2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 4 - Criminal Attempt, Conspiracy, and Solicitation
§ 16-4-6. Penalties for Criminal Attempt

1. A person convicted of the offense of criminal attempt to commit a crime punishable by death or by life imprisonment shall be punished by imprisonment for not less than one year nor more than 30 years.
2. A person convicted of the offense of criminal attempt to commit a felony, other than a felony punishable by death or life imprisonment, shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he or she could have been sentenced if he or she had been convicted of the crime attempted, by one-half the maximum fine to which he or she could have been subjected if he or she had been convicted of the crime attempted, or both.
3. A person convicted of the offense of criminal attempt to commit a misdemeanor shall be punished as for a misdemeanor.

(Code 1933, § 26-1006, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 2007, p. 501, § 1/SB 79.)

- Ga. L. 2007, p. 501, § 2/SB 79, not codified by the General Assembly, provides that this Code section shall apply to all crimes committed on and after July 1, 2007.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1873, § 4712 are included in the annotations for this Code section.

- Penalties prescribed for attempts to commit offenses apply equally whether indictment is under statute for attempt, or under some other statute for offense itself and only attempt is found by jury. Miller v. State, 58 Ga. 200 (1877) (decided under former Code 1873, § 4712).

O.C.G.A. §§ 16-4-6 and 16-13-33 are mutually exclusive and there is no uncertainty as to which applies because § 16-13-33 renders § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act as when a crime is penalized by a special law, the general provisions of the penal code are not applicable; accordingly, there is no merit to the assertion that § 16-13-33 contravenes the rule of lenity, and the trial court did not err in imposing a sentence for marijuana convictions under that provision rather than § 16-4-6. Woods v. State, 279 Ga. 28, 608 S.E.2d 631 (2005).

- Defendant's life sentence for kidnapping the seven-year-old girl and the 30-year sentence for criminal attempt to kidnap the two-year-old girl did not constitute cruel and unusual punishment forbidden by the Eighth Amendment because the sentences fell within the statutory limits set by the legislature for those offenses; furthermore, because the defendant's challenges to the constitutionality of the defendant's sentences were untimely as the defendant did not make the challenge at the first available opportunity - in the sentencing hearing - but instead waited until the defendant's motion for new trial to object, the defendant's challenges were untimely and were not subject to review. Ashley v. State, 340 Ga. App. 539, 798 S.E.2d 235 (2017).

- In pleading guilty to criminal attempt to commit rape, a defendant admitted that the defendant intended to commit the specific crime of rape and took a substantial step toward that end. Because the crime attempted was related to a sexually violent offense, namely rape, the defendant was properly required to comply with the registration requirements of O.C.G.A. § 42-1-12, and the trial court did not err in convicting the defendant for violating the registry statute. Jenkins v. State, 284 Ga. 642, 670 S.E.2d 425 (2008).

- Legislative purpose of the Georgia Racketeer Influenced and Corrupt Organizations Act does not preclude recovery for personal injuries. Reaugh v. Inner Harbour Hosp., 214 Ga. App. 259, 447 S.E.2d 617 (1994).

- That felony may be punished as misdemeanor when prisoner is recommended to mercy, does not take attempt to commit such felony out of operation of former Code 1873, § 4712 if there were no recommendation of mercy. Miller v. State, 58 Ga. 200 (1877) (decided under former Code 1873, § 4712).

- O.C.G.A. § 16-13-33, concerning attempt, in no way affects operation of O.C.G.A. § 16-4-3, but rather it renders the penalty in O.C.G.A. § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act, O.C.G.A. § 16-13-1 et seq. Davis v. State, 164 Ga. App. 633, 298 S.E.2d 615 (1982).

- Contribution rights by which liability is apportioned among joint tortfeasors will be recognized under Georgia Racketeer Influenced Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq., when those rights are expressly created by the parties in a contractual agreement preceding the litigation. Sikes v. AT & T Co., 841 F. Supp. 1572 (S.D. Ga. 1993).

- Trial court did not err in giving the jury an instruction on conspiracy when the offense charged was attempted bribery. Since the instruction is free of confusion or other error, it follows that there is no "possibility" or "real probability" that the instruction would induce the jury to convict the defendant of conspiracy (maximum sentence: five years) rather than of attempted bribery (a ten-year maximum). Carpenter v. State, 167 Ga. App. 634, 307 S.E.2d 19 (1983), aff'd, 252 Ga. 79, 310 S.E.2d 912 (1984).

Defendant was properly sentenced as recidivist under O.C.G.A. § 17-10-7 as O.C.G.A. § 16-7-1(b) was inapplicable since defendant was convicted of attempted burglary, which was subject to sentencing under O.C.G.A. § 16-4-6; further, defendant had been convicted of two other burglaries and two other felonies, so defendant was a four-time felony offender subject to the general recidivist sentencing scheme in O.C.G.A. § 17-10-7. Smith v. State, 273 Ga. App. 107, 614 S.E.2d 219 (2005).

Trial court properly vacated a consent order modifying the defendant's original sentence, as such was based upon a mistake of law induced by the defendant personally, and hence, void; moreover, because the defendant was sentenced as a recidivist, the trial court was required to impose a sentence pursuant to O.C.G.A. § 17-10-7(a). Sosebee v. State, 282 Ga. App. 905, 640 S.E.2d 379 (2006).

- When the defendant was sentenced to 10 years, the maximum allowed under O.C.G.A. § 16-4-6(b) for a first offense of attempted burglary, the court would not disturb the sentence as the sentence was within the statutory limits. Armour v. State, 292 Ga. App. 111, 663 S.E.2d 367 (2008).

- Trial court erred by failing to merge the defendant's aggravated assault counts into the armed robbery count for purposes of sentencing because the offenses merged as a matter of fact, and as such, the aggravated assault conviction was the lesser offense and had to be merged into the attempted armed robbery conviction. Reed v. State, 318 Ga. App. 412, 734 S.E.2d 113 (2012).

- In 2007, the maximum penalty for criminal attempt to commit aggravated sodomy was increased from ten years to thirty years pursuant to O.C.G.A. § 16-4-6. The increased sentence, however, applied only to crimes committed on or after July 1, 2007; therefore, the trial court erred in sentencing a defendant to 30 years for an attempted sodomy that occurred on March 2, 2006. Bryant v. State, 304 Ga. App. 755, 697 S.E.2d 860 (2010).

Trial court erred in sentencing the defendant to 20 years to serve on the criminal attempt to commit robbery count because the maximum sentence the defendant could have received was 10 years as convicted of the offense of criminal attempt to commit a felony, not punishable by death or life imprisonment, could be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which the defendant could have been sentenced if the defendant had been convicted of the crime attempted; the maximum sentence for robbery was 20 years; and half that time was 10 years. Ranger v. State, 330 Ga. App. 578, 768 S.E.2d 768 (2015).

- Defendant's appeal from the defendant's conviction of attempted murder, in which the defendant argued that the law was ambiguous about whether the defendant's attempt to kill the defendant's spouse was punishable as attempted murder or only as aggravated assault, was res judicata and barred the defendant's petition for habeas corpus; contrary to the defendant's argument, there was no change in the law because McNair v. State, 293 Ga. 282 (2013), applying the rule of lenity when there was ambiguity between two felony punishments, was dictated by the Supreme Court's own precedents. Rollf v. Carter, 298 Ga. 557, 784 S.E.2d 341 (2016).

Cited in Bearden v. State, 122 Ga. App. 25, 176 S.E.2d 243 (1970); Williams v. State, 123 Ga. App. 9, 179 S.E.2d 351 (1970); Witt v. State, 124 Ga. App. 535, 184 S.E.2d 517 (1971); Fullewellen v. State, 127 Ga. App. 568, 194 S.E.2d 275 (1972); Cowart v. State, 136 Ga. App. 528, 221 S.E.2d 649 (1975); Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976); Farley v. State, 238 Ga. 181, 231 S.E.2d 761 (1977); Johnson v. State, 144 Ga. App. 568, 241 S.E.2d 458 (1978); Head v. Hopper, 241 Ga. 164, 243 S.E.2d 877 (1978); Dunbar v. State, 146 Ga. App. 136, 245 S.E.2d 486 (1978); Taylor v. Hopper, 596 F.2d 1284 (5th Cir. 1979); Gunter v. State, 155 Ga. App. 176, 270 S.E.2d 224 (1980); McKenzie v. State, 248 Ga. 294, 282 S.E.2d 95 (1981); Stillwell v. State, 161 Ga. App. 230, 288 S.E.2d 295 (1982); Morast v. Lance, 631 F. Supp. 474 (N.D. Ga. 1986); Ranson v. State, 198 Ga. App. 659, 402 S.E.2d 740; Daniel v. State, 200 Ga. App. 79, 406 S.E.2d 806 (1991); English v. State, 282 Ga. App. 552, 639 S.E.2d 551 (2006); Upton v. Johnson, 282 Ga. 600, 652 S.E.2d 516 (2007); Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013); Marshall v. State, Ga. , S.E.2d (Sept. 8, 2020).