Posts

Trafficking Marijuana through the Atlanta Airport

/in , , , , , /by

When a person traveling to Atlanta is charged with trafficking marijuana at the Atlanta airport the first concern is going to be how to get a bond to get the person charged with trafficking marijuana at the Atlanta airport out of jail as soon as possible.  Another question is, how much will my bond be for trafficking marijuana?  At our law firm we have handled a number of bond hearings and received consent bonds in Clayton County on trafficking marijuana at the Atlanta airport.  We believe we have a recipe for success that you can follow in order to get a bond on a trafficking marijuana case.  A bond hearing is where a judge will decide if the person trafficking in marijuana at the Atlanta airport is a good candidate for bond.  The factors a judge will consider on trafficking cases generally include, criminal record or lack of a criminal record, flight risk or whether the person will appear in court when directed, and/or likelihood of committing a new felony offense while out on bond.  Since people who are charged with trafficking in marijuana are generally transient or they generally have out of Georgia ties, the court will be concerned they will not appear in court when the case comes up for additional court dates.  You must be in a position to allay the court’s fears the person charged with trafficking marijuana will in fact appear in court when directed to do so.  A consent bond is where the State’s prosecutor agrees to a bond amount and the defense accepts because the person arrested for trafficking marijuana at the Atlanta airport feels they can afford the bond amount.

First question for consideration is how much did the Marijuana in the person traveling with marijuana in their suitcase at the Atlanta airport weigh.  If it is less that twenty pounds your chances of getting a lower bond in Clayton County are greater.  Second, did the person traveling have more that $1000 cash on them.  If they did, they are likely a mule.  A mule is someone who is generally destitute or poor and they are so desperate for money that they agree to transport a suitcase or luggage without knowing its contents.  If the person is poor and you can show the prosecutor this evidence and they had a large sum of money (which is consistent with the mule’s fee) the prosecutor is more likely to grant a bond.  Third, do the flight records show a first-time travel for that person on the same flight origination?  If so, this is likely the first time the person traveling with the large amounts of marijuana is flying with marijuana.  If you can show no pattern of travel the State is more likely to consent to a low bond.  The State’s prosecutor and Court will want to know the criminal history of client.  Things of major importance will be does the person have any felonies on their record?  Has the person ever failed to appear in court – even for traffic violations?  Does the person have any violations of probation or parole?  Furthermore, it is important to have a local address in which the person charged with trafficking marijuana will live at while the case is pending.

If you are an attorney trying to acquire a consent bond for trafficking marijuana in Clayton County at the Atlanta Jackson-Hartsfield Airport, here is what you need to do.  Go through the criminal history to have a good handle on what the criminal history provides.  If any discrepancies come up on the persons charged GCIC or NCIC be in a position to pull the official court record to confirm the inaccuracies in the official record.  In our experience this happens way too often.  Second, pull a copy of the incident report.  You will need to make a copy of the incident report and provide a copy to the State’s prosecutor in order to get a quick bond offer.  If client has a passport, obtain the passport and be willing to turn the passport in to law enforcement to hold pending the case’s outcome.  If client is poor, have client provide you access to his or her bank account to show how little amount she has in the account.  If client lives in an apartment or humble residence, have someone take photos of the residence to show the State’s prosecutor client’s simple living arrangements.  If client does not have a local address to live at see if client’s family can acquire a local address.  Lastly, do not have client snitch or become a state witness.  In my experience it serves no purpose as it does not assist in getting a bond.

Rape Charges in DeKalb County, Georgia

/in , , , , , , /by

Rape is a serious crime in Dekalb County. O.C.G.A. § 16-6-1 defines rape as follows:

  1. A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

If you are charged with Rape in Dekalb County, you will be brought over before a Magistrate Judge within the first 72 hours of your arrest. This judge will not set a bond on Rape. You will need to have a bond motion filed before a Dekalb County Superior Court judge.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Initial (First) Appearance in Georgia Criminal Cases

/in , , , , /by

An “initial appearance” is an accused’s first face-to-face encounter with a judge after arrest. The purpose of an initial appearance is to inform the accused of the nature of the charges and advise him/her of their basic rights.

The initial appearance may also serve as a probable cause hearing if the person was arrested without a warrant and no arrest warrant is secured prior to the initial appearance. However, getting an arrest warrant within 48 hours after a warrantless arrest satisfies this probable cause requirement.

Police making an arrest without a warrant shall bring the arrested person in front of a judge within 48 hours after the arrest. O.C.G.A. § 17-4-62.

Police making an arrest with a warrant shall bring the arrested person in front of a judge within 72 hours after the arrest. O.C.G.A. § 17-4-26. These time limitations include weekends and holidays.

Failure to meet these time requirements may result in the release of the arrested person through a writ of habeus corpus under O.C.G.A. § 17-4-62. The failure to provide a timely first appearance, however, will not prevent the State from prosecuting the case.

At the initial appearance the judge shall:

  • Inform the accused of the charges
  • Inform the accused of their Miranda rights
  • Determine whether the accused wants a court appointed attorney and how to obtain one
  • Inform the accused of their right to a committal (probable cause) hearing, unless waived by getting bond
  • In the case of a warrantless arrest, make a probable cause determination
  • Inform accused of right to grand jury indictment or accusation
  • Inform accused of when grand jury will next convene
  • Inform accused of right to jury trial
  • Inform accused of right to waive rights and plead guilty
  • Set bail unless offense is only bailable by superior court judge

Importantly, a defendant’s volunteered statements at the initial appearance may be admissible against the accused at trial. The accused person is NOT entitled to an attorney at the initial appearance because the initial appearance is not considered a “critical stage” in the criminal justice process. Gerstein v. Pugh, 420 U.S. 103 (1975).

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.

 

 

Requirements to Enter a Guilty Plea in Georgia

/in /by

This blog article serves to answer one simple question: what are the prerequisites for a voluntary guilty plea?

 

A judge shall not accept a plea of guilty without first determining the plea was entered voluntarily. Uniform Rules of Superior Court 33.7; Williams v. State, 221 Ga. App. 291 (1996).

 

To establish voluntariness, judges should advise defendants of:

 

  • The nature of the charges against him/her
  • The rights he/she are waiving by entering a guilty plea
  • The consequences of a guilty plea

 

Nature of the Charges

 

  • Does the defendant understand the nature of the charges?
  • Is there a factual basis for the defendant’s guilty plea?
  • Is there a plea agreement?
  • Have there been any threats or promises made (other than plea agreement) to induce the plea?

 

Rights Waived by Guilty Plea

 

  • Right to a jury trial
  • Presumption of innocence
  • Right to confront witnesses
  • Right to subpoena witnesses
  • Right to testify and offer evidence
  • Right to assistance of counsel
  • Right against self-incrimination

 

Consequences of the Guilty Plea

 

  • Maximum possible punishment under law defendant could receive
  • Mandatory minimum punishment, if any
  • Time limits to appeal conviction (habeus corpus)
    • 180 days traffic, 1 year misdemeanors, 4 years felonies
  • Impact on immigration status if not U.S. citizen

 

Effect of a Guilty Plea

 

A guilty plea results in a conviction. All that remains is judgment and punishment. Further, a guilty plea waives all defenses, known and unknown. A defendant can later challenge the voluntariness of the plea.

 

Contact Us

 

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

Restitution for Criminal Offenses under Georgia Law

/in /by

What is Restitution?

Simply put, restitution is money paid by an offender to compensate a victim for harm caused by the offender’s unlawful acts. Restitution is a primary concern of the criminal justice system. O.C.G.A. § 17-14-1. Restitution includes all damages recoverable in a civil action except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium. O.C.G.A. § 17-14-2(2).

The Restitution Hearing

Under O.C.G.A. § 17-14-3 and O.C.G.A. § 17-14-7, a sentencing judge may order a defendant to pay restitution to the victim of his crime following a negotiated plea or restitution hearing.

At the restitution hearing the State has the burden of proving the specific amount of the victim’s loss by a preponderance of the evidence. The defendant bears the burden of proving their ability to pay (defendant’s financial resources). O.C.G.A. § 17-14-7(b).

Specifically, the Court looks to 8 factors when analyzing the defendant’s ability to pay restitution:

  • The financial resources and other assets of the offender or person ordered to pay restitution including whether any of the assets are jointly controlled;
  • The earnings and other income of the offender or person ordered to pay restitution;
  • Any financial obligations of the offender or person ordered to pay restitution, including obligations to dependents;
  • The amount of damages;
  • The goal of restitution to the victim and the goal of rehabilitation of the offender;
  • Any restitution previously made;
  • The period of time during which the restitution order will be in effect; and
  • Other factors which the ordering authority deems to be appropriate.

O.C.G.A. § 17-14-10.

If more than one offender has contributed to the loss of a victim, the court may make each offender liable for payment of the full amount of restitution or apportion liability amongst offenders. O.C.G.A. § 17-14-7(c).

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

 

 

Serious Violent Felonies under Georgia Law

/in , , , , /by

Georgia law provides for the most serious violent offenses known as the “Seven Deadly Sins.” These are the most heinous crimes in our society and, as such, have specialized punishment including mandatory minimum punishment and limited eligibility for parole. This article will list the serious violent felonies as proscribed by law and detail the punishment surrounding them.

Seven Deadly Sins

O.C.G.A. § 17-10-6.1(a) lists the “Serious Violent Felonies” in Georgia criminal law:

  • Murder, Felony Murder
  • Armed Robbery
  • Kidnapping
  • Rape
  • Aggravated Child Molestation
  • Aggravated Sodomy
  • Aggravated Sexual Battery

If convicted of any of these offenses, the sentencing court is required to impose no less than the statutory minimum sentences of imprisonment. O.C.G.A. § 17-10-6.1(b).

Mandatory Minimum Sentences of Imprisonment

10 years imprisonment

  • Armed Robbery
  • Kidnapping (victim 14 years or older)

25 years (followed by probation for life)

  • Kidnapping (victim under 14)
  • Rape
  • Aggravated Child Molestation
  • Aggravated Sodomy
  • Aggravated Sexual Battery

Life

  • Murder, Felony Murder

 

Eligible for Parole?

  • Defendants sentenced to 10 years confinement must serve all 10 years and is not eligible for parole
  • Defendants sentenced to 25 years confinement must serve all 25 years without possibility of parole
  • Defendants sentenced to Life is parole eligible after 30 years
  • Defendants sentenced to death whose sentences is commuted to life is parole eligible after 30 years
  • Defendants sentenced to life without parole will never receive parole

O.C.G.A. § 17-10-6.1(c)(1) – (4).

First Offender Treatment is not available to any of the Serious Violent Felonies.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

 

 

 

Georgia Criminal Law – Preliminary Hearings

/in , , , /by

Defendants held in custody without bond are entitled to a preliminary hearing under Georgia law. Preliminary hearings are a vital pre-trial proceeding where the defendant has an opportunity to be released from custody if the State cannot prove the existence of probable cause for the charges against the defendant. This adversarial proceeding affords the defendant the chance to cross examine the State’s witnesses and present evidence negating probable cause.

If the presiding judge determines probable cause exists for one or more charges, the case is then “bound over” to the trial court. If not, the charges have been dismissed[i]. This article will outline the laws governing preliminary hearings, the standard of proof, rules of evidence, role of the judge, and guidelines for how such hearings should be conducted.

What is a Preliminary Hearing?

Also called committal hearings, commitment hearings, or probable cause hearings, preliminary hearings are a post-arrest, pre-indictment, pre-trial hearing to determine whether sufficient evidence exists to justify detaining a defendant on the charges against him/her.

The State bears the burden of proving the existence of probable cause. The defendant has an opportunity to challenge the State’s case and argue for their release due to a lack of sufficient evidence justifying a probable cause determination. The defendant gets a sneak peek at the evidence in the case and the prosecutor has the chance to assess the strength or weakness of a given case.

Right to a Hearing

Although there is no Federal or Georgia constitutional right to such a hearing, Georgia statute O.C.G.A. § 17-7-20 provides for this right. The right to a preliminary hearing is waived, however, if the defendant posts bond on the case and is released from custody.

Preliminary hearings are conducted after a “reasonable” time is afforded to the State and defense to prepare for the hearing. If a defendant is deprived of their right to a preliminary hearing a reviewing court may grant habeus corpus relief.

Right to an Attorney

The preliminary hearing is a “critical stage” of the criminal process under the 6th Amendment and therefore defendants are entitled to the assistance of counsel. A defendant cannot be forced to proceed without an attorney if there is a reasonable probability of obtaining counsel without great delay. A defendant may testify at the preliminary hearing but should be cautious because the statement could be used against him/her at trial.

The Judge’s Role

At the preliminary hearing, the judicial officer shall:

  • Explain the purpose of the hearing
  • Inform the defendant of their rights
  • Ask the defendant if they intend to enter a plea or otherwise waive their right to the hearing
  • Make a probable cause determination for each charge
  • Maintain a record of the proceeding
  • Make rulings on objections by either party
  • Provide a record of the outcome to the appropriate court

The rules of evidence apply at a preliminary hearing with the exception of hearsay evidence. Further, the right to confront witnesses under the 6th amendment does not apply as this is a trial right.

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

 

 

 

 

 

[i] Although the State may later try to indict the earlier dismissed charge via grand jury proceeding.

Family Violence Battery in Cobb County, Georgia

/in , , , , , /by

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.

 

 

 

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

/in , , , /by

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.

Understanding Computer Theft Crime in Georgia

/in /by

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 (Act), O.C.G.A. §16-9-90 et. seq. The Act establishes four criminal offenses, all major felonies, for violations of the Act: Computer Theft, Computer Trespass, Computer Invasion of Privacy, and Computer Forgery.

 

Computer Theft is defined as when any person who uses a computer or network with knowledge that such use is without authority and with the intention of either taking property of another; obtaining property by any deceitful means or artful practice; or converting property to such person’s use in violation of an agreement to make a specified application or disposition of such property.

 

Courts have held that there is sufficient evidence of computer theft when the defendant used a computer, owned by her employer, with knowledge that such use was without authority, and with intention of removing programs or data from that computer and appropriating them for her own use.

 

However, courts have held there was no criminal theft where an employee got on his employer-owned computer, printed out e-mails, and used the e-mails for a competing business while still employed. The Court held that the use of the computer was not without authority and so he cannot be guilty of the computer theft crime. See Sitton v. Print Direction, Inc., 312 Ga. App. 365 (2011).

 

The State of Georgia vigorously prosecutes these types of cases. If someone is found guilty of computer theft, the maximum penalty is a $50,000 fine or 15 years in prison, or both. In most situations, if someone is charged with computer theft, there may be enough facts to also charge them with the other computer crimes like computer trespass and computer forgery, which can increase the sentencing if convicted.

 

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 Theft cases, and can protect you through the criminal justice system.