Understanding Restitution in Georgia Criminal Cases

Restitution is money a criminal defendant may have to pay as part of a guilty plea or conviction. The amount is based on how much the victim lost as the result of a crimes. For example, if a defendant stole a tv or caused damage to property, he may be ordered to pay for the value of the tv or the cost of the damage as restitution. Restitution can then be made a special condition of probation.

How is Restitution Calculated?

Georgia case law makes clear that the amount of restitution ordered can be equal to or less than the victim’s damages, but it cannot be more. Generally speaking, to determine restitution, the prosecutor speaks with the victim and gets a total of the amount of damages incurred from the conduct. However, if the Defendant does not agree to the amount in question, Georgia Code 17-14-7 permits the Defendant to request a restitution hearing.

At the restitution hearing, the burden is on the state to prove by the preponderance of the evidence the amount in question. The Defendant is required to show his available financial resources. The judge is then required to issue a decision with written findings of fact. It is also important to note that the evidence produced at trial cannot be used in lieu of a restitution hearing.

In making her determination, the Judge is required to consider the following factors:

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

If you or someone you know is planning to enter a guilty plea but does not agree to the restitution amount, hire a Georgia criminal defense attorney to help negotiate the restitution or conduct a restitution hearing.

What is the Child Abuse Registry?

In the last couple of years, many individuals charged with crimes in Georgia have gotten a notice in the mail stating that they have been put on the “Child Abuse Registry.” This notice usually comes after an arrest or investigation, but often comes before a person has been convicted or even charged with a crime.

The notice states that the person has 10 days to return a notice appealing placement on the list or else they will be placed on the list permanently. If the person appeals within the allotted time frame, a hearing is set to determine if the person should be removed from the registry. The Child Abuse Registry (or “CAR”) was established by statute in 2016, and extends to certain crimes allegedly committed on or after July 1, 2016. If you have been served with such a notice, contact an attorney immediately.

What Crimes Put a Person on CAR?

While many obvious crimes like molestation and child sexual abuse will place somebody on the registry, the registry extends to physical abuse and charges like cruelty to children in the third degree. Cruelty to children in the third degree occurs when there has been a family violence battery committed, and a child younger than the age of 18 either heard or saw the incident. The primary aggressor in the family violence battery would also be guilty of cruelty to children in the third degree.

A full list of the types of crimes and conduct that can put someone on CAR can found in Section 49-5-183 of the Georgia Code.

What If I Have Been Wrongly Placed on the Registry?

If you have been accused of a crime you didn’t commit, it is crucial that you return the notice of appeal requesting that your name be removed from the registry within the appropriate timeframe. You should consult with an attorney to ensure you have filed the paperwork correctly.

Once you file the appeal, you will receive a notice of a hearing in the mail with a court date before a Georgia administrative law judge. At that hearing, the Division of Family and Children Services is tasked with showing that you committed the acts in question by a preponderance of the evidence. Preponderance of the evidence means it is more likely than not (more than 50%) that you committed the crime or crimes in question. If DFCS does not meet its burden, the administrative judge will issue a written decision ordering your name to be removed from the registry.

The hearing itself functions much like a criminal trial with opening statements, rules of evidence, calling of witnesses, and closing argument. However, there is no jury called, and the administrative law judge decides both questions of law and fact.

Given the serious nature and consequences of being put on the Child Abuse Registry, it is important that you retain an attorney to represent you at the hearing. An attorney can present witnesses and evidence, cross examine witnesses, argue the law, and make your case before the judge. If you are in need of an attorney, give us a call for a free consultation today.

Entrapment: Defenses to Crimes in Georgia (Pt. 2)

Entrapment is an affirmative statutory defense to a crime in Georgia, which means that it is built right into the state code. Entrapment occurs when an officer or agent of the state persuades a person to commit a crime he or she would not have otherwise committed. Entrapment has three elements: First, the idea of the crime must originate with the officer. Second, the crime must be induced by “undue” persuasion. Third, the defendant must not be predisposed to commit the crime.

The statute is rather lengthy, but reads in relevant part that “A person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” O.C.G.A. 16-3-25.

The Challenge of an Entrapment Defense

Entrapment defenses are difficult to prevail on because the defendant must show that he was not predisposed to commit the crime. And the fact that someone committed a crime, may imply that they were predisposed to do it. For example, an entrapment defense would fail if a drug dealer was persuaded to sell drugs to an officer on an occasion when he did not intend to sell any drugs. His being a drug dealer normally would make him predisposed to commit the crime, irrespective of the crime being the officer’s idea.

In the alternative, a good case of entrapment may occur when an undercover officer talks a person into selling him drugs who has never sold drugs before. For example, the undercover officer tells an individual that he is going through withdrawals and may die if the individual does not get him the drugs. In this example, the three elements would likely be met: the idea of the crime didn’t originate with the defendant, the officer arguably used “undue” persuasion, and the defendant was not predisposed to commit such a crime.

Burden of Proof

The person seeking an entrapment defense must first make out a basic (or prima facie) case for entrapment. After prima facie case is made, the state must prove that the defendant was not entrapped beyond a reasonable doubt. The defendant has the initial burden, but then the burden shifts to the state.

Interestingly, a defendant may both assert the defense of entrapment and claim that he did not commit the act resulting in the crime. For example, the Defendant argues that he never sold drugs to a police officer, but that if the jury finds that he did, he only did so by means of entrapment.

If you think you may have an entrapment defense to a crime, contact our office today for a free consult and case analysis!

Equal Access: Defenses to Crimes in Georgia (Pt. 1)

In this series of blogposts we will be discussing common defenses to crimes in Georgia. If you have been charged with a crime (or even if you are under investigation for a potential crime), it is crucial that you know what your defenses are. Some defenses are quite obvious. For example, you did not commit the crime or someone misidentified you. Or you did the act, but it was an accident (you lacked the necessary criminal intent). While many defenses are a matter of common sense, others are more technical.

Constructive vs. Actual Possession

The legal doctrine of equal access is more technical, but is an extremely important defense in cases that allege possession of illegal contraband. To prove possession of illegal drugs, for example, the state must prove that you knowingly and intentionally possessed drugs. Georgia law indicates that there are two forms of possession, actual and constructive possession.

Actual possession comes about when the illegal item is on your person or in your immediate control. In your pocket, purse, or wallet, etc. Constructive possession occurs when the thing may not be with the person currently, but is still within the person’s control. For example, a person has an illegal firearm in a safe inside their house. Actual and Constructive possession are both enough to prove a crime in Georgia.

Equal Access Defense

The equal access defense comes in when the state alleges that you were in possession of some type of contraband. Perhaps drugs were found in your vehicle, your home, or inside a purse or wallet. If you can produce evidence at trial that someone other than you had the opportunity or “equal access” to the location where the drugs were found, and could have placed them there, then the jury must acquit you of the charge.

A typical example of this would be if you let a friend borrow your car earlier in the day before you were driving it, and drugs were then found in the center consul of the vehicle. You would want to present evidence at trial of the friend having driven the car earlier that day. An even clearer example is when a person borrows the car of another person. This would clearly establish that another person (the owner) would have had equal access to the vehicle.

Bottom Line

While getting an equal access jury instruction may save you at a jury trial, prosecutors often won’t dismiss a charge just because there is an equal access argument. It is crucial that you be careful who you ride with and whose possessions you borrow. If you share a car or house with someone who has a drug problem, you may easily open yourself up to liability.

If you have been charged with possession of drugs or contraband, call us today for a free consultation!

How to Get a Pardon for a Felony Conviction in Georgia

Once you have been convicted of a felony in Georgia, you will likely be stuck with it on your record for life. This is the case whether you were convicted by a jury or pleaded guilty in front of a judge. One of the ways to truly clear your record is through filing a petition for retroactive first offender, which we discussed in a prior post. If you knew about first offender and chose not to exercise the right or you already had a felony conviction, you are not eligible for retroactive first offender.

Requesting a Pardon Through State Board of Pardons and Parole

Requesting a pardon is the second best option to retroactive first offender. While a pardon does not completely clear your record, it will show on your criminal history that you have been formally “pardoned” or forgiven by the State of Georgia. This can be very beneficial for seeking new employment or continuing education.

The application for requesting a pardon can be filled out with or without an attorney and is available through the State Board of Pardons and Parole’s website.

What is Required for a Pardon?

For all crimes other than sex offenses, there are four general conditions that must be met to petition for a pardon. First, you must have completed all sentences at least five years before applying. That means that you must have been off probation for five years. If you were given a straight confinement sentence, you must have been out of confinement for 5 years. Second, you must not have committed any new crimes in the last five years. Third, you cannot have any pending charges. And lastly, you must have paid off any fines or restitution that were required as part of your sentence.

For sex offenses, receiving a pardon is much more difficult. The wait period after your sentence is 10 years, and you must submit to several other conditions 90 days before filing. These conditions include a psychosexual evaluation, a polygraph examination, providing a SORB risk level, and more.

Meeting these conditions does not necessarily mean that you will receive a pardon, but it does mean that your petition will at least be considered. In your petition you will want to highlight two things to better your chances. First, any of your achievements, advancements in education or employment, participation in charitable organizations, or any other involvement in your church or community. Second, you need to explain the way in which the conviction is holding you back in life. For example, if it is barring you from progressing in employment or education.

Restoring Your Rights

If you are pardoned, this will automatically restore your civil and political rights such as the right to hold office, serve on a jury, and to be a notary public. Even without getting a pardon, you can petition to restore your rights. You can do this after only two years of having completed your sentence, lived a law abiding life, and paid off all your fines and restitution. Your right to vote is immediately restored after having completed your sentence. It is also important to note that a restoration of rights doesn’t automatically restore the right to possess a firearm. This must be inquired of separately, and is within the discretion of the board to grant.

If you have any questions about your criminal history, please contact our office today for a free consultation!

Justification: Self Defense in Georgia Law

Self-defense (legally known as justification) is one of the most effective legal defenses a person can raise in a criminal case in Georgia. This is in part because an argument of self-defense is available before and during trial. To raise this defense before trial, your attorney can file what is commonly called an “immunity motion.” During trial, your attorney can ask the judge to instruct the jury on the law of justification prior to closing argument. With a justification defense, you essentially get two bites at the apple.

Immunity Motion

If you believe you have a self-defense claim but the prosecutor will not dismiss your case, it is crucial that your attorney file an immunity motion and request a hearing. Georgia Code 16-3-24.2 makes it clear that anyone who threatens or actually uses force in a justified manner “shall be immune from criminal prosecution.” Georgia courts have also made it clear that a hearing on immunity is to be held prior to trial commencing. At the hearing the defendant is required to prove that she was justified in her use or threat of force by a preponderance of the evidence (meaning more likely than not).

What is Justification?

Georgia Code 16-3-21 states that a “person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.” This is another way of saying that it is legal to use force against a person if you or another is in immediate danger of unlawful force. Additionally, use of deadly force is only justified when a person reasonably believes that deadly force is necessary to prevent “death or great bodily injury.”

However, the statute also puts limitations on this defense. First, the person seeking to use the defense cannot have been the aggressor in the scenario. Second, the person cannot provoke an attack as an excuse to harm the other person. Third, a person cannot use the justification defense when committing, attempting to commit, or fleeing from commission of a felony.

Justification at Trial

If you lose your immunity motion, you may still raise the defense at trial. And it may actually be easier to win at trail than at a hearing due to the burden of proof being different. As mentioned above, the burden of proof is on the Defendant to show at an immunity hearing that his or her conduct was justified. At trial, the defense need only show evidence that of justification and then the burden shifts to the state to prove beyond a reasonable doubt that the defendant was not justified. This is a very high burden for the state. Simply put, if the jurors have any suspicion or doubt that you could have been justified in the case, they must acquit you of the charge.

If you believe you may have a self-defense claim in your case, contact a Georgia criminal defense attorney today for a free consultation and case analysis.

Can you withdraw a guilty plea in Georgia?

In today’s post, I discuss when a person is allowed to withdraw a guilty plea. Many people, for one reason or another, change their mind after pleading guilty to a crime and wish to withdraw their plea. Georgia law permits the withdraw of a guilty plea only in certain circumstances.

Withdrawing a Guilty Plea Before Sentence is Imposed

The first and easiest way to withdraw a guilty plea is to do it before the judge imposes a sentence. Georgia Code 17-7-93(b) permits a defendant the total right to withdraw a guilty plea so long as they do so before they are sentenced. This is especially applicable when the judge delays sentencing and sets a sentencing hearing. Often, however, a defendant is sentenced immediately after the tender of his or her guilty plea. After sentence, whether a plea can be withdrawn comes under the discretion of the judge.

Withdrawing a Guilty Plea After Sentence is Imposed

Withdrawing a guilty plea becomes much more difficult after someone is sentenced in a case. According to the Uniform Superior Court Rules, a judge may withdraw a plea after sentence, but only if it is to correct a “manifest injustice.” Every plea made by a criminal defendant must be knowingly, voluntarily, and intelligently made. This basically means that the person must have been in their right mind and not fooled, tricked, misled or forced in to the plea. A plea that was not tendered knowingly, voluntarily, and intelligently, would be a manifest injustice.

Furthermore, the motion to withdraw must be filed within in the same term of court when the plea was originally entered. (In many counties in Georgia, a term of court is about every 3 months). After the time limit expires, the filing of a petition for habeas corpus is the only possible relief available.

It is also worth noting that pleas made under the First Offender Act or pleas into drug court (or any type of deferred sentencing) cannot be withdrawn. This is because there is no conviction actually being entered in on the case, which makes the statute inapplicable.

Bottom Line

If you or someone you know wants to withdraw a guilty plea, consult with a Georgia criminal defense attorney to better understand your options. A person may be able to withdraw a plea if done before sentencing or if the judge determines that not allowing the withdraw would be a manifest injustice.

Should You Hire An Attorney While Your Case Is Still Under Investigation?

The simple answer to this question is, yes! In many criminal cases, a person is arrested either in the act of the alleged crime or immediately after. Other times, however, an arrest warrant comes after a period of investigation. This usually happens with more serious crimes. A person does not always know when he is under investigation, but if he is, it’s a good idea to contact an attorney. Getting a case shelved or dismissed prior to arrest or indictment is a best case scenario in any criminal case.

Benefits of an Attorney

If you discover you are being investigated for a crime, you and your attorney could potentially help the investigation end before an arrest is made or an indictment is sought. One of the major benefits of having an attorney help you, is that your attorney can speak with investigators directly without you having to speak with them. In this way the statements your attorney makes in your behalf cannot be used against you in the same way as when you speak to the police directly and make statements. Even if you do want to speak to investigators directly, your attorney can be present to represent your interests. An attorney can also begin to investigate the case and interview witnesses for your defense. This information can then be shared with the state’s investigators.

Investigating the Case

For very serious cases such as rape or child molestations, there are a number of approaches your attorney can take to investigate the case. This can include speaking with witnesses and gathering statements, obtaining physical evidence, health records, and other documents that could help your case. Where a person under investigation is sure of their innocence, they can pay for a private polygraph test, and show the exculpatory results to the investigators. This will not necessarily always lead to the dismissal of the case, but it very well could. For many criminal cases, polygraph tests are worth the price.

Bottom Line

While hiring an attorney when your case is still under investigation will not always lead to a dismissal, there will almost certainly be a better chance of it. An experienced criminal defense attorney can get involved in the case, conduct a separate investigation, and attempt to persuade the investigator not to refer the case for prosecution. Especially for very serious charges, it is important to consult an attorney if you believe you are under investigation of a crime.

Understanding Statutes of Limitations in Georgia Criminal Cases

In today’s post we will explore the concept of statute of limitations in Georgia law. Simply put, a statute of limitation is a time limit on how long the state can wait to prosecute you for a crime after it has occurred. The general rule is that the more serious the crime is, the longer the state can wait to prosecute you. For example, the general statute of limitations for misdemeanors is two years. This means that for misdemeanors the state must file an indictment or accusation charging you within two years of the date the alleged offense or offenses occurred. If prosecutors indict or accuse you even a day after the statute of limitations has run, the whole case must be dismissed. However, once the prosecutors have formally charged you in a case, there is no statute of limitations defense.

General Statutes of Limitation for Felonies

In Georgia, there is no statute of limitations for murder. That means that even if police discover or recover evidence of a murder from 50 years ago, they may still charge someone. The crime of rape must be charged within 15 years. Charges for all other serious felonies punishable by death or life imprisonment must be brought within 7 years and all other felonies must be brought within 4 years.

Special Exceptions to the Rule

While the above are the general time limits for prosecution, there are several exceptions. For example, for low-level felonies the statute of limitations becomes 7 years instead of 4 when there is a victim in the case younger than 18. Similarly, in sex crime cases, the statute of limitations does not begin to run either until the alleged victim reaches 16 years old or when the alleged victim reports the crime (whichever occurs earlier). For victims 65 years or older, the statute of limitations does not begin to run until the crime is reported or discovered by the state. Another important exception comes up when DNA analysis is used to prove identity in serious felonies such as armed robbery, kidnapping, rape, and other serious crimes. In these instances, the statute of limitations is voided, and the crime can be prosecuted at any time. It is important to be aware of these and other exceptions that can apply to a statute of limitations defense.

Excluded Periods of Time

Georgia Code 17-3-2 provides that the time period within which prosecution must begin (according to 17-3-1) does not include any period which:

(1)  The accused is not usually and publicly a resident within this state;(2)  The person committing the crime is unknown or the crime is unknown;(3)  The accused is a government officer or employee and the crime charged is theft by conversion of public property while such an officer or employee; (4)  The accused is a guardian or trustee and the crime charged is theft by conversion of property of the ward or beneficiary.

In a recent case, the Georgia Court of Appeals defined the instance when the “person committing the crime is unknown” as when ‘the State possesses sufficient evidence to authorize the lawful arrest of that person for the crime charged.” See Riley v. State, S18A1048 (Feb. 18, 2019).

Bottom Line

If there is any question whether the statute of limitations has run in your case, contact us today for a free consultation! If time has expired and no exception applies, you could very well have the case against you dismissed!

Understanding Arrest Warrants, Indictments, and Accusations

In today’s post, I discuss the difference between arrest warrants, indictments, and accusations. Most criminal cases in Georgia begin with police officers arresting an individual for a violation of the Georgia criminal code. Arrests can occur with or without an arrest warrant depending on the circumstances. If a police officer has probable cause to believe that a person has just committed a crime, he can arrest that person without getting a warrant first. “Probable cause” is the constitutional standard that separates legal arrests from illegal arrests. If there is no probable cause that a law was broken, there can be no legal arrest.

Being Arrested Is Not the Same as being Charged with a Crime

A legal arrest (supported by probable cause) is enough to keep a person in jail unless and until he posts bond. But just because a person may have been arrested for a crime, does not necessarily mean he will be charged. Once the prosecutor gets the case, he or she can either dismiss charges, add charges, or keep the charges identical to the arrest warrants.

There are two ways to be charged with a crime in Georgia: either through an indictment or accusation. An indictment is the most formal way of charging someone with a crime and is reserved for more serious felonies. To indict someone, prosecutors must present the facts before a grand jury (a group of 16-23 citizens) and have them determine if there is sufficient probable cause for the crime. Georgia statute permits the use of accusations for misdemeanors and some less-serious felony charges. With an accusation, only the prosecutor needs to determine if there is probable cause, a grand jury is not necessary. However, if a prosecutor does not believe there is sufficient evidence to prosecute you, he can request that the warrants against you be dismissed

Having Your Case Dismissed or Nol Prossed

The period between when you are arrested and when prosecutors are making the decision whether to accuse or indict the case is a crucial one. It is essential that during this period your criminal defense attorney negotiate on your behalf to see if the prosecutor will dismiss the warrant before you are formally charged. This is generally the quickest way to get rid of the case, and to have it eventually be off your record.

Yet even if prosecutors go forward and accuse or indict your case, the case can still be dismissed in what is known as a “nolle prosequi” or “nol pros.” Nol pros is just a fancy latin term for a dismissal of a case that occurs after an accusation or indictment has been filed. A nol pros is fairly common and can occur very early in the case all the way up to the eve of trial. It’s even possible for a prosector to nol pros charges during trial.

A nol pros usually occurs if there has been a successful motion to suppress, new evidence discovered, or some other event that negatively affects the prosecution’s case. A dismissal or nol pros is the best case scenario because it ends the case without having to go through the risk of trial. If you have any further questions about the criminal justice process in Georgia, contact us today so we can answer your questions and schedule a free consultation.