2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 5 - Arraignment and Pleas Generally
§ 17-7-95. Plea of Nolo Contendere in Noncapital Felony Cases; Imposition of Sentence; Use of Plea in Other Proceedings; Use of Plea to Effect Civil Disqualifications; Imposition of Sentence Upon Plea Deemed Jeopardy

1. The defendant in all criminal cases other than capital felonies in any court of this state, whether the offense charged is a felony or a misdemeanor, may, with the consent and approval of the judge of the court, enter a plea of nolo contendere instead of a plea of guilty or not guilty.
2. Should the judge allow a plea of nolo contendere to be entered, he shall thereupon be authorized to impose such sentence as may be authorized by law as to the offense charged.
3. Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose; and the plea shall not be deemed a plea of guilty for the purpose of effecting any civil disqualification of the defendant to hold public office, to vote, to serve upon any jury, or any other civil disqualification imposed upon a person convicted of any offense under the laws of this state. The plea shall be deemed and held to put the defendant in jeopardy within the meaning of Article I, Section I, Paragraph XVIII of the Constitution of this state after sentence has been imposed.

(Ga. L. 1946, p. 142, §§ 1-3; Ga. L. 1982, p. 3, § 17; Ga. L. 1983, p. 3, § 51.)

- Record of proceedings, Uniform State Court Rules, Rule 33.11.

- Plea nolo contendere, Federal Rules of Criminal Procedure, Rule 11(b).

- For article surveying the law in Georgia on admissions, see 8 Mercer L. Rev. 252 (1957). For article, "The Effect in Georgia of a Plea of Nolo Contendere Entered in a Georgia Court," see 13 Ga. L. Rev. 723 (1979). For survey article on recent developments in Georgia administrative law, see 34 Mercer L. Rev. 393 (1982). For annual survey of evidence law, see 56 Mercer L. Rev. 235 (2004). For article, "The Misunderstood Alford Plea: A Primer," see 19 Ga. St. B.J. 8 (Aug. 2013).

JUDICIAL DECISIONS

Purpose of plea of nolo contendere.

- O.C.G.A. § 17-7-95 was designed to prevent the state from introducing a nolo contendere plea as evidence of a prior similar crime. Corbitt v. State, 190 Ga. App. 509, 379 S.E.2d 535 (1989).

- Privilege of entering a plea of nolo contendere is statutory in origin, and it was designed to cover situations when the side effects of a plea of guilty, in addition to the penalties provided by law, would be too harsh. Fortson v. Hopper, 242 Ga. 81, 247 S.E.2d 875 (1978).

- General Assembly intended for the plea of nolo contendere to stand upon the same footing as a plea of guilty in all respects, except when otherwise specially provided, to constitute the remedy of the evil of the old law when only a plea of guilty or not guilty was available, and intended that the right to withdraw the plea be accorded any time before pronouncement of judgment, as provided in former Code 1933, § 27-1404 (see O.C.G.A. § 17-7-93), as to a plea of guilty. Wright v. State, 75 Ga. App. 764, 44 S.E.2d 569 (1947).

- Prior to Ga. L. 1946, p. 142, no such procedure was embraced in the law, although pleas of nolo contendere had been in use in the federal district courts. Nelson v. State, 87 Ga. App. 644, 75 S.E.2d 39 (1953).

- Words "except as otherwise provided by law" in O.C.G.A. § 17-7-95(c) apply to except both state laws and local ordinances dealing with professional licensing from the provisions limiting the use of a nolo contendere plea; thus, a taxi driver's license could be revoked based on the driver's plea of nolo contendere to a charge of driving under the influence brought under city ordinances. City of Atlanta v. Okonkwo, 216 Ga. App. 821, 456 S.E.2d 58 (1995).

Construction with § 40-5-58. - Effect of O.C.G.A. § 40-5-58(d) is to create an exception to the rule of O.C.G.A. § 17-7-95 concerning the consequences of a plea of nolo contendere. O.C.G.A. § 40-5-58(d) does not run afoul of the prohibition in Ga. Const. 1976, Art. III, Sec. VII, Para. IV (Ga. Const. 1983, Art. III, Sec. V, Para. III) against the passage of laws referring to more than one subject matter or containing matter different from what is expressed in the title. Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982).

O.C.G.A. § 40-5-58(d) does not constitute an amendment to or repeal of O.C.G.A. § 17-7-95 within the meaning of Ga. Const. 1976, Art. III, Sec. VII, Para. XII (Ga. Const. 1983, Art. III, Sec. V, Para. IV). Smith v. State, 248 Ga. 828, 286 S.E.2d 709 (1982).

Construction with § 40-5-63. - Ga. L. 1946, p. 142, §§ 1-3 (see O.C.G.A. § 17-7-95) refers generally to the effects of pleas of nolo contendere as compared with pleas of guilty and makes no reference to the suspension of licenses. Since former Code 1933, § 6813-312 (see O.C.G.A. § 40-5-63(a)(2)) referred not to crimes generally, but only to the specific offenses of driving under the influence of alcohol or drugs, the two statutes have concurrent efficacy. Howe v. Cofer, 144 Ga. App. 589, 241 S.E.2d 472 (1978).

- Plea of nolo contendere is defined as an assertion by the defendant that the defendant does not desire to contest the truth of the charges against the defendant. Thus, it is not a plea of not guilty, nor is it a plea of guilty. Rather, it lies approximately midway between the two extremes. Fortson v. Hopper, 242 Ga. 81, 247 S.E.2d 875 (1978).

Plea of nolo contendere constitutes a plea of guilty except that the plea cannot work any civil disqualification on the defendant. Fortson v. Hopper, 242 Ga. 81, 247 S.E.2d 875 (1978).

- Because the conditional plea procedures established in Mims v. State, 201 Ga. App. 277, 410 S.E.2d 824, (1991), are disapproved, pleas in which the accused attempts to condition upon the preservation of the rights to raise non-jurisdictional errors by the trial court will not be considered by the appeals court. Hooten v. State, 212 Ga. App. 770, 442 S.E.2d 836 (1994).

- Subject to the approval and consent of the judge of the court, a plea of nolo contendere may be entered in any criminal case in any court of the state, except in capital felony cases. Fortson v. Hopper, 242 Ga. 81, 247 S.E.2d 875 (1978).

- Despite the prohibition in O.C.G.A. § 17-7-95(c) of the admission of a nolo contendere plea as evidence of a prior similar crime, given that evidence of five other similar drug transactions was properly submitted to the jury, the defendant's plea was admissible as not having contributed to the judgment of conviction. Parrott v. State, 206 Ga. App. 829, 427 S.E.2d 276 (1993).

Entering a plea of nolo contendere is a privilege rather than a right. Fortson v. Hopper, 242 Ga. 81, 247 S.E.2d 875 (1978).

- Privilege of a defendant to enter a plea of nolo contendere is within the discretion of the trial court. Bennett v. State, 153 Ga. App. 21, 264 S.E.2d 516 (1980).

- Trial court's refusal to consider the defendant's petition to enter a plea of nolo contendere based on a blanket policy foreclosing any consideration of the propriety of the plea in all cases was an abdication by the court of the court's judicial responsibility. Furthermore, if the right to tender a petition to enter a plea of nolo contendere is to be preserved on appeal, the record must reflect an objection and ruling thereon to avoid waiver. Vanegas v. State, 249 Ga. App. 76, 547 S.E.2d 718 (2001).

- While it is unquestioned that a guilty plea or a nolo contendere plea must be knowingly and voluntarily made after proper advice and with a full understanding of the consequences, the trial court is not required to inform a defendant of all the possible collateral consequences of the defendant's plea including those at the hands of a different sovereign. Davis v. State, 151 Ga. App. 736, 261 S.E.2d 468 (1979).

- Defendant's daughter's recantation of the accusations made against the defendant could not serve as a basis for a claim that there was clear and convincing proof of the defendant's innocence at the time the court accepted an Alford plea as such was known to the defendant before the guilty plea was entered. Schlau v. State, 282 Ga. App. 460, 638 S.E.2d 895 (2006), cert. denied, No. S07C0424, 2007 Ga. LEXIS 147 (Ga. 2007).

- In a child custody modification pursuant to O.C.G.A. § 19-9-3(a)(2), the trial court erred in considering evidence of the father's nolo contendere plea of family violence battery against the child; the plea was not admissible pursuant to O.C.G.A. § 17-7-95(c), and the conduct reflected in the plea occurred prior to the parties' most recent custody order. Wilson v. Perkins, 344 Ga. App. 869, 811 S.E.2d 518 (2018).

- Person cannot avoid the legal consequences of a plea even if based on good faith reliance on the advice of counsel. Davis v. State, 151 Ga. App. 736, 261 S.E.2d 468 (1979).

Defendant who has entered a plea of nolo contendere may withdraw the plea after an oral announcement of sentence but before sentence is properly pronounced, i.e., in writing as a matter of right. Wright v. State, 75 Ga. App. 764, 44 S.E.2d 569 (1947).

- When the judge accepts the plea of nolo contendere, the judge is empowered to impose whatever sentence is provided by law for the crime, just as if the defendant has been convicted by a jury or entered a plea of guilty. Fortson v. Hopper, 242 Ga. 81, 247 S.E.2d 875 (1978).

Civil disqualification may be made a condition of a suspended sentence under a plea of nolo contendere. Falkenhainer v. State, 122 Ga. App. 478, 177 S.E.2d 380 (1970).

- See Fortson v. Hopper, 242 Ga. 81, 247 S.E.2d 875 (1978).

- When a case belongs to the class of cases, such as possession of liquor on which taxes have not been paid, when the state by the generality of the indictment need not be confined to proof of any specific date or transaction within the period of limitation, the result is that a plea of nolo contendere for a prior particular crime will usually operate as a bar for any such offense committed within the period of limitation previously to the second indictment, since to hold otherwise would twice place the defendant in jeopardy. Key v. State, 83 Ga. App. 839, 65 S.E.2d 278 (1951).

- Sentencing judge did not err in vacating and setting aside allowance of change of plea of guilty and acceptance of a nolo contendere plea by judge acting in judge's absence and in reinstating plea of guilty. Hall v. State, 163 Ga. App. 59, 293 S.E.2d 874 (1982).

- When defendant pled nolo contendere in Florida to a felony, which was a felony under Georgia law, the defendant was exempted from disqualification to hold public office by O.C.G.A. § 17-7-95(c) as the nolo plea could not be deemed a guilty plea for the purposes of effecting a civil disqualification of defendant to hold public office. Hardin v. Brookins, 275 Ga. 477, 569 S.E.2d 511 (2002).

In a case in which the defendant appealed a conviction for false swearing, in violation of O.C.G.A. § 16-10-71(a), challenging the sufficiency of the evidence, the state failed to prove that the defendant had the requisite criminal intent to support the conviction when the defendant signed a declarations of candidacy for county commissioner as set forth in O.C.G.A. §§ 21-2-132 and21-2-153. Pursuant to O.C.G.A. § 17-7-95(c), a judgment imposing a sentence following a plea of nolo contendere was considered a conviction for some purposes; however, such a conviction did not disqualify the defendant from holding public office or otherwise deprive the defendant of any civil or political rights, and there was no evidence that the defendant intended to deceive the election board or the voters as the defendant believed that the 1986 nolo contendere conviction to a charge of aggravated assault was generally known in the county. Spillers v. State, 299 Ga. App. 854, 683 S.E.2d 903 (2009).

Judge who enters plea of nolo contendere to crime involving moral turpitude is guilty of conduct which brings the judicial office into disrepute. This is so even though the question of guilt is not formally adjudicated by such a plea. In re Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982).

- Consideration by the Judicial Qualifications Commission of a judge's nolo contendere plea to a felony involving moral turpitude, pursuant to Ga. Const. 1976, Art. VI, Sec. XIII, Para. III (Ga. Const. 1983, Art. VI, Sec. VII, Para. VII), is not a denial of equal protection and due process to the defendant under either state or federal Constitutions. In re Judge No. 491, 249 Ga. 30, 287 S.E.2d 2 (1982).

- Trial court, in an action for conversion, was authorized to admit a properly certified copy of the plaintiff's shoplifting conviction on a plea of nolo contendere for consideration by the jury as impeachment evidence, subject to the plaintiff's right to explain the circumstances surrounding the conviction. Tilley v. Page, 181 Ga. App. 98, 351 S.E.2d 464 (1986).

On appeal from a conviction for driving under the influence of alcohol, the state's use of a previous conviction entered on a nolo contendere plea entitled the appellant to a new trial because the nolo contendere plea was not admissible for impeachment under previous exceptions provided by law. Rocco v. State, 191 Ga. App. 655, 382 S.E.2d 391 (1989).

It would violate rules of evidentiary law, and contravene the purpose of O.C.G.A. § 17-7-95(c), to allow the prosecution to elicit testimony from a criminal defendant on cross-examination and then impeach such testimony through use of a prior criminal conviction entered on a plea of nolo contendere. State v. Rocco, 259 Ga. 463, 384 S.E.2d 183 (1989); Waters v. State, 210 Ga. App. 305, 436 S.E.2d 44 (1993).

State may use the conviction of the defendant entered on a nolo contendere plea to disprove the testimony of a defense witness that no charges had been brought against the defendant as a result of the crime which was the subject of the plea. In such case, it is the fact that the nolo contendere plea had been entered, and not the defendant's guilt of the crime charged, that is used to impeach the witness' testimony. State v. Rocco, 259 Ga. 463, 384 S.E.2d 183 (1989).

Simple battery, a misdemeanor, has been recognized to be a crime not involving moral turpitude, and a plea of nolo contendere to a charge of simple battery is admissible for impeachment of the defendant in the subsequent trial of the civil suit stemming from the battery. Jabaley v. Mitchell, 201 Ga. App. 477, 411 S.E.2d 545 (1991).

Trial court properly did not permit the defendant to impeach a crime scene investigator's testimony by inquiring into the fact that the officer pled nolo contendere to a misdemeanor criminal trespass charge because: (1) defense counsel failed to lay a proper ground for the conviction's admission as no certified copy of a conviction was tendered; (2) criminal trespass is a misdemeanor and not a crime of moral turpitude; as such, it cannot be used for impeachment purposes; and (3) a plea of nolo contendere cannot be used against a defendant in any other court as an admission of guilt or for any purpose. Armour v. State, 265 Ga. App. 569, 594 S.E.2d 765 (2004).

Allowing the use of a plea of nolo contendere for impeachment purposes is in direct conflict with O.C.G.A. § 17-7-95(c). Pitmon v. State, 265 Ga. App. 655, 595 S.E.2d 360 (2004).

Defendant was properly prevented from impeaching the credibility of the victim's friend as a witness based on the witness's nolo contendere plea to misdemeanor shoplifting because when the legislature enacted O.C.G.A. § 17-7-95(c), which prohibited the use of such a plea in any other court for any purpose, the statute did not carve out an exception for impeachment. Hooper v. State, 284 Ga. 824, 672 S.E.2d 638 (2009).

- Trial court erred in considering the defendant's nolo contendere plea as proof of a prior conviction under the recidivist statute because the plain language of O.C.G.A. §§ 17-7-95 and17-10-7(c) indicated that such a plea could not be used against the defendant in sentencing the defendant as a recidivist. Miller v. State, 353 Ga. App. 518, 838 S.E.2d 602 (2020).

- State may use as a similar transaction, evidence of an independent crime committed by the accused that resulted in a plea of nolo contendere, provided that no evidence of the actual nolo plea is introduced. Proulx v. State, 196 Ga. App. 303, 395 S.E.2d 668 (1990); Hansen v. State, 205 Ga. App. 604, 423 S.E.2d 273, cert. denied, 205 Ga. App. 900, 423 S.E.2d 273 (1992).

Evidence of a prior driving under the influence offense that culminated in a plea of nolo contendere was not rendered inadmissible under O.C.G.A. § 17-7-95(c) because the state made no reference to the plea in presenting evidence of the offense as a similar transaction. Harris v. State, 210 Ga. App. 366, 436 S.E.2d 231 (1993).

Trial court did not err in admitting into evidence a no contest plea and in "making reference" to the plea with regard to the similar transaction evidence as the defendant's failure to object to the introduction of the evidence precluded review of the issue on appeal; further, the plea was admissible to show a conviction for purposes of the defendant's alleged failure to register as a sex offender under former O.C.G.A. § 42-1-12 and the jury was permitted to consider the plea as similar transaction evidence. Bryson v. State, 282 Ga. App. 36, 638 S.E.2d 181 (2006).

- Pretermitting whether the second defendant showed that the admission of the evidence of the second defendant's no contest plea to disrupting a public school and affray was obviously erroneous, the second defendant did not even allege that the outcome of the trial was likely affected by its admission, especially considering that other, independent evidence was presented that the second defendant was involved in fighting at the second defendant's public school. Anthony v. State, 303 Ga. 399, 811 S.E.2d 399 (2018).

- Under the plain and unambiguous language of O.C.G.A. § 17-7-95(c), a nolo contendere plea cannot be used to establish a probation violation. Bolden v. State, 275 Ga. 180, 563 S.E.2d 858 (2002).

- Defendant's plea of guilty under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), was not a plea of nolo contendere because the plea required a court determination that there was a factual basis therefor and such plea could be used as evidence of a similar act. Dixon v. State, 240 Ga. App. 644, 524 S.E.2d 734 (1999).

- Defendant's claim that the defendant was improperly sentenced on additional counts because those counts were to be dismissed as part of a negotiated plea was disingenuous. While defendant initially entered an Alford plea to two counts in exchange for the state's agreement to drop the other charges, it was clear that the defendant changed the defendant's mind; while looking for the original indictment at trial, the parties mentioned that the last time the parties saw the indictment was when the defendant entered the plea, and no one said that the defendant wanted to continue with that plea, and the defendant admitted at the first hearing on the defendant's motion for a new trial that the defendant withdrew the guilty plea. Ellis v. State, 282 Ga. App. 17, 637 S.E.2d 729 (2006), cert. denied, No. S07C0324, 2007 Ga. LEXIS 66 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

- Because defense counsel could not have been held to a duty to anticipate changes in the law regarding the use of a nolo plea to impeach a witness, the defendant's allegations of ineffective assistance of counsel lacked merit. Martin v. State, 281 Ga. 778, 642 S.E.2d 837 (2007).

- O.C.G.A. § 17-7-95 prohibits use of a prior plea of nolo contendere as evidence relevant to the issue of punitive damages. Holt v. Grinnell, 212 Ga. App. 520, 441 S.E.2d 874 (1994).

In an action for injuries arising from an automobile accident, after the defendant pled guilty to driving under the influence of alcohol, evidence that the defendant twice previously committed the offense of DUI was admissible for the purpose of determining punitive damages as long as there was no reference to prior pleas of nolo contendere, or to the disposition of DUI charges resulting from such pleas. Holt v. Grinnell, 212 Ga. App. 520, 441 S.E.2d 874 (1994).

Cited in Smith v. State, 76 Ga. App. 847, 47 S.E.2d 518 (1948); Connelly v. State, 128 Ga. App. 265, 196 S.E.2d 411 (1973); Cook v. State, 242 Ga. 657, 251 S.E.2d 230 (1978); Beal v. Braunecker, 185 Ga. App. 429, 364 S.E.2d 308 (1987).

OPINIONS OF THE ATTORNEY GENERAL

Plea does not forfeit qualification for license to carry a pistol.

- Plea of nolo contendere to a felony is not deemed a plea of guilty to the felony so as to prevent the individual from qualifying for a license to carry a pistol. 1974 Op. Att'y Gen. No. U74-67.

- Plea of nolo contendere in a misdemeanor crime of domestic violence does not take away the right to possess a firearm under the Gun Control Act of 1968, 18 U.S.C. § 921 et seq. 1998 Op. Att'y Gen. No. 98-2.

- Since a plea of nolo contendere may not be raised in another proceeding as a basis for any civil disqualification, the Board of Regents of the University System of Georgia is not legally prohibited by the plea from appointing an individual to a teaching position. 1963-65 Op. Att'y Gen. p. 566.

Conviction resulting from a nolo contendere plea cannot be used to impose any disability including disqualification from voting, holding public office, and jury service. 1983 Op. Att'y Gen. No. 83-33.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 640 et seq., 649 et seq.

- 16B C.J.S., Constitutional Law, § 1350. 22 C.J.S., Criminal Procedure and Rights of the Accused, §§ 237 et seq., 252. 23 C.J.S., Criminal Procedure and Rights of the Accused, § 1241. 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2298.

- Plea of nolo contendere or nonvult contendere, 152 A.L.R. 253; 89 A.L.R.2d 540.

Duty of court, upon plea of guilty or nolo contendere to offense involving several degrees, to hear evidence to determine degree, 34 A.L.R.2d 919.

Plea of nolo contendere or non vult contendere, 89 A.L.R.2d 540.

Defendant's appeal from plea conviction as affected by prosecutor's failure or refusal to dismiss other pending charges, pursuant to plea agreement, until expiration of time for appeal, 86 A.L.R.3d 1262.

Adequacy of defense counsel's representation of criminal client regarding guilty pleas, 10 A.L.R.4th 8.

What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for, removal from, or vacancy in, public office, 11 A.L.R.5th 52.