2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 2 - Death Penalty Generally
§ 17-10-33. Imposition of Sentence of Death Upon Judgment of Death; to Whom Copies of Sentence Sent; Conveying Defendant to State Correctional Institution; Expenses of Transporting Defendant
Upon a judgment of death made by a judge, it shall be the duty of the judge to sentence the defendant to death and to indicate the sentence in writing, which writing shall be filed with the papers in the case against the defendant. A certified copy of the sentence shall be sent by the clerk of the court in which the sentence is pronounced to the defendant's attorney of record, to the Attorney General, and to the superintendent of the state correctional institution where the execution is to take place, not less than ten days prior to the time fixed in the sentence of the court for the execution of the defendant. In all cases it shall be the duty of the sheriff of the county in which the defendant is sentenced, together with one deputy or more if in the sheriff's judgment it is necessary, and provided that in all cases the number of guards shall be approved by the trial judge or, if the trial judge is not available, by the judge of the probate court of the county in which the defendant is sentenced, to convey the defendant to the appropriate state correctional institution, not more than 20 days nor less than two days prior to the time fixed in the judgment for the execution of the defendant, unless otherwise directed by the Governor or unless a stay of execution has been caused by an appeal, granting of a new trial, or other order of a court of competent jurisdiction. The expense for transporting the defendant to the state correctional institution for the purpose of execution of the death sentence shall be paid by the county governing authority of the county in which the defendant was convicted, out of any funds on hand in the treasury of the county.
(Ga. L. 1924, p. 195, § 3; Code 1933, § 27-2514; Ga. L. 1973, p. 159, § 9; Ga. L. 1983, p. 665, § 1; Ga. L. 2000, p. 947, § 2.)
Editor's notes.- Ga. L. 2000, p. 947, § 1, not codified by the General Assembly, provides that: "It is the intention of the General Assembly to provide for execution by lethal injection for persons sentenced to death after conviction of capital crimes committed on or after May 1, 2000. It is the further intention of the General Assembly that persons sentenced to death for crimes committed prior to the effective date of this Act be executed by lethal injection if the Supreme Court of the United States declares that electrocution violates the Constitution of the United States or if the Supreme Court of Georgia declares that electrocution violates the Constitution of the United States or the Constitution of Georgia."
JUDICIAL DECISIONS
This section did not violate U.S. Const., amends. 8 or 14. Mason v. State, 236 Ga. 46, 222 S.E.2d 339, cert. denied, 428 U.S. 910, 96 S. Ct. 3225, 49 L. Ed. 2d 1219 (1976).
Variance between title and subject matter of legislation.
- Ga. L. 1924, p. 195 did not contain matter not expressed in its caption, in violation of Ga. Const. 1877, Art. III, Sec. VII, Para. VIII (see Ga. Const. 1983, Art. III, Sec. V, Para. III). Howell v. State, 164 Ga. 204, 138 S.E. 206, appeal dismissed, 275 U.S. 576, 48 S. Ct. 114, 72 L. Ed. 435 (1927).
Manner in which capital sentences executed is for legislative enactment.
- There being no provision in the Constitution conferring upon sheriffs of counties the power to execute sentences of the courts in capital cases, the manner of execution of such sentences is for legislative enactment. Dunaway v. Gore, 164 Ga. 219, 138 S.E. 213 (1927).
In jury cases, trial judge is bound by jury's recommended sentence. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).
Cited in Meyers v. Whittle, 171 Ga. 509, 156 S.E. 120 (1930); Williams v. State, 187 Ga. 415, 1 S.E.2d 27 (1939).
OPINIONS OF THE ATTORNEY GENERAL
Custody when execution stayed but no new date set.
- Department of Corrections (now Department of Offender Rehabilitation) has authority to accept a prisoner for whom no new execution date has been set. Op. Att'y Gen. No. 71-188.
O.C.G.A.
§§ 42-5-50(a) and42-5-51(b), inapplicable in death cases. - Supervening events described by former Code 1933, § 27-2514 (see O.C.G.A. § 17-10-33) did not include the filing of a motion for new trial, so that such nonfinality of conviction which, by the terms of Ga. L. 1968, p. 1399, § 1 (see O.C.G.A. § 42-5-50(a)) precluded state penitentiary acceptance of custody of prisoners sentenced to serve time does not in the case of prisoners sentenced to be executed, preclude acceptance of custody. That is to say, the procedure of retention of convicted prisoners in the county jails until their convictions have become final, as provided in Ga. L. 1968, p. 1399, § 1, does not apply to persons sentenced to death, because they are not "sentenced to serve time," as stated in Ga. L. 1968, p. 1399, § 1 (see O.C.G.A. § 42-5-51(b)), and therefore do not have "a sentence," in the words of Ga. L. 1968, p. 1399, § 1, and because former Code 1933, § 27-2514 (see O.C.G.A. § 17-10-33) specifically requires the sheriff to convey them to the penitentiary unless the Governor directs otherwise, a stay has been caused by appeal, a new trial has been granted, or a court orders otherwise. 1971 Op. Att'y Gen. No. 71-188.
RESEARCH REFERENCES
Am. Jur. 2d.
- 21 Am. Jur. 2d, Criminal Law, § 718 et seq. 21A Am. Jur. 2d, Criminal Law, § 855 et seq. 39 Am. Jur. 2d, Habeas Corpus and Postconviction Remedies, § 61.
C.J.S.- 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2324 et seq.
ALR.
- Liability under policy of life insurance where insured is executed for crime, 36 A.L.R. 1255.
Propriety of imposition of death sentence by state court following jury's recommendation of life imprisonment or lesser sentence, 8 A.L.R.4th 1028.
