2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 10 - Sentence and Punishment
Article 1 - Procedure for Sentencing and Imposition of Punishment
§ 17-10-6.1. Punishment for Serious Violent Offenders; Authorization for Reduction in Mandatory Minimum Sentencing

1. As used in this Code section, the term "serious violent felony" means:
   1. Murder or felony murder, as defined in Code Section 16-5-1;
   2. Armed robbery, as defined in Code Section 16-8-41;
   3. Kidnapping, as defined in Code Section 16-5-40;
   4. Rape, as defined in Code Section 16-6-1;
   5. Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
   6. Aggravated sodomy, as defined in Code Section 16-6-2; or
   7. Aggravated sexual battery, as defined in Code Section 16-6-22.2.
2. 1. Except as provided in subsection (e) of this Code section, any person convicted of the serious violent felony of kidnapping involving a victim who is 14 years of age or older or armed robbery shall be sentenced to a mandatory minimum term of imprisonment of ten years, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.
   2. Except as provided in subsection (e) of this Code section, the sentence of any person convicted of the serious violent felony of:
      1. Kidnapping involving a victim who is less than 14 years of age;
      2. Rape;
      3. Aggravated child molestation, as defined in subsection (c) of Code Section 16-6-4, unless subject to the provisions of paragraph (2) of subsection (d) of Code Section 16-6-4;
      4. Aggravated sodomy, as defined in Code Section 16-6-2; or
      5. Aggravated sexual battery, as defined in Code Section 16-6-22.2

         shall, unless sentenced to life imprisonment, be a split sentence which shall include a mandatory minimum term of imprisonment of 25 years, followed by probation for life, and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court.

   3. No person convicted of a serious violent felony shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42, relating to probation for first offenders, or any other provision of Georgia law relating to the sentencing of first offenders. The State of Georgia shall have the right to appeal any sentence which is imposed by the superior court which does not conform to the provisions of this subsection in the same manner as is provided for other appeals by the state in accordance with Chapter 7 of Title 5, relating to appeals or certiorari by the state.
3. 1. Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
   2. For a first conviction of a serious violent felony in which the accused has been sentenced to death but the sentence of death has been commuted to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison. The minimum term of imprisonment shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
   3. For a first conviction of a serious violent felony in which the accused has been sentenced to imprisonment for life without parole, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles or for any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections.
   4. Except as otherwise provided in this subsection, any sentence imposed for the first conviction of any serious violent felony shall be served in its entirety as imposed by the sentencing court and shall not be reduced by any form of parole or early release administered by the State Board of Pardons and Paroles or by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court; provided, however, that during the final year of incarceration an offender so sentenced shall be eligible to be considered for participation in a department administered transitional center or work release program.
4. For purposes of this Code section, a first conviction of any serious violent felony means that the person has never been convicted of a serious violent felony under the laws of this state or of an offense under the laws of any other state or of the United States, which offense if committed in this state would be a serious violent felony. Conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.
5. In the court's discretion, the judge may depart from the mandatory minimum sentence specified in this Code section for a person who is convicted of a serious violent felony when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.
6. Any sentence imposed pursuant to this Code section shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court or any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles; provided, however, that during the final year of incarceration, a defendant so sentenced shall be eligible to be considered for participation in a Department of Corrections administered transitional center or work release program.

(Code 1981, §17-10-6.1, enacted by Ga. L. 1994, p. 1959, § 11; Ga. L. 1998, p. 180, § 2; Ga. L. 2006, p. 379, § 20/HB 1059; Ga. L. 2009, p. 64, § 1/SB 193; Ga. L. 2009, p. 223, § 3/SB 13; Ga. L. 2011, p. 752, § 17/HB 142; Ga. L. 2013, p. 222, § 8/HB 349; Ga. L. 2014, p. 866, § 17/SB 340.)

- Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Sentence Reform Act of 1994.'"

Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: "The General Assembly declares and finds:

"(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and

"(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections."

Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: "The provisions of this Act shall apply only to those offenses committed on or after the effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a 'conviction' for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act." This Act became effective January 1, 1995.

Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: "The General Assembly declares and finds: (1) That the 'Sentence Reform Act of 1994,' approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond , 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the 'Sentence Reform Act of 1994,' that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond , it is the expressed intent of the General Assembly that persons who commit a serious violent felony specified in the 'Sentence Reform Act of 1994' shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment."

Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:

"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;

"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;

"(3) Providing for community and public notification concerning the presence of sexual offenders;

"(4) Collecting data relative to sexual offenses and sexual offenders;

"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and

"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.

"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."

Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment." This Act became effective July 1, 2006.

Ga. L. 2009, p. 223, § 8/SB 13, not codified by the General Assembly, provides that: "Except as provided in this section, the provisions of this Act shall apply only to those offenses committed after the effective date of this Act. With express written consent of the state, an accused whose offense was committed prior to the effective date of this Act may elect in writing to be sentenced under the provisions of this Act, provided that: (1) jeopardy for the offense charged has not attached or (2) the accused has been sentenced to death but the conviction or sentence has been reversed on appeal and the state is not barred from seeking prosecution after the remand."

Ga. L. 2009, p. 223, § 9/SB 13, not codified by the General Assembly, provides that: "Except as provided in Section 8 of this Act, the amendment or repeal of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act."

Ga. L. 2009, p. 223, § 10/SB 13, not codified by the General Assembly, provides that: "A person may be sentenced to life without parole without the prosecutor seeking the death penalty under the laws of this state." Ga. L. 2011, p. 752, § 17(3)/HB 142 codified these provisions at Code Section 17-10-16.1.

Ga. L. 2009, p. 223, § 11(a)/SB 13, not codified by the General Assembly, provides that the law as set forth in this Code section as it existed prior to April 29, 2009, shall apply to all offenses committed on and before April 29, 2009, and the amendments by this Act shall apply to all crimes committed on and after April 29, 2009.

Ga. L. 2009, p. 223, § 11(b)/SB 13, not codified by the General Assembly, provides that: "The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment."

Ga. L. 2011, p. 752, § 17(2)/HB 142, not codified by the General Assembly, provides, in part, that the amendment to paragraph (b)(2) was made to conform with Merritt v. State, 286 Ga. 650 (2010).

Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."

- For article, "Campbell v. Georgia: Mandatory Minimum Sentencing Survives Separation of Power Attacks, Remaining a Viable Option for the Legislature in Its War on Crime," see 17 Ga. St. U.L. Rev. 637 (2001). For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For annual survey on criminal law, see 66 Mercer L. Rev. 37 (2014). For note, "Can't Do the Time, Don't Do the Crime?: Dixon v. State, Statutory Construction, and the Harsh Realities of Mandatory Minimum Sentencing in Georgia," see 22 Ga. St. U.L. Rev. 519 (2005). For note, "Calling on the Legislature: Dixon v. State and Georgia's Statutory Scheme to Protect Minors from Sexual Exploitation," see 56 Mercer L. Rev. 777 (2005).

ANALYSIS

• General Consideration
• Specific Crimes
• Sentencing

General Consideration

Constitutionality.

- O.C.G.A. § 17-10-6.1 does not impose unconstitutionally excessive punishment and the fact that defendants were 18 years old at the time of sentencing and may have been first offenders did not render the statute unconstitutional as applied to the defendants. Campbell v. State, 268 Ga. 44, 485 S.E.2d 185 (1997).

O.C.G.A. § 17-10-6.1, which dictates the punishment for serious violent offenders, in conjunction with O.C.G.A. § 17-10-7, the sentencing statute applicable to recidivist armed robbers, does not violate either the federal or the state constitutions. Byrd v. State, 236 Ga. App. 485, 512 S.E.2d 372 (1999).

Statute governing the punishment for serious violent offenders does not violate the separation of powers doctrine of the state constitution. Byrd v. State, 236 Ga. App. 485, 512 S.E.2d 372 (1999).

O.C.G.A. § 17-10-6.1(c)(1) and (c)(3) are not unconstitutional on the basis that, when taken together, they render defense counsel ineffective by presenting counsel with an impossible conundrum regarding the representation of a convicted client -- having to choose between seeking a term of years without parole, or a life sentence with a possibility of parole after fourteen years. Guyton v. State, 272 Ga. 529, 531 S.E.2d 94 (2000).

Statutory scheme governing punishment for a first-time rape conviction, O.C.G.A. §§ 16-6-1(b) and17-10-6.1, gave a defendant fair notice that the defendant could be sentenced either to life imprisonment, eligible for parole after 30 years, or a minimum of 25 years without parole, with any additional years likewise not subject to any possibility of parole. Therefore, the statutes were not unconstitutionally vague and allowed the defendant to intelligently plea bargain. Merritt v. State, 286 Ga. 650, 690 S.E.2d 835 (2010).

- Defendant failed to show that trial counsel was ineffective by failing to assert that the state's statutory and constitutional provisions requiring the service of mandatory minimum sentences before consideration for parole regardless of age constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution because any consideration for Eighth Amendment purposes of incomplete brain maturation due solely to age was inappropriate since the defendant was 20 years old at the time the defendant committed the crime and was sentenced to a term of years rather than death. Gandy v. State, 290 Ga. 166, 718 S.E.2d 287 (2011).

- O.C.G.A. § 17-10-6.1 does not violate the separation of powers doctrine in that the legislature acted within constitutional bounds in establishing minimum and maximum punishment and in eliminating judicial discretion in sentencing certain violent offenders. Campbell v. State, 268 Ga. 44, 485 S.E.2d 185 (1997).

O.C.G.A. § 17-10-6.1 does not violate equal protection because the legislation bears a reasonable relationship to the legitimate legislative concern of deterring crime and ensuring that a court imposed sentence will be served in the sentence's entirety. Campbell v. State, 268 Ga. 44, 485 S.E.2d 185 (1997).

Legislature's choice of sentence for a conviction on the charge of aggravated sexual battery, a ten year mandatory minimum prison sentence, was not so wholly irrational or grossly disproportionate to the severity of the crime that the sentence constituted cruel and unusual punishment; thus, that sentence imposed in the defendant's case was affirmed. Taylor v. State, 259 Ga. App. 457, 576 S.E.2d 916 (2003).

- Defendant's sentence was vacated because although the fact that the defendant was sentenced as a recidivist did not appear on the face of the sentencing sheet, the trial court did indicate that the court was following the state's recommendation in sentencing the defendant, and that recommendation included that the defendant be sentenced as a recidivist; a trial court cannot rely upon the hearsay statement of a prosecutor to establish a fact for purposes of sentencing. Thomas v. State, 310 Ga. App. 404, 714 S.E.2d 37 (2011).

- State's claim that defendant's sentence was not subject to review because the sentence followed a probation revocation was rejected as the defendant initially was sentenced as a first offender; the first offender sentence was revoked, and a sentence of 12 or more years was imposed. State v. Swartz, 277 Ga. App. 241, 626 S.E.2d 210 (2006).

- Defendant found guilty of a serious violent felony under O.C.G.A. § 17-10-6.1 could apply for first offender status prior to the 1998 amendments to that section and the First Offender Act, O.C.G.A. § 42-8-60 et seq. Fleming v. State, 271 Ga. 587, 523 S.E.2d 315 (1999), reversing Fleming v. State, 233 Ga. App. 483, 504 S.E.2d 542 (1998); Horton v. State, 241 Ga. App. 605, 527 S.E.2d 254 (1999); Griffin v. State, 244 Ga. App. 447, 535 S.E.2d 783 (2000).

Since the defendants committed the crimes charged prior to the March 29, 1998, amendment to O.C.G.A. § 17-10-6.1 and enactment of the provision in O.C.G.A. § 42-8-66, stating that a defendant who is convicted of a serious violent felony as defined in O.C.G.A. § 17-10-6.1(a) is not eligible for first offender treatment, the trial court erred in determining that the defendants were not eligible for first offender status. Riley v. State, 243 Ga. App. 697, 534 S.E.2d 437 (2000).

Prior to the 1998 amendments to O.C.G.A. § 17-10-6.1 and to the First Offender Act (O.C.G.A. § 42-8-60 et seq.), a defendant found guilty of a serious violent felony under that section was not barred from requesting and obtaining first offender treatment. Burns v. State, 241 Ga. App. 886, 528 S.E.2d 547 (2000).

Applying the Georgia Supreme Court's holding from Fleming v. State, 271 Ga. 587 (523 S.E.2d 315) (1999), resentencing was required because, prior to the 1998 amendments to O.C.G.A. §§ 17-10-6.1 and42-8-60 et seq., a defendant found guilty of a serious violent felony under § 17-10-6.1 was not precluded from requesting and obtaining first offender treatment. Burleson v. State, 242 Ga. App. 217, 529 S.E.2d 228overruling State v. Allmond, 225 Ga. App. 509, 484 S.E.2d 306 (1997).

Since the serious violent felonies committed by the defendant occurred prior to the March 29, 1998, amendment to O.C.G.A. § 17-10-6.1 and enactment of the provision in O.C.G.A. § 42-8-66, stating that a defendant who is convicted of a serious violent felony as defined in § 17-10-6.1(a) is not eligible for first offender treatment, then the prohibition of the latter section had no retroactive application to the defendant to limit the discretion of the trial judge in what sentence to impose. Camaron v. State, 246 Ga. App. 80, 539 S.E.2d 577 (2000).

- Allowing the defendant who was sentenced to ten years for armed robbery, eleven years for aggravated assault, and five years on a firearms charge, all to be served concurrently, to serve the remainder of the sentence on probation after serving ten years, the mandatory minimum sentence for armed robbery was illegal and therefore completely void. State v. Hamilton, 238 Ga. App. 40, 517 S.E.2d 583 (1999).

Defendant did not receive ineffective assistance of counsel in entering the defendant's guilty plea even though the defendant asserted, in part, that trial counsel misled the defendant about the applicability of first offender treatment; the defendant was properly informed that first offender treatment was not available under O.C.G.A. § 17-10-6.1 as the defendant committed felony murder. Shaheed v. State, 276 Ga. 291, 578 S.E.2d 119 (2003).

Defendant was not eligible to be sentenced as a first offender because such treatment was not available for a conviction for armed robbery. Johnson v. State, 274 Ga. App. 848, 619 S.E.2d 488 (2005).

There was no error in the trial court's failure to convict the defendant of kidnapping and armed robbery, in violation of O.C.G.A. §§ 16-5-40 and16-8-41, respectively, under the First Offender Act as O.C.G.A. § 42-8-66 specifically stated that the Act did not apply to sentences for violent felonies outlined in O.C.G.A. § 17-10-6.1, and those two crimes were listed as serious violent felonies. Isaac v. State, 275 Ga. App. 254, 620 S.E.2d 483 (2005).

- Defendants were not deprived of due process of law on the basis that the constraints upon the court's discretion under O.C.G.A. § 17-10-6.1 denied the defendants meaningful allocution. Campbell v. State, 268 Ga. 44, 485 S.E.2d 185 (1997).

Construction with § 17-10-1. - O.C.G.A. § 17-10-1(b) does not conflict with O.C.G.A. § 17-10-6.1 and, thus, the trial court has no discretion to alter or to allow the parole board to alter the mandatory minimum sentence of ten years for any serious violent felony, including armed robbery. Taylor v. State, 241 Ga. App. 439, 526 S.E.2d 910 (1999).

Since the defendant pled guilty to aggravated child molestation, the trial court did not err in ruling that the court lacked discretion to sentence the defendant under O.C.G.A. § 17-10-1(b). Rolader v. State, 249 Ga. App. 213, 547 S.E.2d 778 (2001).

Pursuant to O.C.G.A. § 16-13-31(g)(1), the trial court lacked the authority to probate or suspend sentences imposed against two defendants in unrelated criminal actions, and neither the 2004 nor the 2006 amendments to the general sentencing provisions under O.C.G.A. § 17-10-1(a)(1) were relevant; moreover, because O.C.G.A. §§ 17-10-6.1 and17-10-6.2 were statutes that defined certain categories of crimes and provided the sentencing guidelines for those categories, it did not appear that the list of these two exceptions normally would have included § 16-13-31 or any other specific criminal statute, and any omission would be significant only with regard to a statute that defined classes or categories of crimes. Gillen v. State, 286 Ga. App. 616, 649 S.E.2d 832 (2007), cert. denied, No. S07C1780, 2007 Ga. LEXIS 809 (Ga. 2007).

§ 49-4A-9(e). - Discretion given to sentencing courts for reviewing the sentences of juveniles turning 17 in O.C.G.A. § 49-4A-9(e) was limited by the mandatory minimum sentence requirements of O.C.G.A. § 17-10-6.1; therefore, in reviewing a juvenile's prison sentence for armed robbery, the superior court erred by reducing the juvenile's original five-year prison sentence to which the state had agreed. State v. Hudson, 303 Ga. 348, 812 S.E.2d 270 (2018).

Cited in Burleson v. State, 233 Ga. App. 769, 505 S.E.2d 515 (1998); Ellis v. State, 240 Ga. App. 498, 523 S.E.2d 914 (1999); Baldwin v. State, 242 Ga. App. 205, 529 S.E.2d 201 (2000); Johnson v. State, 276 Ga. 57, 573 S.E.2d 362 (2002); Lee v. State, 267 Ga. App. 834, 600 S.E.2d 825 (2004); Davis v. Murrell, 279 Ga. 584, 619 S.E.2d 662 (2005); Gibson v. State, 281 Ga. App. 607, 636 S.E.2d 767 (2006); Upton v. Johnson, 282 Ga. 600, 652 S.E.2d 516 (2007); Brown v. Incarcerated Pub. Defender Clients Div. 3, 288 Ga. App. 859, 655 S.E.2d 704 (2007); Dunagan v. State, 283 Ga. 501, 661 S.E.2d 525 (2008); Bradshaw v. State, 284 Ga. 675, 671 S.E.2d 485 (2008); Cox v. Howerton, 290 Ga. 693, 723 S.E.2d 891 (2012), cert. denied, U.S. , 133 S. Ct. 609, 184 L. Ed. 2d 393 (2012); Freeman v. State, 328 Ga. App. 756, 760 S.E.2d 708 (2014); Hayward v. Danforth, 299 Ga. 261, 787 S.E.2d 709 (2016); Benton v. Hines, 306 Ga. 722, 832 S.E.2d 801 (2019).

Specific Crimes

Sentence for burglary and aggravated assault.

- Defendant's 20-year sentences without parole for burglary and aggravated assault were not improper merely because the defendant was eligible for parole on the murder conviction after 14 years, pursuant to O.C.G.A. § 17-10-6.1(c)(1); O.C.G.A. § 17-10-7(a) and (c) mandated the maximum sentences for burglary and aggravated assault without parole, and did not require probation or suspension of any part. Clark v. State, 279 Ga. 243, 611 S.E.2d 38 (2005).

- Defendant was incorrect in arguing that O.C.G.A. § 17-10-6.1 reduced the applicable sentence in a kidnapping case to a minimum of ten years with life being discretionary as the statute established a mandatory minimum sentence for certain violent felonies, including kidnapping. Fulcher v. State, 259 Ga. App. 648, 578 S.E.2d 264 (2003).

There is no requirement that a kidnapping victim receive bodily injury when sentencing is pursuant to O.C.G.A. § 17-10-6.1; moreover, as the defendant had also been convicted of armed robbery, the trial court correctly imposed a mandatory life without parole sentence for either of the defendant's second serious violent felonies: kidnapping and armed robbery. Moorer v. State, 286 Ga. App. 395, 649 S.E.2d 537 (2007), cert. denied, No. S07C1910, 2007 Ga. LEXIS 806 (Ga. 2007).

Trial counsel did not render ineffective assistance by failing to raise the constitutionality of the defendant's mandatory minimum sentence of 25 years imprisonment without parole, as codified in O.C.G.A. §§ 16-5-40(d)(2) and17-10-6.1(b)(2), because the defendant's concurrent 25-year sentences for child kidnapping did not raise a threshold inference of gross disproportionality; after beating the mother in the young children's presence so severely as to break her jaw and cause other injuries, the defendant ordered all three of the victims to enter a car, drove the victims away, and left the victims in a location where the victims were isolated and unprotected. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).

O.C.G.A. §§ 16-5-40(d)(2) and17-10-6.1(b)(2), as applied to the defendant, did not violate due process because an earlier indictment charged regular kidnapping and, only after plea negotiations failed, the more severe sentence was included in a re-indictment because such circumstances did not raise a presumption of prosecutorial vindictiveness in the absence of actual evidence thereof. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).

- O.C.G.A. §§ 16-5-40(d)(2) and17-10-6.1(b)(2) do not violate equal protection by punishing a person differently depending on the age of the victim because that classification is not arbitrarily drawn and, instead, is rationally related to the legitimate governmental interest in protecting children. Jones v. State, 290 Ga. 670, 725 S.E.2d 236 (2012).

- Defendant's sentence to life imprisonment without parole for the defendant's conviction of aggravated child molestation was not illegal as it was the defendant's second "serious violent felony" pursuant to O.C.G.A. § 17-10-6.1(a)(5), and accordingly, the trial court had no discretion but to impose that sentence pursuant to O.C.G.A. § 17-10-7(b)(2); it was noted that the defendant's motion to vacate, modify, correct, or set aside the sentence was made four and a half years after the defendant's sentencing, at which point the trial court no longer had jurisdiction because it was past the court's term. Gosnell v. State, 262 Ga. App. 641, 586 S.E.2d 350 (2003).

Mandatory sentence for aggravated child molestation of ten years without parole pursuant to O.C.G.A. §§ 16-6-4(d)(1) and17-10-6.1 was not cruel and unusual punishment as applied to the defendant, despite the fact that the defendant was 18 years old at the time of the act and the victim was only four years younger. Widner v. State, 280 Ga. 675, 631 S.E.2d 675 (2006).

- Habeas court properly ruled that an inmate's sentence of ten years in prison for having consensual oral sex with a 15-year-old when the inmate was only 17 years old constituted cruel and unusual punishment in light of the 2006 amendments to O.C.G.A. §§ 16-6-4 and42-1-12. Humphrey v. Wilson, 282 Ga. 520, 652 S.E.2d 501 (2007).

Defendant failed to establish that the defendant was rendered ineffective assistance of counsel with regard to a guilty plea to aggravated child molestation and other crimes as the defendant failed to show that the defendant indicated any time prior to sentencing that the defendant wanted to withdraw the guilty plea. Further, although the defendant established that defense counsel improperly advised the defendant that parole was possible, since the defense strategy in seeking the plea agreement was not to ensure parole eligibility but to minimize the defendant's exposure to sentencing as a recidivist, no ineffectiveness was established. Floyd v. State, 293 Ga. App. 235, 666 S.E.2d 611 (2008).

- Trial court did not abuse the court's discretion in denying a defendant's post-conviction motion for deoxyribonucleic acid (DNA) testing because the defendant was barred from requesting DNA testing under O.C.G.A. § 5-5-41(c)(3) since the defendant's conviction for the crime of incest in violation of O.C.G.A. § 16-6-22(a)(3) was not defined as a serious violent felony under O.C.G.A. § 17-10-6.1(a). Hunter v. State, 294 Ga. App. 583, 669 S.E.2d 533 (2008).

- O.C.G.A. § 17-10-6.1(a) defined both rape and aggravated sodomy as "serious violent felonies"; thus, in light of a prior aggravated sodomy conviction, a trial court would have been required to sentence the defendant to life without parole for subsequent violent rape felonies under the sentencing statutes either as the statutes existed at the time of the rapes, 1996, or at the time of the defendant's trial, 1998. Thompson v. State, 279 Ga. App. 657, 632 S.E.2d 407 (2006).

- Fairness of a defendant's sentence of life imprisonment for being a party to rape was not examined because, contrary to the defendant's claims, the plain terms of O.C.G.A. § 17-10-6.1(a)(5) did not prohibit the defendant from applying for scrutiny of the sentence by the Georgia Sentence Review Panel; as the defendant conceded, the sentence fell within the statutory limits under O.C.G.A. §§ 16-2-21 and16-6-1, and as a rule, sentences that fell within such limits were not reviewed for legal error. Johnson v. State, 283 Ga. App. 99, 640 S.E.2d 644 (2006).

- Misinformation about review from the Sentence Review Panel came after the defendant pled guilty to the rape charge and thus could not have contributed to the defendant's decision to enter a guilty plea. Askew v. State, 318 Ga. App. 454, 734 S.E.2d 222 (2012).

Sentencing

Sentence not grossly out of proportion.

- Claim by the defendant that a sentence pursuant to O.C.G.A. §§ 16-6-22.2(b) and17-10-6.1(b)(2) constituted cruel and unusual punishment because the sentence was grossly out of proportion to the severity of the crime, and that the sentence was overly severe under the circumstances, was within the exclusive jurisdiction of the Georgia Supreme Court when the claim challenged the constitutionality of the statutes themselves; as the sentence was legally authorized and within statutory limits, the sentence was upheld. Colton v. State, 297 Ga. App. 795, 678 S.E.2d 521 (2009).

- Since the defendant entered a negotiated guilty plea and received the sentences for which the defendant had bargained, the defendant's argument that the defendant's attorney did not inform the defendant of the defendant's possible parole eligibility and that the court did not tell the defendant that the defendant would not be eligible for parole did not alter the voluntariness of the defendant's plea since parole eligibility is not so much a direct consequence of a trial court's acceptance of a plea bargain as it is a collateral legislative consequence of the defendant's own decision to accept a certain sentence in exchange for the defendant's plea, and the court is entitled to presume that a defendant has apprised oneself of such collateral consequences before agreeing to accept that plea bargain. Wilcox v. State, 236 Ga. App. 235, 511 S.E.2d 597 (1999).

Defendant was not entitled to relief under 28 U.S.C. § 2254; the defendant failed to show that the defendant was prejudiced by counsel's failure to inform the defendant that the defendant faced a mandatory life sentence under O.C.G.A. § 17-10-6.1 because the evidence showed that the defendant likely would not have accepted a plea bargain that included a 15 to 25-year sentence because the victim's whereabouts were unknown, and the defendant felt that the aggravated assault and armed robbery case against the defendant was weak without the victim's testimony. Carson v. Thompson, F.3d (11th Cir. Apr. 27, 2007)(Unpublished).

When the defendant entered a negotiated guilty plea to malice murder, and the state nol prossed the remaining charges, the defendant's plea counsel was not ineffective as the defendant was correctly advised in numerous ways about the defendant's parole eligibility because the plea offer cited O.C.G.A. § 17-10-6.1(c)(1) and stated that the defendant had to serve 30 years before being eligible for parole; the defendant signed the offer to show the defendant's acceptance of its terms; and, at the plea hearing, the trial court asked the defendant if the defendant understood how the possibility of parole worked; the defendant answered yes; and the defendant stated that it would be 30 years under the plea. Stokes v. State, 299 Ga. 37, 785 S.E.2d 883 (2016).

- Mandated minimum ten year prison term under O.C.G.A. § 17-10-6.1 was not unconstitutionally excessive. Carter v. State, 257 Ga. App. 620, 571 S.E.2d 831 (2002).

- Because the defendant's original sentence upon conviction for aggravated sexual battery was not in compliance with the minimum sentence requirements of O.C.G.A. § 17-10-6.1, resentencing did not violate double jeopardy. Bryant v. State, 229 Ga. App. 534, 494 S.E.2d 353 (1998).

Trial court was without jurisdiction to resentence the defendant after expiration of the term during which the sentence was entered since the sentence was not void. Shaw v. State, 233 Ga. App. 232, 504 S.E.2d 18 (1998).

- Defendant convicted of rape was required to be sentenced in accordance with the sentencing provisions that existed at the time of the defendant's crime, and the court's failure to sentence the defendant according to guidelines in effect at the time rendered the sentence void ab initio, requiring resentencing. Lockhart v. State, 227 Ga. App. 481, 489 S.E.2d 594 (1997).

- Trial court's denial of the defendant's motion to vacate sentences for child molestation, aggravated child molestation, and incest was upheld because to apply the split-sentencing provisions to pre-2006 law would require the court to re-write applicable statutes to make them subject to statutory provisions that did not even exist at the time the statutes were enacted, which the court was prohibited to do without contravening the plain meaning of the statutory text. Bryson v. State, 350 Ga. App. 206, 828 S.E.2d 450 (2019).

- O.C.G.A. § 17-10-6.1(c)(1) gives a defendant no affirmative right to parole. Howard v. State, 233 Ga. App. 724, 505 S.E.2d 768 (1998), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Trial court's failure to advise defendants of the "no parole" policy of O.C.G.A. § 17-10-6.1 did not constitute manifest injustice mandating reversal. Bess v. State, 235 Ga. App. 372, 508 S.E.2d 664 (1998).

- Trial counsel's performance was not deficient for not informing the defendant that the defendant would not be eligible for parole for 30 years because the offenses of trafficking a person for sexual servitude that the defendant was convicted of did not constitute serious violent felonies; and no other authority or competent evidence supported the defendant's claim that the defendant would not be eligible for parole until the defendant served 30 years in prison; thus, trial counsel did not misinform the defendant as to the defendant's parole eligibility if the defendant rejected the plea deal, was convicted at trial, and was sentenced to life imprisonment. Byrd v. State, 344 Ga. App. 780, 811 S.E.2d 85 (2018), overruled on other grounds by Thomas v. State, 352 Ga. App. 640, 835 S.E.2d 640 (2019).

- Habeas court erred by holding that a petitioner was not affirmatively misinformed by petitioner's counsel regarding petitioner's parole eligibility on a 20-year sentence for armed robbery because, under O.C.G.A. § 17-10-6.1, the petitioner was required to serve the entire 20 years. Remand to the habeas court was required to determine whether, but for counsel's deficiency, the petitioner would have proceeded to trial rather than plead guilty. Johnson v. Roberts, 287 Ga. 112, 694 S.E.2d 661 (2010).

- Defendant's claimed lack of knowledge that, pursuant to O.C.G.A. § 17-10-6.1(c)(1), the defendant would be ineligible for parole until the defendant had served 30 years, did not render the guilty plea to felony murder and other crimes involuntary, because the knowledge of parole ineligibility was a collateral consequence. Stinson v. State, 286 Ga. 499, 689 S.E.2d 323 (2010).

- In sentencing a defendant who was convicted on three counts of aggravated child molestation and nine counts of child molestation, the trial court erred as a matter of law in merging the three aggravated child molestation convictions into the child molestation convictions, thereby violating the minimum sentencing requirements under O.C.G.A. § 17-10-6.1(a). Graham v. State, 239 Ga. App. 429, 521 S.E.2d 249 (1999).

Trial court's imposition of a ten year probated sentence on a count of aggravated child molestation was null and void; O.C.G.A. § 16-6-4(d)(1) imposed a ten year minimum sentence for the offense, and under O.C.G.A. § 17-10-6.1(b), because the offense was a serious violent felony, no portion of the ten year sentence was to be probated. Priest v. State, 281 Ga. App. 89, 635 S.E.2d 377 (2006).

- There was no merit to the defendant's contention that the trial court erred in sentencing the defendant to life in prison without parole under the recidivist provisions of O.C.G.A. § 17-10-7(b)(2) since the defendant was convicted of a serious violent felony, armed robbery, and the state produced evidence that the defendant had previously been convicted in Florida of the offense of armed robbery, which, if committed in Georgia, would also have been a serious violent felony as defined in O.C.G.A. § 17-10-6.1(a). Cordy v. State, 257 Ga. App. 726, 572 S.E.2d 73 (2002).

Habeas court properly found that an inmate's prior West Virginia conviction for second-degree murder was a "serious violent felony" under O.C.G.A. § 17-10-6.1. Although the language of the West Virginia indictment, charging that the inmate did "feloniously, willfully, maliciously, deliberately and unlawfully slay, kill and murder" the victim, did not directly track the language of Georgia's murder statute, O.C.G.A. § 16-5-1, the indictment was sufficient to show that the same offense, if committed in Georgia, would be a serious violent felony. Walker v. Hale, 283 Ga. 131, 657 S.E.2d 227, cert. denied, 555 U.S. 911, 129 S. Ct. 255, 172 L. Ed. 2d 192 (2008).

- Although the evidence was sufficient to find the defendant guilty of murder beyond a reasonable doubt, because the defendant was convicted of capital murder, the defendant could not be sentenced under O.C.G.A. § 17-10-6.1(a), the recidivist statute; the illegal sentence could not be waived. Funderburk v. State, 276 Ga. 554, 580 S.E.2d 234 (2003).

- Because the defendant's questions and discovery claims were speculative, the defendant failed to show error in their exclusion or denial; however, because none of the prior offenses on which the recidivist sentencing was based was a serious violent felony as defined in O.C.G.A. § 17-10-6.1, the sentence of life imprisonment without parole for capital murder was void. Dempsey v. State, 279 Ga. 546, 615 S.E.2d 522 (2005).

Construing O.C.G.A. § 16-10-94(c), and in order to avoid rendering the terms "and involving another person" meaningless, the court had to interpret that language as imposing felony punishment when the person committed the tampering offense involving the prosecution or defense of a third person; hence, because the state did not present any allegations or evidence indicating that the defendant committed the tampering offense to prevent the apprehension or prosecution of anyone other than the defendant, the felony sentence imposed was void, and had to be vacated. English v. State, 282 Ga. App. 552, 639 S.E.2d 551 (2006).

- Because the state introduced certified copies of the defendant's prior serious violent felonies convictions, the trial court correctly imposed a sentence of life imprisonment without parole for murder under O.C.G.A. § 17-10-6.1(b). Henry v. State, 279 Ga. 615, 619 S.E.2d 609 (2005).

- Trial court properly denied a defendant's motion to remove the defendant from the sex offender registry, or in the alternative to be resentenced as a first offender, as the United States Supreme Court had already determined that retroactive registration of sex offenders was nonpunitive and did not constitute an ex post facto law, and to resentence the defendant as a first offender would be in direct contravention of the plain language of O.C.G.A. §§ 17-10-6.1 and42-1-12 since the defendant pled guilty but mentally ill to kidnaping a child under the age of 14, which was a serious violent felony. Finnicum v. State, 296 Ga. App. 86, 673 S.E.2d 604 (2009).

OPINIONS OF THE ATTORNEY GENERAL

Constitutional limitations on power to parole.

- As of January 1, 1995, there have been placed additional constitutional limitations on the power of the State Board of Pardons and Paroles to parole. The limitations include the inability to parole during the mandatory minimum sentence for the seven serious violent felonies set out in O.C.G.A. § 17-10-6.1, the inability to parole for sentences of life without parole as set out in O.C.G.A. §§ 17-10-7(b)(2) and17-10-16, and the inability to parole for felony recidivists who are convicted for a fourth or subsequent such offense. Other felons and misdemeanants are required to serve the minimum time prescribed in O.C.G.A. § 42-9-45(b), subject to the authority reserved by statute to the board in O.C.G.A. § 42-9-46 to consider for clemency upon complying with certain notice procedures. 1995 Op. Att'y Gen. No. 95-4.

RESEARCH REFERENCES

ALR.

- What constitutes "violent felony" for purpose of sentence enhancement under Armed Career Criminal Act (18 USCS § 924(e)(1)), 119 A.L.R. Fed. 319.

Construction and application of enhanced sentencing provision of Armed Career Criminal Act (ACCA), 18 U.S.C.A. § 924(e) - United States Supreme Court cases, 67 A.L.R. Fed. 2d 1.

- 16B C.J.S., Constitutional Law, §§ 1354, 1742.

24 C.J.S., Criminal Procedure and Rights of the Accused, § 2324 et seq.

27 C.J.S., District and Prosecuting Attorneys, § 50.