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HB 349 Signed into Law in 2013

Posted by Sean A. Black | May 01, 2013 | 16 Comments

HB 349 makes a hodge podge of changes to the criminal laws.  First and foremost is an expansion of the state's appeal rights.

New Direct Appeal Right Granted to the State

The state will now have the right to short circuit the progress of a case to trial if the trial judge excludes any evidence from use at trial.

Previously, the state could directly appeal a judgment suppressing or excluding any evidence illegally seized or excluding the results of any test for alcohol or drugs if that ruling was made prior to the impaneling of a jury.

Now, the state can appeal any adverse evidentiary ruling.  This is a broad and sweeping right.  It can arise in a variety of situations.

  • Similar Transactions.  The state may give notice of intent to use similar transactions at trial for certain allowable purposes.  The court must conduct a hearing.  If the judge determines that the evidence will not serve that purpose or is not admissible for any other reason, the state will now be allowed to make a direct appeal.
  • Inflammatory Materials.  The defense may seek to prohibit the introduction of material which will inflame the jury but which does not have much probative value.  For instance, in a child molestation case, the state may seek to introduce pornography found in the defendant's home even if the pornography is all of adults.  This type of evidence can also include gruesome crime scene photos which for which a judge may determine them to be more prejudical than probative.
  • Demonstrative Evidence. The new law refers to evidence to be used by the state at trial and does not require that it be evidence which the state seeks to have admitted at trial.  As such, it could include posters, Powerpoint presentations, models, animations and other similar items which the State might use at trial.  The defense might seek to exclude the use of material which it considers misleading or not based on admissible evidence.  A ruling adverse to the state would give the State a right of direct appeal.

The only triggers on the right is that the ruling must be based on a motion filed at least 30 days prior to trial and ruled on prior to the impaneling of a jury.

The state must file its notice of appeal within two (2) days of the adverse ruling.

The prosecuting attorney must also certify to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding.

New Right of Cross-Appeal in Interlocutory Appeals

A party can apply for permission to file an appeal prior to the final judgment.  This is called an interlocutory appeal.  Where  a Defendant is granted the right to pursue such an appeal, the State may now cross-appeal at that time any issues that it wishes.

"Knowingly" Element Removed from Drug Trafficking Statute

Any serious criminal offense requires the convergence of an act with a criminal intent.  The levels of intent can vary.  More serious crimes usually require a higher level of intent.  In some cases, negligence is sufficient to support the charge.

For drug trafficking, Georgia law has long required that the offense to be committed "knowingly."  That word has now been stripped from OCGA 16-13-31 and 16-13-31.1.  The appellate courts had already stripped the word from its application to the quantity of the drugs involved even though the quantity was the element which subjected the person to the enhanced punishment provisions related to trafficking.

In this regard, it is worth noting that a mere 28 grams of cocaine (just short of an ounce) is enough to subject a person to trafficking charges.  That is true even if the cocaine was a mixture with only ten percent purity.

Presumably, the removal of the word does not strip the requirement of a criminal intent.  What level of intent may be an issue on account of the law change.

A package is shipped via the United States Postal Service, containing 15 small bottles of baby powder and one small bottle containing baby powder and a baggy with 28 grams of cocaine.  It is shipped from Texas to Gainesville, Georgia.  It is intercepted in Gainesville, Georgia, where its contents are discovered.  The police make a controlled delivery to the addressee who is then arrested.

Should the police then arrest the truck driver on whose truck, the package was brought into the state even though he didn't know the drugs were in the package?  Why not?  The statute only used to require that the possession or bringing into the state be done knowingly.  Doesn't the removal of the word "knowingly" mean that the legislature wanted to criminalize even unknowing possession.  The point is that the knowing element served a role in defining what the offense was.

Safety Valve Added to Trafficking Sentencing

The court may now depart from the strict sentencing provisions of the trafficking statute under certain circumstances.  In order to depart, the court must make certain findings:

  • The defendant was not a leader of the criminal conduct
  • The defendant did not possess a weapon during the crime
  • No death or serious bodily injury resulted to a person who was not a party to the crime
  • The defendant has no prior felony conviction; and
  • The interests of justice would not be served by the imposition of the prescribed minimum sentence

The range of departure is limited by the quantity of and type of drug involved in the offense.

The court's decision to depart in sentencing may be appealed by the State.

Plea Negotiation Escape Clause Added to Trafficking Sentencing

The new statute will now allow a trial judge to sentence a trafficking defendant to any sentence agreed to by the state and the defendant even if it is blow the mandatory minimum.

Overall, this is a good thing, but it will likely cause a great disparity of the disposition of cases across the state as some prosecutors will be willing to negotiate cases with compelling facts and others will use the harsh mandatory minimums to force pleas or trials.

Escape Clause Added to Mandatory Minimums for Serious Violent Felonies, Sex Offenders, and Repeat Offenders

A similar escape clause which allows the trial judge to sentence a defendant facing a mandatory minimum sentence if the state and the defendant agree to such treatment.  This escape clause has been added to the sentencing provisions for:

  • OCGA 17-10-6.1  which governs sentencing for serious violent felonies including kidnapping a victim under 14 years of age, rape, aggravated child molestation, aggravated sodomy, aggravated sexual battery.
  • OCGA 17-10-6.2 which governs sentencing for certain sexual offenses
  • OCGA 17-10-7 which governs sentencing for repeat offenders

Permanent Council on Criminal Justice Reform Created

The legislation also creates a permanent Georgia Council on Criminal Justice Reform.  The council will be charged with conducting periodic comprehensive reviews of criminal laws, criminal procedure, sentencing issues, juvenile justice issues, probation and parole issues, prison issues, and accountability courts.  The council shall establish performance measures and track the implementation of reforms.

All members of the council will be appointed by the Governor.  The membership shall be composed of:

  • one member of the Senate
  • one member of the House of Representatives
  • either a Supreme Court Justice or a Court of Appeals Judge
  • a Superior Court Judge
  • a Juvenile Court Judge
  • a District Attorney
  • a criminal defense attorney
  • a sheriff
  • the executive counsel to the Governor or his or her designee
  • the Director of the Governor's Office for Children and Faimilies and
  • five other members determined by the Governor.

Appointees will serve terms of four years or until their successor is appointed, except the General Assembly members, who serve only until the completion of their current terms of office in the legislature.

The chairperson of the council will be appointed by the Governor but he council may elect other officers as it finds necessary.

Comprehensive reviews must be conducted at least every two years.

GED HOPE Coupons Expiration Dates Extended for Prisoners

The state gives every person obtaining their GED a voucher worth $500 for use at any post-secondary school in Georgia.  Such vouchers expire 24 months after the date of the GED.  The legislature has wisely decided to allow the vouchers to be extended to twenty-four months following the release of the person from prison if they earned the GED while incarcerated.

Corrections Made to the Upcoming Records Restriction Law

A previous blog post addressed the records restriction law which will replace the expungement law in July.   A number of corrections have been made in HB 349, but those changes will be addressed by amendment to the prior blog post.

Drug/Mental Health Courts Given Fiat Over Drug Conviction License Suspensions

The presiding judge of a drug court or mental health court will now be able to order the Georgia Department of Drivers Services to issue a limited permit to an accountability court participant even if the person is otherwise ineligible due to license suspensions arising from drug convictions.  The judge will also be able to set the fees for such permit but not greater than the normal fee required for such services.

Georgia provides for driver's license suspensions for drug convictions even if the drug conviction did not involve the use of an automobile.

Probationers to Pay Costs of Drug Screening

Drug screening which has been routinely treated as part of the probation supervision fee will now be pay as you go, with the department being authorized to assess the costs of such testing against the probationer according to a schedule to be set by regulation.

Parole Board May Parole Expensive Prisoners

The legislature has authorized the Parole Board to grant medical reprieves to prisoners who are entirely incapacitated who suffer from a progressively debilitating terminal illness

Entirely incapacitated means the person requires assistance to perform two or more necessary daily life functions (eating, breathing, dressing, grooming, toileting walking or bathing) , is completely immobile.  or has such limited physical or mental ability, strength or capacity that he or she poses an extremely low risk of physical threat to others or to the community.

A progressively debilitating terminal illness means a disease that cannot be cured or adequately treated and that is reasonably expected to result in death within twelve months.

Both elements must be present to authorize a medical reprieve.

Of course, end of life care for such  a person is very expensive, and the reprieve allows such costs to be passed from the Department of Corrections to the already overburdened health care system.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.


lobo Reply

Posted Jun 11, 2015 at 08:59:06

Thanks for taking the time to provide us in search for help with updated information.I’m trying to find out how long a judge has to answer my brothers habeas ruling against an out of time claim by the DA

Sean A. Black Reply

Posted Jun 12, 2015 at 06:07:32

I am going to try to re-frame your question. Your brother filed a habeas corpus petition. The DA has moved to dismiss it based on the statute of limitations. The judge has not ruled yet. How long can the judge hold off on making his decision?

Superior Court judges are given direction by law as to the time in which they should decide issues. The number of days depends upon the population of the county where the court is located. If the population is greater than 100,000, the judge has 90 days to rule on a motion once it has been heard (or submitted if no hearing is to be held). Other courts should decide motions within 30 days. This is set out in OCGA 15-6-21. The time guidelines are not mandatory and there can be many reasons to extend the time for making a decision. Failure to make a decision within the time parameters has no effect on the individual case. Instead, failure to make timely decisions on a repeated basis can be a basis for impeaching the judge.

I strongly discourage you from confronting a judge about failure to make a decision within the time specified by statute. Such a course is likely to be counter-productive in all but the most outrageous of delays.

Vinson Reply

Posted Oct 28, 2015 at 09:40:10

My brother was sentenced in 2010 for an armed robbery to 15 yrs. No one was hurt. How can the HB 349 help him?

Sean A. Black Reply

Posted Oct 28, 2015 at 09:51:08

I can’t tell you that it does help him. HB 349 made very few changes to parole. None seem applicable to your brother’s case. The changes to sentencing are also not as to cases involving an armed robbery.

JW Reply

Posted Jan 29, 2016 at 09:56:43

My son was charged with armed robbery, the case was declared a mistrial due to what the judge termed jury and bailiff misconduct. Our attorney found out that the case was hung which I believe the judge and DA found out about and now want to try my son again, dropping the armed robbery and charging him with robbery. Does HB 349 give us any leverage if we appeal the decision to re-try his case

Sean A. Black Reply

Posted Feb 15, 2016 at 06:20:09

HB 349 does not have any specific effect on the fact pattern you describe.

The issue on challenging further prosecution is whether under “double jeopardy” law the declaration of the mistrial was necessary and was over your son’s attorney’s objection.

Jessie Sr. Reply

Posted Mar 10, 2019 at 14:35:02

Mr. Black my son was sentenced to life without parole for a 1997 armed robbery in Warner Robins,Ga. He never had a armed robbery charge or any type of violent crime but was sentenced as a recidivist for having 3 prior felony’s. .. At his sentencing hearing judge the Houston county District Attorney asked Judge George F. Nunn to sentence him to the maximum without parole under the four felony recidivist statute. Judge Nunn stated he would have to see where the law stated he had to sentence my son to life without parole. After reading the law and it stating my son had to be sentenced to life without parole Judge Nunn proceeded to render the life without parole sentence. My point is had Georgia house bill 349 been in affect in 1997 JUdge Nunn could have sentenced my son to a far lesser sentence. Also no one was hurt in the robbery, his co-defendant only got 10 years . Also my sons prior felonies was for burglary, entering and Auto Criminal Damage to property and Forgery 2nd Degree. .. Is there anyway that House bill 349 can help get my son resentenced.. Also the case of Christopher Williams sentence was overturned and he was convicted 2 timis for armed robbery and was released last year after the Court said his outcome would have been different if house bill 349 existed when he was convicted and sentenced 19 years ago. … They also said his situation was extraordinary because during the second robbery he wasn’t armed and that his co-defendant only got 10 years but was the aggressor while Mr . Williams was just the lookout. .. My son situation is just as extraordinary because he never ever had a violent crime and never went to prison for robbery before… Any information would be helpful and we appreciated. My son has been in prison 21 straight years now and deserves a second chance. ..

Sean A. Black Reply

Posted Mar 11, 2019 at 06:04:40

I am not sure that you are right that the change in the law would have made a difference. The bill that you reference added an escape clause for a first serious violent felony where the prosecution and the defense agreed to a downward departure. That was codified in OCGA 17-10-6.1.

In your son’s case, you describe that the prosecution was seeking an enhanced sentence based on his status as a recidivist. That is a different statute and imposes a different set of sentencing issues.

However, if the prosecutor in your son’s case was seeking not just a regular sentence but an enhanced sentence, I do not believe that same prosecutor would have agreed to a departure for a sentence below the mandatory minimum sentence.

Rachell s Reply

Posted Feb 28, 2020 at 10:33:01

Hello mr Black

My loved one was sentenced under the recidivist law 2003 for life without parole in Gwinnett county.He had a previous armed robbery which is why he was sentenced under the recidivist. In both cases no one was ever hurt . Now 17 years he has been sitting in jail . With this house bill 349 and the new Georgia reform laws pertaining to armed robbery which is now 20 year sentencing is there any way for him to request new plea of guilty to be re sentenced under the new Georgia sentencing laws

Sean A. Black Reply

Posted Mar 04, 2020 at 09:05:24

I do not think that HB 349 would change your loved one’s situation.

With the amount of time that passed, I do not have anything to offer to improve his situation. Unless the legislature makes the changes in the laws necessary to allow parole in these cases or other sentence reductions, then he will sit for the full amount of his sentence.

Dayvon grant Reply

Posted Dec 13, 2020 at 01:02:52

Good evening Mr.Black, I have a brother who at the time of his offenses was 17 yrs old and a first offender. In aug 2012 he was charged with three counts of armed Robbery and sentenced to three consecutive life sentences in sept 2013. No one was injured and the robberies lasted no longer then 60 seconds. I guess what I’m asking is how is the house bill 349 applied? And is it ah essential tool my brother can use on his appeal?

Sean A. Black Reply

Posted Dec 14, 2020 at 05:45:40

Since there does not seem to have been any agreement between the prosecutor and the defense for a sentence below the mandatory minimum, I do not see that HB 349 applies at all.

Cheryl Owens Reply

Posted Feb 15, 2021 at 17:02:28

Dear Mr black

I want to first thank you for this article and taking the time out to read this message. My son went to trial on a trafficking in cocaine charge in 2017. He never knew anything about lesser included offenses until the conclusion of trial durring jury instructions. As a result of the lesser included offenses he was subsequently found guilty of the lesser included offense of possession with the intent to distribute cocaine. The judge sentenced him to a 30 serve 20. He meets all the criteria for house bill 349. Is there anyway he could take advantage of this now?

Sean A. Black Reply

Posted Feb 16, 2021 at 06:10:38

HB 349 was already in effect when your son faced his charge. I don’t really se that it does much for him.

The issue for him is likely to be parole. A good parole lawyer and some direction into treatment programs and good behavior can go a long way to shortening his stay. However, the Board is still likely to take the quantity and the underlying charge into account in making that determination.

Of course, if there were errors or problems with the charging, trial, or sentencing, that could be an appeal or habeas issue.

Rick Owens Reply

Posted May 18, 2023 at 04:27:17

Hello Mr Black

My son was a first time offender and was charged as a lookout and get away driver in 2 armed robberys. all he did was sit in the car he never went into any of the stores, pointed a gun at anyone or demand any money. he was solely a get away driver. nobody was killed or hurt in these armed robberys. They lasted about 60 seconds. he was 19 at the time the crime occurred. On Sept 2013 he was convicted and received a life plus 20 year sentence everything was ran concurrent. We are currently working on getting him re sentenced can he use HB 349 and if so if the DA and the Defense lawyer agree to sentence him under HB 349 Do The judge have to agree to it as well?

Sean A. Black Reply

Posted May 18, 2023 at 06:21:24

The safety valve you are reading about was codified in OCGA 17-10-6.1(e). It allowed the judge to exercise his discretion to depart from the mandatory minimum sentence when the prosecuting attorney and defendant were in agreement to a sentence below the mandatory minimum. From your description, there was no such agreement and the prosecuting attorney pushed for a harsh sentence.

In Georgia, being a party to the crime (what some states call aiding and abetting) is considered to be the same as committing the crime itself. So, being a getaway driver does not reduce his criminal responsibility under Georgia law. And in the absence of some semblance of mercy from the prosecutor (not the judge), a getaway driver for an armed robbery is subject to the same harsh sentencing and denial of parole rules as the offenders who used weapons to rob others.

There is no question in my mind that imprisoning a person with no hope of lenience or release for decades in a case where no one was injured or killed is barbaric, but the Georgia legislature does not share my view.

There is no legal mechanism at this time for modification of the sentence you describe based on the amount of time that has passed.

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