court Judge can grant bond in these situations. This can be an issue since the first Judge people typically see after arrest is a Magistrate Judge at First Appearance, and Magistrate Judges do not have authority to grant a bond in Drug Trafficking cases in Georgia. In some courts, Magistrate Judges “sit in designation” and can in fact handle bond hearings for trafficking charges. If this is not the case, attorneys must request a hearing by a Superior Court Judge in order to request a bond.

What is considered drug trafficking?

Simply possessing the following amounts will be considered Drug Trafficking under Georgia law, even if there is no evidence of selling or delivering it.

Methamphetamine: 28 grams or more

Heroin: 4 grams or more

Cocaine: 28 grams or more

Marijuana: 10 pounds

How much time am I facing if I am charged with Drug Trafficking?

The short answer is it depends. Each drug and amount has a different mandatory minimum sentence. For example, if you have anywhere between 28 grams and 200 grams of cocaine, Georgia law requires a sentence with a minimum 10 years and $200,000 fine. Those numbers go up with every amount over 200 grams.

If you are charged with trafficking marijuana in Georgia, and the amount seized was somewhere between 10 pounds and 2,000 pounds, it is a mandatory minimum sentence of five years and a $100,000 fine.  Similarly, these numbers will also go up for every amount over 2,000 pounds.

See O.C.G.A. § 16-13-31 for all mandatory minimum sentencing according to type of drug and amount seized.

There are defenses to Drug Trafficking in Georgia

Drug trafficking cases typically implicate the Fourth Amendment more than any other type of case. Each of us has a Constitutional right to be free from unreasonable search and seizures. Each case is different and must be carefully analyzed in terms of whether the police officers acted lawfully in the search and seizure of the drugs. For example, if the officers had no right to enter your trunk or your safe in the closet, the drugs and case can be thrown out. Likewise, if the search warrant is not valid, or they did not get a warrant, this is another defense to getting the drugs suppressed or excluded.

Drug trafficking in Georgia carries significant sentences, and the legal motions must be filed very early on in the case in order to preserve the issue and allow us to argue the suppression of the drugs. If you or a loved one has been arrested and charged with Drug Trafficking in Georgia, reach out today for a FREE CONSULTATION with the experienced lawyers of W. Scott Smith by calling 404-581-0999.

Theft by Receiving

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Everyone knows you can be arrested, and subsequently prosecuted, for taking something that doesn’t belong to you. But what about receivingsomething that doesn’t belong to you?

What Does This Mean?

Yep, you can be arrested for that, too. Welcome to the world of theft by receiving. Under Georgia law, you can be arrested for “receiving, disposing of, or retaining stolen property”. Sounds straight forward, right? But here’s the catch: the State has to prove that you (the accused) knewor should have known the property was stolen and that you did not intend to give the property back to its rightful owner.

Confusing? Let me explain using two hypothetical scenarios.

iPhone Gift

Your significant other gives you a present for your 3 month anniversary. Inside the wrapped package is the iPhone you’ve dropped not-so-subtle hints about wanting for your anniversary. Although grateful for the gesture, you’re a bit confused about why the iPhone isn’t in Apple factory packaging. Your significant other assures you they took it out of the box so it would fit in the gift box they wrapped for you.

A few weeks later your significant other is taken into custody on multiple theft by taking warrants. Turns out they’ve been involved in an iPhone theft ring the entire time you’ve been dating. The State then executes a theft by receiving warrant for your arrest because you have one of the stolen iPhones.

At trial,the prosecutor seeks to present evidence that you knew or should have known the iPhone was stolen. Pursuant to case law, they point to “circumstance[(s) that]would excite suspicion in the mind of an ordinary person.”[1]They’ll point out to the jury that the iPhone was not in factory packaging when you received it and, after all, how could you not have known your significant other was involved in a theft ring?

What’s My Defense?

As your attorney my primary defense on your behalf would be that you simply did not know the iPhone was stolen.Moreover, the circumstances do not indicate that you should have known the iPhone was stolen. You assumed they purchased the phone with their own money because your significant other is gainfully employed. They also explained away the iPhone not being in factory packaging as a consequence of fitting in the gift box. Most importantly, you have only been dating for three months, so you ultimately did not know them well enough to discover their criminal activity.

Used Car Purchase

After being found not guilty of theft by receiving the iPhone you decide to treat yourself by purchasing a car. You’re on a budget, so you’re looking for a well-maintained used car. After browsing listings on Autotrader, you decide to check one out in person. The car is perfect: low mileage, clean, even has that new car smell. The only weird thing is that the car is missing a VIN. But you found the car on Autotrader and it’s at a dealership, so you conclude it must be legitimate. Besides, you reallywant this car.

Shoving your suspicions aside, you decide to buy the car. Soon after rolling it off the lot you spy a police car in your rear-view mirror. Its blue lights activate within seconds. You pull off to the shoulder, totally confused as to why you’re being stopped.The police officer approaches your rolled-down window and asks if you’re aware the vehicle you’re driving has been reported stolen. You tell him you had no idea, but he takes you in to custody anyway on a theft by receiving warrant.

Telling the jury you didn’t know the car was stolen is not a convincing defense this time around. The jury finds you guilty on the basis you should have known the car was stolen because the car didn’t have a VIN when you purchased it. Here, knowledge of stolen property is inferred by circumstances that “excite suspicion in the mind of an ordinary person”.[2]

Don’t Take It!

Moral of the story: do not buy or keep anything you think could have been stolen because,even if you did not steal it yourself, you could be arrested for merely possessing stolen property.

If you or someone you know has been charged with theft by receiving contact our office today for a free consultation. We can help you fight your charges.

by Sarah Armstrong 

[1] Thomas v. State, 270 Ga.App. 181, 606 S.E.2d 275 (2004).

[2] Id.

VIDEO – Everything You Need to Know about Your Georgia Criminal History Record

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Do you have a Georgia criminal history? Do you know what it looks like? What will your prospective employer or landlord see if they run it? Georgia criminal history records are the topic of today’s Peach State Lawyer video blog.

Hello, I’m Scott Smith and today we’re talking about your Georgia criminal history record, and why it is important for you to know what the information your Georgia criminal history record contains.

Your criminal history is a specific document tied to your name, date of birth, and social security number. It contains arrest and final disposition information, including whether you’ve ever been incarcerated in a Georgia jail or prison.

Arrest data includes the arresting agency, date of arrest, and charges. Disposition information relates to the final resolution of the charges through the court process, whether it be through a dismissal, reduced charges, guilty pleas, or result after trial.

Your criminal history is maintained by the Georgia Bureau of Investigation through their Crime Information Center.

Your criminal history is reported in cycles, with each cycle representing a separate incident. A cycle is created when you are fingerprinted, typically following an arrest and being booked into jail. Some minor offenses such as city or county ordinances or minor misdemeanor offenses may not result in you being arrested and fingerprinted, and will not be shown on your criminal history.

Georgia Law allows anyone access to any felony conviction on your criminal history that has not been removed after successful completion of any conditional discharge or first offender program. For anyone, including a prospective employer or landlord to have access to your complete criminal history, they must have your consent through a signed authorization form.

If you have a charge that has been record restricted or expunged, that cycle should not appear on your Georgia Criminal History Record when requested by anyone besides a government agency.

Georgia Criminal History Records can be requested at Sheriff’s Offices and Police Stations throughout the state for Twenty dollars. To request a full copy of your Georgia Criminal History, you will need a driver’s license or photo ID, your social security number, and date of birth.

If you look at your criminal history record and see something you believe should have been restricted or expunged, call our office at 404-581-0999 to discuss potential restriction or expungement options. Our team of experienced Georgia criminal defense attorneys can assist you in determining whether the charge can be restricted or expunged during a free consultation. Thank you.