2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 9 - Forgery and Fraudulent Practices
Article 1 - Forgery and Related Offenses
§ 16-9-2. Penalties for Forgery

Universal Citation: GA Code § 16-9-2 (2020)
  1. A person who commits the offense of forgery in the first degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than 15 years.
  2. A person who commits the offense of forgery in the second degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.
  3. A person who commits the offense of forgery in the third degree shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years.
  4. A person who commits the offense of forgery in the fourth degree shall be guilty of a misdemeanor; provided, however, that upon the third and all subsequent convictions for such offense, the defendant shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than five years.

(Code 1933, § 26-1702, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 857, § 6; Ga. L. 1982, p. 3, § 16; Ga. L. 2012, p. 899, § 3-5/HB 1176.)

Editor's notes.

- Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."

Law reviews.

- For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012).

JUDICIAL DECISIONS

Uttering or delivering writing is not an essential element of forgery in second degree, as it is in forgery in first degree. Ward v. State, 123 Ga. App. 216, 180 S.E.2d 280 (1971); McGowan v. State, 173 Ga. App. 438, 326 S.E.2d 805 (1985).

Uttering or delivering a writing is an essential element of the offense of forgery in the first degree; but it is not an essential element of the offense of forgery in the second degree. Browning v. State, 174 Ga. App. 759, 331 S.E.2d 625 (1985).

Defendant may be indicted for first and second-degree forgery and convicted of only one. Ward v. State, 123 Ga. App. 216, 180 S.E.2d 280 (1971).

Proof of forgery and elements thereof.

- Forgery and each individual factual element thereof are capable of proof by direct and/or circumstantial evidence. Johnson v. State, 211 Ga. App. 151, 438 S.E.2d 657 (1993).

When defendant was convicted of second degree forgery under O.C.G.A. § 16-9-2(a), defendant was not entitled, under the rule of lenity, to have that reduced to a misdemeanor conviction under the false identification statute, O.C.G.A. § 16-9-4(b)(1), because the two offenses were not identical. Velasquez v. State, 276 Ga. App. 527, 623 S.E.2d 721 (2005).

Defendant's conviction for second degree forgery under O.C.G.A. § 16-9-2(a), based on the mere possession of an identification card from another state bearing a likeness but the name of another person, had to be reversed because there was no evidence that defendant had ever presented the card to anyone, so defendant's intent to defraud, which was an element of the offense, was not proved. Velasquez v. State, 276 Ga. App. 527, 623 S.E.2d 721 (2005).

Interpretation of the second degree forgery statute, O.C.G.A. § 16-9-2(a), stating that mere possession of a fraudulent identification card was sufficient for a conviction would improperly subsume the offense of possession of a false identification document, under O.C.G.A. § 16-9-4(b)(1), in second degree fraud, under O.C.G.A. § 16-9-2(a). Velasquez v. State, 276 Ga. App. 527, 623 S.E.2d 721 (2005).

Trial court erred in convicting the defendant of forgery because the state failed to prove the intent to defraud required by O.C.G.A. § 16-9-2(a) when the defendant did not present a counterfeit $100 bill since it was only found when officers inventoried the defendant's personal effects prior to booking the defendant into the county jail; the state did not present evidence that the defendant had ever presented or attempted to negotiate the bill to anyone at any time, and all that was shown was mere possession. Nelson v. State, 302 Ga. App. 583, 691 S.E.2d 363 (2010).

Effect of restrictive endorsement by payee.

- Fact that check had been restrictively endorsed (i.e., for deposit only) by the payee (not the defendant) did not bar defendant's conviction of second degree forgery for possessing the check with intent to defraud. Browning v. State, 174 Ga. App. 759, 331 S.E.2d 625 (1985).

Separate offenses.

- Simultaneous possession of forged documents, when accompanied by the requisite fraudulent intent, constitutes separate offenses. Ebenezer v. State, 191 Ga. App. 901, 383 S.E.2d 373 (1989).

Evidence sufficient to find forgery with intent to defraud.

- Defendant's possession of forged United States currency, defendant's posting of forged writings and defendant's flight from law enforcement officers was sufficient to authorize the jury's finding, beyond a reasonable doubt, that defendant possessed the forged United States currency with the requisite intent to defraud. Ebenezer v. State, 191 Ga. App. 901, 383 S.E.2d 373 (1989).

When the defendant gave U.S. currency to a bartender and had currency with the same serial number in the defendant's wallet, and the bartender, an officer, and a detective testified as to the chain of custody of the currency and as to the currency's physical characteristics inconsistent with genuine currency, there was sufficient evidence to support the defendant's forgery convictions under O.C.G.A. §§ 16-9-1 and16-9-2; the jury was authorized to conclude on the basis of this evidence that the currency was not genuine and that the defendant tendered one and possessed another for the purpose of defrauding the bar. Walsh v. State, 283 Ga. App. 817, 642 S.E.2d 879 (2007).

Conviction for second-degree forgery.

- When the defendant represented to a ticket agency that the defendant had authentic badges for a golf tournament that were actually fake, when the defendant sold and attempted to sell the badges to the agency, and when the defendant had 26 more fake badges at home the evidence was sufficient for conviction for second degree forgery since the jury was free to believe or disbelieve the defense theory that, although the badges were fake, the defendant did not know that the badges were fake. Davis v. State, 264 Ga. App. 128, 589 S.E.2d 700 (2003).

Defendant's conviction of forgery in the second degree under O.C.G.A. § 16-9-2(a) was affirmed, because while the state improperly offered hearsay evidence, there was overwhelming and uncontroverted competent evidence that the checks in question were in fact forged. Middlebrooks v. State, 277 Ga. App. 551, 627 S.E.2d 154 (2006).

Defendant's conviction for second degree forgery was supported by evidence that checks with a fictitious name were found under the driver's seat of the car the defendant was driving after the defendant and others attempted to present a similar fraudulent check for merchandise. Smith v. State, 322 Ga. App. 433, 745 S.E.2d 683 (2013).

Altered prescription.

- Evidence supported forgery conviction because defendant's doctor testified that the doctor wrote a narcotic prescription for defendant with no refills, the prescription form presented by defendant to the pharmacist had the "2" for refills circled, the pharmacist filled the prescription for defendant, who was a regular customer, the altered prescription was admitted into evidence, and defendant admitted altering the prescription. Allen v. State, 272 Ga. App. 23, 611 S.E.2d 697 (2005).

Bank's liability for acceptance of forged instrument.

- Where an attorney lacked authority to endorse checks on behalf of a client, a bank, which accepted for deposit to the attorney's trust account a check payable to the client and the attorney containing the attorney's forged endorsement of the client's name, was liable for conversion; overruling John Bean Mfg. Co. v. Citizens Bank of Gainesville, 60 Ga. App. 616, 4 S.E.2d 924 (1939) and Titus v. Commercial Bank, 214 Ga. App. 657, 448 S.E.2d 753 (1994). Tifton Bank & Trust Co. v. Knight's Furn. Co., 215 Ga. App. 471, 452 S.E.2d 219 (1994).

Cited in Cross v. State, 122 Ga. App. 208, 176 S.E.2d 517 (1970); Johnson v. State, 126 Ga. App. 757, 191 S.E.2d 614 (1972); Forbes v. State, 129 Ga. App. 231, 199 S.E.2d 548 (1973); Cowan v. State, 130 Ga. App. 320, 203 S.E.2d 311 (1973); Hitchcock v. State, 146 Ga. App. 470, 246 S.E.2d 477 (1978); Allstate Ins. Co. v. Renshaw, 151 Ga. App. 80, 258 S.E.2d 744 (1979); Harrison v. State, 151 Ga. App. 758, 261 S.E.2d 482 (1979); Bairentine v. State, 156 Ga. App. 341, 274 S.E.2d 736 (1980); Lewis v. State, 180 Ga. App. 890, 351 S.E.2d 100 (1986); Trust Co. Bank v. Henderson, 185 Ga. App. 367, 364 S.E.2d 289 (1987); Loden v. State, 199 Ga. App. 683, 406 S.E.2d 103 (1991); Sosebee v. State, 282 Ga. App. 905, 640 S.E.2d 379 (2006).

RESEARCH REFERENCES

Am. Jur. 2d.

- 36 Am. Jur. 2d, Forgery, § 1 et seq.

C.J.S.

- 37 C.J.S., Forgery, § 1 et seq.

ALR.

- Genuine making of instrument for purpose of defrauding as constituting forgery, 51 A.L.R. 568.

Liability for leaving contract forms accessible to stranger who, by forgery, gives such forms apparent authenticity as completed contracts, 85 A.L.R. 83.

Filling in terms other than authorized in paper executed with blanks, as forgery, 87 A.L.R. 1169.

Alteration of written instrument in order to conform to actual intention as forgery, 93 A.L.R. 864.

Alteration or counterfeiting of postage stamps as criminal offense, 127 A.L.R. 1469.

Presumptions and inferences in criminal cases from unexplained possession or uttering of forged paper, 164 A.L.R. 621.

Invalid instrument as subject of forgery, 174 A.L.R. 1300.

Alteration of figures indicating amount of check, bill, or note, without change in written words, as forgery, 64 A.L.R.2d 1029.

Propriety of jury, or court sitting as trier of facts, making a comparison of a disputed writing with a standard produced in court, without the aid of an expert witness, 80 A.L.R.2d 272.

Signing credit charge or credit sales slip, as forgery, 90 A.L.R.2d 822.

Criminal prosecution or disciplinary action against medical practitioner for fraud in connection with claims under medicaid, medicare, or similar welfare program for providing medical service, 50 A.L.R.3d 549.

Falsifying of money order as forgery, 65 A.L.R.3d 1307.

Filing of false insurance claims for medical services as ground for disciplinary action against dentist, physician, or other medical practitioner, 70 A.L.R.4th 132.

What constitutes a public record or document within statute making falsification, forgery, mutilation, removal, or other misuse thereof an offense, 75 A.L.R.4th 1067.

Evidence of intent to defraud in state forgery prosecution, 108 A.L.R.5th 593.

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