2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 2 - Death Penalty Generally
§ 17-10-40. Change of Time Period for Execution When Time Period Set for Execution Has Passed; Recordation on Court Minutes; Length of and Time Limitation for New Time Period for Execution; Setting Day and Time for Execution

1. Where the time period for the execution of any convicted person in a capital case has passed by reason of a supersedeas incident to appellate review, a stay of execution by the State Board of Pardons and Paroles, or for any other reason, a judge of the superior court of the county where the case was tried shall have the power and authority to pass an order fixing a new time period for the execution of the original sentence without requiring the convicted person to be brought before him by a writ of habeas corpus. The order shall be recorded on the minutes of the court and a certified copy of the order shall be sent immediately to the convicted person's attorney of record, to the Attorney General, and to the superintendent of the state correctional institution at the place of execution.
2. The new time period for the execution shall be seven days in duration and shall commence at noon on a specified date and shall end at noon on a specified date. The new time period for the execution fixed by the judge shall commence not less than ten nor more than 20 days from the date of the order.
3. The Department of Corrections shall set the day and time for execution within the time period designated by the judge of the superior court. If the execution is not carried out on the day and at the time originally set by the Department of Corrections, the Department of Corrections is authorized to set new dates and times for execution within the period designated by the judge of the superior court.

(Ga. L. 1924, p. 195, § 7; Code 1933, § 27-2518; Ga. L. 1983, p. 665, § 2; Ga. L. 1985, p. 1463, § 2.)

- Pursuant to Code Section 28-9-5, in 1985, "Offender Rehabilitation" was changed to "Corrections" in subsection (c).

JUDICIAL DECISIONS

Disclosure of identifying information of persons and entitites involved in executions.

- Georgia Supreme Court held that it is was not unconstitutional for the State of Georgia to maintain the confidentiality of the names and other identifying information of the persons and entities involved in executions, pursuant to O.C.G.A. § 42-5-36(d), including those who manufacture the drug or drugs to be used. Owens v. Hill, 295 Ga. 302, 758 S.E.2d 794 (2014).

Trial judge can exercise the jurisdiction vested in the judge under this section in vacation. Mallory v. Chapman, 158 Ga. 228, 122 S.E. 884, 34 A.L.R. 310 (1924).

- Order of a trial judge fixing a new date for execution of sentence, after the original date has passed, is not void because the defendant is involuntarily absent and has not waived or authorized anyone else to waive the defendant's right to be present at the time and place of resentencing, and the passage of such order is not violative of the defendant's rights under the several provisions of the state and federal Constitutions. McBurnett v. Balkcom, 207 Ga. 452, 62 S.E.2d 180 (1950).

- Although it was necessary for the defendant to have been present in court when the original sentence of execution was pronounced, as well as during other proceedings throughout the trial, in the absence of waiver, no violation of the due process clause of U.S. Const., amend. 14 appears, when the attack is not on the original sentence, but merely on an order fixing a new date of execution, entered in the defendant's absence, which order became necessary after the date fixed in the original sentence had passed because supersedeas pending the determination of a writ of error, since setting a new date of execution is not a new sentence of the defendant, as to which the judge has no discretion, but merely setting the time. Fowler v. Grimes, 198 Ga. 84, 31 S.E.2d 174, cert. denied, 323 U.S. 784, 65 S. Ct. 266, 89 L. Ed. 626 (1944).

- Prisoner who has been convicted and sentenced to be executed will not be discharged on habeas corpus because the sheriff permitted the date assigned for the execution to elapse; instead a new date will be assigned. Mallory v. Chapman, 158 Ga. 228, 122 S.E. 884, 34 A.L.R. 310 (1924).

Cited in Williams v. State, 187 Ga. 415, 1 S.E.2d 27 (1939); Smith v. Henderson, 190 Ga. 886, 10 S.E.2d 921 (1940); Parks v. State, 206 Ga. 675, 58 S.E.2d 142 (1950); McLendon v. Balkcom, 207 Ga. 100, 60 S.E.2d 753 (1950).

OPINIONS OF THE ATTORNEY GENERAL

Authority to transport defendant for physical examination.

- Person in the custody of the sheriff, who has not actually been transported to the penitentiary and delivered to the director, remains with the superior court, and the Board of Pardons and Paroles or the State Board of Corrections (now Board of Offender Rehabilitation) would have no jurisdiction, authority, or power to pass any order directing such a person to be transported to another place for physical examination. 1945-47 Op. Att'y Gen. p. 434.

- Once the Department of Offender Rehabilitation has obtained custody of a prisoner whose execution date has been stayed and no new execution date has been set, it remains until execution and so long as the sentence is valid. 1971 Op. Att'y Gen. No. 71-188.

- To constitute a facially valid order establishing a new execution date for a condemned person where the original execution date has passed, the order must establish a new execution date within limits set forth in O.C.G.A. § 17-10-40. 1981 Op. Att'y Gen. No. 81-105.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, § 718 et seq.

- Effect of permitting day fixed for execution to pass without carrying out sentence, 34 A.L.R. 314.

Voluntary absence when sentence is pronounced, 59 A.L.R.5th 135.