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Recidivist Statute and Three Strikes Rule in Georgia Criminal Law

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

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

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

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

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

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If you or a loved one is facing criminal prosecution, as a recidivist or not, please contact our office today at 404-581-0999 for a free consultation. Our firm has specialized knowledge and experience in handling criminal cases in multiple jurisdictions across Georgia.

Georgia Criminal Law – 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. 

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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. 

Battery – Family Violence in Georgia

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If you or a loved one is arrested for Family Violence Battery in Georgia, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence. 

Georgia Criminal Code § 16-5-23.1 defines domestic 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.”

Punishment

First Conviction: Upon a first conviction of family violence battery, the defendant shall be guilty of and punished for a misdemeanor, a jail sentence can be imposed of up to twelve months and courts will require defendant’s to take a 24 week Family Violence Intervention Program throughout probation. 

Second Conviction: A second or subsequent conviction 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.

There are also immigration concerns if you are not a U.S. Citizen. 

It should be noted, domestic violence is a “deportable” offense, if you are not a U.S. citizen and are convicted it can lead to serious immigration consequence.

Do not think that just because you are innocent that the charges will be dismissed. Family Violence Battery charges are aggressively prosecuted in Georgia. 

Here is what you should do if arrested for Family Violence Battery in Georgia. 

  1. Hire an attorney – Make sure that attorney actually handles and tries Family Violence Battery cases.  Make sure the attorney you talk to does regularly handles Family Violence Battery cases in Georgia. 
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be
    dropped. If you are arrested for Family Violence Battery, you have to start preparing
    for your jury trial. Do not make any statements to anyone except your lawyer. 
  3. Gather and preserve any physical evidence in your possession that might relate to the person making the accusation. This includes clothing, photos, video or any other tangible object.
  4. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred. 
  5. Witnesses – Immediately make a list of any person who you think might have information about this Family Violence Battery accusation.Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them. 

Here is what you should never do if arrested for Family Violence Battery in Georgia

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim
    through a 3rd party or through social media.
  3. Never talk to law enforcement without an
    attorney present.

If you are arrested for Family Violence Battery in Fulton, Gwinnett, Cobb, Dekalb, Clayton or any other county in the metro Atlanta area, please call our office 24/7 at 404-581-0999. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for this consultation. You will only retain us if you feel we are the best law firm to represent you. It is your life so you need to hire the lawyer that you feel gives you the best chance to win your case. 

What do you do if you are arrested for child molestation in Fulton County?

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If you or a loved one is arrested for child molestation in Fulton County, it is important that you act immediately to protect yourself. Do not wait until your court date to get an attorney and to preserve evidence.

The Fulton County District Attorney’s office has a dedicated division called the Crimes Against Women and Children Unit. They will vigorously prosecute you if you are charged with child molestation. 

Do not think that just because you are innocent that the charges will be dismissed. Child molestation charges are aggressively prosecuted in Fulton County and the police believe children who make the accusations.

Make sure your attorney has had jury trials in child molestation cases and has won these cases. Do not let an attorney handle your case who does not specifically handle child molestation cases.

The law may say you are presumed innocent but in child molestation cases, you have to prove your innocence.

Here is what you should do if arrested for child molestation in Fulton County.

  1. Hire an attorney – Make sure that attorney actually handles and tries child molestation cases. Most criminal defense attorneys do not handle child molestation cases. Make sure the attorney you talk to does regularly handles child molestation cases in Georgia.
  2. Avoid making any statements – Do not walk into the police department and profess your innocence. The police will not believe you. Do not think you can show up at your first court date and tell the prosecutor and judge that you are innocent and expect the charges to be dropped. If you are arrested for child molestation, you have to start preparing for your jury trial. Do not make any statements to anyone except your lawyer.
  3. Start gathering important evidence
    1. Gather and preserve any physical evidence in your possession that might relate to the child making the accusation. This includes clothing, photos, video or any other tangible object.
    1. Gather and preserve any documents that might relate to this accusation including emails, texts, social media, phone records, GPS records, computer records or any other document that might show where you were when this incident allegedly occurred.
    1. Witnesses – Immediately make a list of any person who you think might have information about this child molestation accusation. Do not discuss the case with this person but pass this list of potential witnesses to your attorney and let your attorney contact them.

Here is what you should never do if arrested for child molestation in Fulton County.

  1. Never talk to the alleged victim or the family.
  2. Never have any contact with the alleged victim through a 3rd party or through social media.
  3. Never talk to law enforcement without an attorney present.
  4. Never talk to a child welfare agency or any other governmental agency without an attorney present.

If you are arrested for child molestation or any sex offense in Fulton County, please call our office 24/7 at 404-581-0999 or send us an email at mike@peachstatelawyer.com. We will sit down with you and fully discuss your case and what to expect in court. There is no charge for the initial consultation. You will only retain us if you feel we are the best law firm to represent you. It is your case and your life so you need to hire the lawyer that you feel gives you the best chance to win.

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.