Criminal Law
| Publication year | 2015 |
Criminal Law
Bernadette C. Crucilla
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The dynamic nature of criminal law is a result of the ongoing struggle between those who prosecute individuals charged with crimes and those who defend them. It is, therefore, not practical to try to include every change in criminal law occurring during a particular survey period.1 I have sifted through the cases and statutory amendments from June 1, 2014 through May 31, 2015 and selected those with the widest application or interest to criminal law practitioners.
Statutory changes this survey period are illustrative of the times in which we live. These changes include our state's continued dedication to accountability courts, a relaxation of driver's license suspensions, and the creation of a number of new crimes. Each will be discussed in turn.
A. Veterans' Court
Accountability courts have existed in Georgia for several decades.2 These courts provide alternatives to incarceration by targeting specific populations and addressing those populations' underlying reasons for
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criminal activity.3 There were more than ninety such courts operating in Georgia by 2011, including felony drug courts, mental health courts, and DUI courts, and now nearly every county in Georgia boasts at least one.4 While a statute in 20055 provided the authority for the creation of drug courts, the legislature did not authorize mental health courts until 2011.6 Based upon their widespread successes, this survey period is significant for the addition of section 15-1-17 of the Official Code of Georgia Annotated (O.C.G.A.),7 which added veterans' courts to the family of accountability courts.8
The Georgia General Assembly aptly recognizes the unique "physical, emotional, or mental impairments" incurred by our service men or women that contributes to their criminal behaviors and the need to address these specialized treatment issues.9 To that end, the statute authorizes any criminal court to establish a separate veterans' court to provide alternative dispositions for veterans who meet defined eligibility criteria.10 The statute mandates the establishment of a planning group consisting of judges, prosecutors, public defenders, law enforcement officials, and others familiar with veterans' services to develop a written work plan for the implementation of the program.11 It is envisioned that, at a minimum, the veterans' courts combine "judicial supervision, treatment . . ., and drug and mental health testing as incarceration alternatives."12
Although the written work plan must include defined eligibility criteria, it has some limitations.13 For example, one limitation notes, "[d]efendants charged with murder, armed robbery, rape, aggravated sodomy, aggravated sexual battery, aggravated child molestation, or child molestation [or any combination thereof] shall not be eligible for entry" into the program "except in the case of a separate court supervised reentry program designed to more closely monitor veterans
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returning to the community after having served a term of incarceration."14 The statute further mandates successful completion of the program be defined, and after completion, that the case may be dismissed without adjudication or result in a modified sentence.15 There are provisions for confidentiality of records and expungement opportunities for successful completion of the program.16 Funding for the veterans' courts shall come from a combination of federal, state, and county funds, as well as private donations.17
B. Driver's License Suspensions
There were significant "common sense" changes made relating to driver's license suspensions and limited driving permits.18 Across the board, these changes relaxed the mandated suspension of driver's licenses as well as when limited driving permits can be obtained.19 For example, drivers under the age of twenty-one will no longer be subject to license suspension for underage possession or purchase of alcohol.20 In addition, mandatory suspension of licenses will no longer be required upon conviction for generalized "controlled substance" offenses that do not involve the operation of a motor vehicle.21 Also, those charged with driving with a suspended registration may now plead nolo contendre once every five years to avoid a license suspension.22
Drivers who have had their license suspended in another state may now obtain a Georgia limited driving permit if they can meet Georgia's criteria.23 Further, those individuals with limited driving permits may now drive for work purposes and not merely to and from work.24 All drivers (even those with suspensions for second DUI convictions) are now
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eligible for limited driving permits if they are participating in a drug, mental health, or veterans' court.25
C. New Crimes
This survey period was also significant for several new additions to Georgia's lexicon of crime. These changes exemplify how crimes tend to evolve along with societal norms.
1. Refund Fraud. Effective July 1, 2014, the General Assembly has added the crime of "refund fraud" to the books.26 This crime makes it unlawful to use a false or unauthorized name or false information to obtain a store refund.27 The refund can be in any form, such as monetary or any other type of credit.28 As with many other theft related crimes, the punishment is tied to the value of the stolen property.29 For example, if the property that is the subject of the refund is worth $500 or less, the punishment is that of a misdemeanor.30 If the property is worth more than $500, the punishment increases to felony status and the penalty is imprisonment for one to ten years.31 Punishment is also tied to the timeframe over which the crime occurs and the number of prior convictions.32
2. Murder in the Second Degree. The General Assembly established a new degree of murder this period: murder in the second degree.33 This degree of murder is similar to felony murder in that it requires proof of a predicate act (cruelty to children in the second degree).34 A person commits second degree murder if "in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice."35 Presumably,
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the death could be either the death of the child or of any other person while the defendant is committing cruelty to children in the second degree, intended or not. However, because the statute expressly provides the underlying felony must be "cruelty to children in the second degree," one cannot help but wonder whether a demurrer (or directed verdict) would lie if the underlying act is cruelty to children in the first degree.36 Unlike other forms of murder, which carry a mandatory life sentence, second degree murder carries a sentence of ten to thirty years.37
3. Home Invasion in the First and Second Degree. The General Assembly also created the new crime of home invasion (in either the first or second degree).38 This crime is a hybrid between burglary and aggravated assault with a deadly weapon.39 The elements of home invasion in the first degree are as follows: a person who, without authority and with an intent to commit a forcible felony therein, and while in possession of a deadly weapon,40 enters the dwelling house of another while such dwelling house is occupied by any person with authority to be present in the home.41 As with burglary, it appears that only the intent to commit the forcible felony must be proved, and not the actual commission thereof.42 Upon conviction, the penalty is ten to twenty years or life imprisonment, and a fine of up to $100,000.43 Presumably, if a defendant intends to commit another crime (that is not a forcible felony), then he or she would not be guilty of first degree home invasion (although he or she would certainly be facing other issues).44
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Second degree home invasion has the exact same elements as first degree, with the exception of the intent element.45 With second degree, the defendant needs to only intend to commit a forcible misdemeanor, although the conviction thereof is a felony.46 Upon conviction of second degree home invasion, the penalty is five to twenty years imprisonment and a fine of up to $100,000.47
The statute further permits the judge to sentence a defendant to all or part probation, but a wholly deferred or suspended sentence is not permitted.48 Additional statutory provisions related to this new crime make home invasion in the first degree a class A designated felony act in the juvenile code and home invasion in the second degree a class B designated felony.49 The crimes of home invasion (in any degree) have also been added to the list of crimes for which there are enhanced minimum punishments for multiple convictions if a firearm is used.50 Also, home invasion has been added to the list of crimes that are bailable only before a superior court judge.51
4. Strangulation. Strangulation has been explicitly added as one manner in which to commit an aggravated assault.52 As of July 1, 2014, one can commit an aggravated assault by using "any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation."53 The aggravated assault statute also defines "strangulation."54 The penalty for aggravated assault by strangulation remains the same as for other means of aggravated assault, one to twenty years in prison with enhanced imprisonment for specific classes of victims.55
5. Transmission of Sexually Explicit Images of Adults. It is now a crime to "post" or otherwise electronically transmit images of another
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adult that depict nudity56 for the purposes of harassment or causing financial loss to the depicted person and which serves no legitimate purpose.57 A violation of the Georgia Code section shall be punishable as a misdemeanor of a high and aggravated nature, but a second or subsequent...
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