Georgia's New Sentencing Reform Act HB1176 Changes to expungement law and criminal offenses and punishments (click here for actual text)

 

Highlights:

Drug Courts and Mental Health Courts:

Statutory framework for creation, certification, operation, and funding of drug and mental health courts. Imposes $1,000 fee for participants, which fee can be waived in whole or part.

Effective July 1, 2012, to help defray the cost of these new programs, revises County Drug Abuse and Treatment Education Fund by imposing new 50% base fine surcharge for DUI, Vehicular homicide (involving DUI), Homicide by Vehicle (involving alcohol), Reckless Driving (involving intoxication), Minor in Possession, Attempted Alcohol Purchase by Minors surcharge.

 

Burglary:

Modification to criminal statute dealing with burglary effective July 1, 2012.

Creates First Degree Burglary for any kind of dwelling, whether occupied or not, punishable by imprisonment for 1- 20 years.

Second conviction punishable by sentence of 2-20 years

Third conviction punishable by sentence of 5-25 years

Creates Second Degree Burglary for burglaries of structures other that those used for dwelling as well as airplanes, boats and railroad cars.

First conviction carries a sentence of imprisonment of 1 to 5 years.

Second and subsequent conviction carries a sentence of imprisonment of 1 to 8 years.

Upon conviction of a fourth and any subsequent burglary conviction of any degree, no portion of any sentence imposed may be deferred, probated, or suspended.

 

Changes to Theft Statutes:

 

All thefts shall be misdemeanors with the following exceptions:

If value item of theft exceeds $24,999.99, punishable by imprisonment of between two and 20 years if value of item of theft is between $5,000 and less than 425,000, punishable by one to ten years, may be punished as misdemeanor in court's discretion.

if value of item of theft is at least $1,500.01 and less than $5,000, punishable by sentence of one to five years or as a misdemeanor in court's discretion.

Upon a third misdemeanor theft conviction, punishment is one to five years imprisonment and court can sentence as misdemeanor in judge's discretion.

Provides enhanced punishment for fiduciaries of bank or government agencies of 1-15 yrs up to $100,000 fine.

If theft of firearms, explosives or destructive imposes sentence of imprisonment of 1-10 years.

Enhanced punishment for thefts involving telemarketing, variously defined memorials, commercial vehicles and crops.

 

Shoplifting:

Increases misdemeanor shoplifting threshold from, $300 to $500.

"Rapid Repeater" enactment: enhances punishment for three or more shoplifting offenses within a single county within one week and various other enhancements for repeat conduct within 180 days.

Mandatory minimum fine of $500 for a second shoplifting conviction,

Mandatory non-suspendable imprisonment, boot camp or monitored house arrest for third or subsequent shoplifting conviction

Criminalizes various acts involving making upc codes with intent to defraud a retailer.

 

Forgery:

 

First degree for making or altering or possessing and uttering with intent fraudulent writings other than check- 1- 15 years imprisonment.

Second degree forgery for making, altering, or possessing writings other than check, with intent, 1-5 years imprisonment

Third degree forgery for intentionally passing a fraudulently made checks for check in the amount of $1,500 or more or for simply possessing ten or more fraudulent checks in no specific amount. Imprisonment 1 to 5 years.

Fourth degree forgery for making, possessing, uttering or delivering fraudulent check of less than $1,500 or for simply possessing less than ten fraudulent checks in no specific amount. Punished as a misdemeanor but upon third and subsequent conviction, punished as a felony with a sentence of 1 to 5 years imprisonment.

 Deposit account fraud (formerly bad check):

Imposes graduated punishments depending on amounts and frequency of bounced checks.

 

Illegal drugs:

 

Lowers sentences for possession of very small or diluted quantities of schedule one and two substances, excluding opium and heroine, or flunitrrazepam ("date rape" drug-schedule four). 

 

Criminal Statutes of Limitations:

Extended in some cases upon discovery of DNA evidence, provided there is sufficient DNA evidence remaining that can be tested by the accused.

Removes statute of limitations for certain sex and slavery crimes.

 

Probation:

Renames probation to "active probation" for purposes of previous non reporting probation after two years provision.

Active probation can be shortened if requested by probation officer, defendant, or court's motion.

assigned probation supervisor must file report with the court after two years and every years recommending whether probation should terminate early.

 

Recidivist Treatment:

Recidivist Statute 17-10-7 inapplcable to OCGA 16-13-30 drug offenses.

 

Mandatory Child Abuse Reporting:

 

Adds abortion providers and certain other professions to the list of mandatory reporters.

Clergy acting as clergy receiving confession exempt from reporting.

 

Reform of Expungement Procedure:

 

Individual can request GCIC criminal history and criminal history correction. If the reporting law enforcement agency ignores request for correction, the individual can petition the sentencing court for correction. If a law enforcement entity. disseminated inaccurate criminal history, later corrected, the individual can then request the law enforcement agency disseminate within 60 days, corrected information to the person or entity that received the inaccurate information.

Access to criminal history information on cases closed favorably to the accused is restricted to the GCIC for cases where:

1-Prior to indictment case never prosecuted,

2-The offense is closed by the arresting agency,

3-The center doesn't receive notice from the arresting agency that case went to prosecutor or transferred to another law enforcement agency or prosecutor within two years for misdemeanor.

or, other than serious violent felony or under 16 victim sex felony, four years under 17-3-2.1, or seven years for serious violent or sex felonies, case is dismissed by prosecutor, two no bills are returned by grand jury, or if after accused or indicted all charges dismissed or nolle prossed, successful sentence completion under OCGA16-13-2 (conditional discharge),successful drug or mental health court case completion followed by order or nolle prosse, provided that the person has not been arrested for five years for a non serious traffic offense, complete acquittal after trial unless proseutor demonstrates to trial court with clear and convincing evidence that public interest should allow dissemination.

 

Record cannot be restricted if;

1-after indictment case was nolle prossed per negotiations resulting in conviction for related offense,

2-if case nolle prossed as result of granting of motion to suppress or motion in limine, 

3-the charged conduct was part of pattern of criminal activity,

In cases where an individual's felony charge was nolle prossed or dismissed felony but individual was convicted of misdemeanor from same occurrence, individual may petition the superior court to restrict access within four years of arrest. Court can restrict record if it finds the charges in question did not arise out of same underlying transaction or occurrence.

In cases where individual was convicted and sentenced to other that death but the sentence was vacated or reversed on appeal or habeas and if the case is not retried within two years, the individual may petition superior court to restrict access. Court shall consider reason for reversal, reason for no retrial and public's interest in knowing about the case.

If case dead docketed more than 12 months an individual may petition superior court to restrict record. Restriction will not be permitted if there is an active warrant pending.

If an individual is convicted of one or series of misdemeanors and was a youthful offender, provided that such individual completed sentence and was not rearrested in five years, other than non-serious traffic, and further provided the person was not convicted here or elsewhere, he can petition the superior court for restriction.

Restriction not permitted for convictions for child molestation, 16-6-4 enticing child indecent purpose, 16-6-5 sexual assault by disciplinary or supervisory authority, 16-6-5.1 pimping, pandering, sexual battery offenses related to minors, theft other than minor shoplifting.

An individual who has won restriction may petition court for an order requiring clerk to restrict file.

 

Restricted information is always available to law enforcement and Judicial Qualifications Commission.

 

Regarding arrests prior to July 1, 2013, an individual can in writing ask law enforcement agency to restrict all records and must pay reasonable fees not to exceed $50.

Within 30 days of receipt of the request the agency shall provide prosecutor a copy and within 90 days prosecutor must notify agency of approval or denial of restriction request. if restriction is approved then the agency must restrict within 30 days. If prosecutor declines approval, individual may petition superior court.  Prosecutor will not be not be upheld if clear convincing evidence exists that the individual will be harmed over the interest of the public's right to be informed.

 

Magistrate Courts:

 

County magistrates shall have unincorporated county jurisdiction on misdemeanor marijuana, misdemeanor shoplifting, misdemeanor trespass, Minor in Possession.