2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 11 - Offenses Against Public Order and Safety
Article 4 - Dangerous Instrumentalities and Practices
Part 3 - Carrying and Possession of Firearms
§ 16-11-133. Minimum Periods of Confinement for Persons Convicted Who Have Prior Convictions

1. As used in this Code section, the term:
   1. "Felony" means any offense punishable by imprisonment for a term of one year or more and includes conviction by a court-martial under the Uniform Code of Military Justice for an offense which would constitute a felony under the laws of the United States.
   2. "Firearm" includes any handgun, rifle, shotgun, stun gun, taser, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.
2. Any person who has previously been convicted of or who has previously entered a guilty plea to the offense of murder, murder in the second degree, armed robbery, home invasion in any degree, kidnapping, rape, aggravated child molestation, aggravated sodomy, aggravated sexual battery, or any felony involving the use or possession of a firearm and who shall have on or within arm's reach of his or her person a firearm during the commission of, or the attempt to commit:
   1. Any crime against or involving the person of another;
   2. The unlawful entry into a building or vehicle;
   3. A theft from a building or theft of a vehicle;
   4. Any crime involving the possession, manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any controlled substance as provided in Code Section 16-13-30; or
   5. Any crime involving the trafficking of cocaine, marijuana, or illegal drugs as provided in Code Section 16-13-31,

      and which crime is a felony, commits a felony and, upon conviction thereof, shall be punished by confinement for a period of 15 years, such sentence to run consecutively to any other sentence which the person has received.

3. Upon the second or subsequent conviction of a convicted felon under this Code section, such convicted felon shall be punished by confinement for life. Notwithstanding any other law to the contrary, the sentence of any convicted felon which is imposed for violating this Code section a second or subsequent time shall not be suspended by the court and probationary sentence imposed in lieu thereof.
4. Any crime committed in violation of subsections (b) and (c) of this Code section shall be considered a separate offense.

(Code 1981, §16-11-133, enacted by Ga. L. 1995, p. 137, § 1; Ga. L. 2014, p. 426, § 5/HB 770; Ga. L. 2014, p. 444, § 2-6/HB 271.)

- For notes on the 1995 enactment of this Code section and § 16-11-134, see 12 Ga. St. U.L. Rev. 112 and 118 (1995).

JUDICIAL DECISIONS

Sufficient evidence of defendant's prior felony conviction.

- In a prosecution for the use of a firearm by a convicted felon, evidence that a South Carolina court gave the defendant a two-year sentence, with credit for time served, one year of probation to follow, and the balance suspended was sufficient to prove that the defendant had been convicted of a felony; a "felony" for purposes of O.C.G.A. § 16-11-133(a)(1) was any offense punishable by imprisonment for a term of one year or more. Verdree v. State, 299 Ga. App. 673, 683 S.E.2d 632 (2009).

- Trial court erred in convicting the defendant of possession of a firearm by a convicted felon in violation of O.C.G.A. § 16-11-133 because the evidence was insufficient to show that the defendant had been convicted of a prior felony; the state's exhibit showed that a "Derrick Beck" had been convicted of armed robbery, but nothing was presented to the jury to establish that Derrick Beck was the defendant. Mubarak v. State, 305 Ga. App. 419, 699 S.E.2d 788 (2010).

Defendant's sentence, as a recidivist, of concurrent 20 year terms on each of three counts of aggravated assault, concurrently five years terms on each of three counts of possession of a firearm during the commission of a crime, to run consecutively to the aggravated assault sentence, and concurrent 15 year terms on each of two counts of possession of a firearm by a convicted felon, to run consecutive to the aggravated assault sentence, was not cruel, inhumane, and unusual punishment because each sentence was within the statutory limits of the crimes charge, and the sentence was not grossly disproportionate to the underlying crimes. Willis v. State, 316 Ga. App. 258, 728 S.E.2d 857 (2012).

Evidence was insufficient to support the defendant's conviction of possession of a firearm by a convicted felon during the commission of another felony because the stipulation concerning the prior conviction did not state that the aggravated assault involved the use of a firearm and the title of the crime, aggravated assault with intent to rob, did not suggest the use of a firearm. Brooks v. State, 309 Ga. 630, 847 S.E.2d 555 (2020).

- Trial court erred in failing to merge, for purposes of sentencing, the defendant's convictions for possession of a firearm during the commission of a crime and possession of a firearm by a convicted felon with use of a firearm by a convicted felon during the commission of another felony, because the same act was used to establish each of the offenses and each crime did not require proof of a fact not required by the other. Jones v. State, 318 Ga. App. 105, 733 S.E.2d 407 (2012).

Cited in Lawton v. State, 281 Ga. 459, 640 S.E.2d 14 (2007); Marshall v. State, 309 Ga. 698, 848 S.E.2d 389 (2020).