Bill Text: GA HB1168 | 2011-2012 | Regular Session | Introduced
Bill Title: Death penalty; repeal in this state
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2012-02-28 - House Second Readers [HB1168 Detail]
Download: Georgia-2011-HB1168-Introduced.html
12 LC
21 1716
House
Bill 1168
By:
Representatives Brooks of the
63rd,
Williams of the
165th,
Beasley-Teague of the
65th,
Scott of the
76th,
Stephenson of the
92nd,
and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend the Official Code of Georgia Annotated so as to make legislative findings;
to repeal the imposition of the death penalty in this state; to repeal
references to procedures related to capital cases; to provide for matters
relative to the foregoing; to provide for applicability; to provide effective
dates; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
General Assembly makes the following legislative findings:
(1)
The imposition of the death sentence has become increasingly problematic as more
persons convicted of serious crimes are being found innocent by new evidence,
often years or decades after their sentence was imposed, and it is impossible to
believe that such errors are limited to noncapital offenses;
(2)
As a largely pro-life state, Georgia recognizes the sanctity of human life up to
the time of a natural death;
(3)
Even those who might relish the death of a human being convicted of a serious
crime must cringe at the possibility of the state executing an innocent
person;
(4)
Given the natural and healthy distrust many people have for their governmental
institutions, it stretches the imagination that anyone would attribute
infallibility to the legal system which, after all, is a very human
institution;
(5)
Participation in the executions of persons imposes a heavy emotional burden on
those public employees who are required by the duties of their position to
assist in the procedure, as well as persons more remote from the act, including
judicial officers and jurors;
(6)
The long and inevitable delays in such cases deny the families of crime victims
of the closure a swift sentence of life without hope of parole would
bring;
(7)
In addition to the moral issue, the hard economic fact is that this state and
its political subdivisions can no longer bear the heavy financial burden
inextricably tied to the imposition of capital punishment; and
(8)
For the foregoing reasons, the General Assembly deems it a moral and fiscal
imperative to repeal capital punishment in this state.
SECTION
2.
Article
1 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating
to procedure for sentencing and imposition of punishment, is amended by adding a
new Code section to read as follows:
"17-10-0.1.
Notwithstanding
any other provision of law to the contrary, on and after the effective date of
this Code section, the imposition of capital punishment is prohibited in this
state. The sentence of any person under sentence of death on the effective date
of this Code section shall be commuted to a sentence of life without
parole."
SECTION
3.
Title
5 of the Official Code of Georgia Annotated, relating to appeal and error, is
amended by revising Code Section 5-5-40, relating to time of motion for new
trial generally, amendments, extension of time for filing transcript, time of
hearing, priority to cases in which death penalty imposed, appeal not limited to
grounds urged, and new trial on court's own motion, as follows:
"5-5-40.
(a)
All motions for new trial, except in extraordinary cases, shall be made within
30 days of the entry of the judgment on the verdict or entry of the judgment
where the case was tried without a jury.
(b)
The motion may be amended any time on or before the ruling thereon.
(c)
Where the grounds of the motion require consideration of the transcript of
evidence or proceedings, the court may in its discretion grant an extension of
time,
except in cases where the death penalty is
imposed, for the preparation and filing of
the transcript, which may be done any time on or before the hearing; or the
court may in its discretion hear and determine the motion before the transcript
of evidence and proceedings is prepared and filed.
(d)
The grounds of the motion need not be approved by the court.
(e)
The motion may be heard at any time; but, where it is not heard at the time
specified in the order, it shall stand for hearing at such time as the court by
order at any time may prescribe, unless sooner disposed of.
(f)
Motions for
new trial in cases in which the death penalty is imposed shall be given
priority.
(g)
On appeal, a party shall not be limited to the grounds urged in the motion or
any amendment thereof.
(h)(g)
The court also shall be empowered to grant a new trial on its own motion within
30 days from entry of the judgment, except in criminal cases where the defendant
was acquitted."
SECTION
4.
Said
title is further amended by revising Code Section 5-6-11, relating to issuance
of remittitur in cases involving death penalty, as follows:
"5-6-11.
In
all cases where the Supreme Court of Georgia has affirmed the imposition of the
death penalty in a case or has affirmed the denial of a petition for a writ of
habeas corpus in any case in which the death penalty has been imposed, the
remittitur shall not issue from that court for at least 90 days from the date of
the court's decision, or from the date of the court's denial of a motion for a
rehearing, if such motion is timely filed, whichever is later; provided,
however, that this Code section shall not apply where the defendant has
previously applied for a writ of habeas corpus which has been denied and the
denial thereof has been affirmed by the Supreme Court of Georgia, or where the
writ has been granted but the grant thereof has been reversed by the Supreme
Court of Georgia.
Reserved."
SECTION
5.
Said
title is further amended in Code Section 5-6-34, relating to judgments and
rulings deemed directly appealable, procedure for review of judgments, orders,
or decisions not subject to direct appeal, scope of review, and hearings in
criminal cases involving a capital offense for which death penalty is sought, by
revising subsection (c) as follows:
"(c)
In criminal
cases involving a capital offense for which the death penalty is sought, a
hearing shall be held as provided in Code Section 17-10-35.2 to determine if
there shall be a review of pretrial proceedings by the Supreme Court prior to a
trial before a jury. Review of pretrial proceedings, if ordered by the trial
court, shall be exclusively as provided by Code Section 17-10-35.1 and no
certificate of immediate review shall be
necessary.
Reserved."
SECTION
6.
Said
title is further amended by revising Code Section 5-6-38, relating to time of
filing appeal, cross appeal, record and transcript for cross appeal, division of
costs where cross appeal filed, and appeals in capital offense cases for which
death penalty is sought, as follows:
"5-6-38.
(a)
A notice of appeal shall be filed within 30 days after entry of the appealable
decision or judgment complained of; but when a motion for new trial, a motion in
arrest of judgment, or a motion for judgment notwithstanding the verdict has
been filed, the notice shall be filed within 30 days after the entry of the
order granting, overruling, or otherwise finally disposing of the motion. In
civil cases, the appellee may institute cross appeal by filing notice thereof
within 15 days from service of the notice of appeal by the appellant; and the
appellee may present for adjudication on the cross appeal all errors or rulings
adversely affecting him
or
her; and in no case shall the appellee be
required to institute an independent appeal on his
or
her own right, although the appellee may
at his or
her option file an independent appeal. The
notice of cross appeal shall set forth the title and docket number of the case,
the name of the appellee, the name and address of his
or
her attorney, and a designation of any
portions of the record or transcript designated for omission by the appellant
and which the appellee desires included and shall state that the appellee takes
a cross appeal. In all cases where the notice of appeal did not specify that a
transcript of evidence and proceedings was to be transmitted as a part of the
record on appeal, the notice of cross appeal shall state whether such transcript
is to be filed for inclusion in the record on appeal. A copy of the notice of
cross appeal shall be served on other parties of record in the manner prescribed
by Code Section 5-6-32.
(b)
Where a cross appeal is filed, only one record and, where specified, only one
transcript of evidence and proceedings need be prepared and transmitted to the
appellate court; but the cross appellant may, at his
or
her election, require that such a separate
record (and transcript, if required) be transmitted. Where a cross appeal is
filed and only one record (and transcript, where required) is sent up, the court
shall by order provide for the division of costs therefor between the parties if
they are unable to do so by agreement.
(c)
Notwithstanding subsection (a) of this Code section, where either the state or
the defendant wishes to appeal any judgment, ruling, or order in the pretrial
proceedings of a criminal case involving a capital offense for which the death
penalty is sought, such appeal shall be brought as provided in Code Section
17-10-35.1."
SECTION
7.
Said
title is further amended in Code Section 5-6-41, relating to reporting,
preparation, and disposition of transcript, correction of omissions or
misstatements, preparation of transcript from recollections, filing of
disallowed papers, filing of stipulations in lieu of transcript, and reporting
at party's expense, by revising subsection (e) as follows:
"(e)
Where a civil or criminal trial is reported by a court reporter and the evidence
and proceedings are transcribed, the reporter shall complete the transcript and
file the original and one copy thereof with the clerk of the trial court,
together with the court reporter's certificate attesting to the correctness
thereof.
In criminal
cases where the accused was convicted of a capital felony, an additional copy
shall be filed for the Attorney General, for which the court reporter shall
receive compensation from the Department of Law as provided by
law. The original transcript shall be
transmitted to the appellate court as a part of the record on appeal; and one
copy will be retained in the trial court, both as referred to in Code Section
5-6-43. Upon filing by the reporter, the transcript shall become a part of the
record in the case and need not be approved by the trial
judge."
SECTION
8.
Said
title is further amended in Code Section 5-6-43, relating to preparation and
transmittal of record on appeal by court clerk, retention of copy by clerk,
furnishing to Attorney General in capital cases, and notification where
defendant confined to jail, by revising subsection (b) as follows:
"(b)
Where the
accused in a criminal case was convicted of a capital felony, the clerk shall
likewise furnish, at no cost, the Attorney General with an exact copy of the
record on appeal.
Reserved."
SECTION
9.
Said
title is further amended in Code Section 5-6-45, relating to operation of notice
of appeal as supersedeas in criminal cases, bond, and review, by revising
subsection (a) as follows:
"(a)
In all criminal cases, the notice of appeal filed as provided in Code Sections
5-6-37 and 5-6-38 shall serve as supersedeas in all cases where
a sentence
of death has been imposed or where the
defendant is admitted to bail. If the sentence is bailable, the defendant may
give bond in an amount prescribed by the presiding judge, with security approved
by the clerk, conditioned upon the defendant's personal appearance to abide the
final judgment or sentence of the court. If the judgment or sentence is or
includes a fine which is unconditionally required to be paid, and is not
required to be paid over a period of probation, nor as a condition of a
suspended or probated sentence, nor as an alternative sentence, the bond may
also be conditioned upon payment of the fine at the time the defendant appears
to abide the final judgment or sentence."
SECTION
10.
Chapter
14 of Title 9 of the Official Code of Georgia Annotated, relating to habeas
corpus, is amended by revising Code Section 9-14-4, relating to petition for
writ, verification, and to whom presented, as follows:
"9-14-4.
The
petition for the writ of habeas corpus must be verified by the oath of the
applicant or some other person in his
or
her behalf. It may be presented to the
judge of the superior court of the circuit in which the illegal detention exists
who may order the party restrained of
his
liberty to be brought before
him
from
the judge
of any county in
his
such
circuit, or it may be presented to the judge of the probate court of the
county,
except in cases of capital felonies or in which a person is held for extradition
under warrant of the
Governor."
SECTION
11.
Said
chapter is further amended in Code Section 9-14-42, relating to grounds for writ
and waiver of objection to jury composition, by revising subsection (c) as
follows:
"(c)
Any action brought pursuant to this article shall be filed within one year in
the case of a misdemeanor, except as otherwise provided in Code Section
40-13-33, or within four years in the case of a felony,
other than
one challenging a conviction for which a death sentence has been imposed or
challenging a sentence of death,
from:
(1)
The judgment of conviction becoming final by the conclusion of direct review or
the expiration of the time for seeking such review; provided, however, that any
person whose conviction has become final as of July 1, 2004, regardless of the
date of conviction, shall have until July 1, 2005, in the case of a misdemeanor
or until July 1, 2008, in the case of a felony to bring an action pursuant to
this Code section;
(2)
The date on which an impediment to filing a petition which was created by state
action in violation of the Constitution or laws of the United States or of this
state is removed, if the petitioner was prevented from filing such state
action;
(3)
The date on which the right asserted was initially recognized by the Supreme
Court of the United States or the Supreme Court of Georgia, if that right was
newly recognized by said courts and made retroactively applicable to cases on
collateral review; or
(4)
The date on which the facts supporting the claims presented could have been
discovered through the exercise of due diligence."
SECTION
12.
Said
chapter is further amended by revising Code Section 9-14-47, relating to time
for answer and hearing, as follows:
"9-14-47.
Except
as otherwise provided in Code Section 9-14-47.1 with respect to petitions
challenging for the first time state court proceedings resulting in a sentence
of death, within
Within
20 days after the filing and docketing of a petition under this article or
within such further time as the court may set, the respondent shall answer or
move to dismiss the petition. The court shall set the case for a hearing on the
issues within a reasonable time after the filing of defensive
pleadings."
SECTION
13.
Said
chapter is further amended by repealing Code Section 9-14-47.1, relating to
petitions challenging for the first time state court proceedings resulting in
death sentence.
SECTION
14.
Said
chapter is further amended in Code Section 9-14-48, relating to hearing,
evidence, depositions, affidavits, determination of compliance with procedural
rules, and disposition, by revising subsection (e) as follows:
"(e)
A petition,
other than one challenging a conviction for which a death sentence has been
imposed or challenging a sentence of
death, may be dismissed if there is a
particularized showing that the respondent has been prejudiced in its ability to
respond to the petition by delay in its filing unless the petitioner shows by a
preponderance of the evidence that it is based on grounds of which he or she
could not have had knowledge by the exercise of reasonable diligence before the
circumstances prejudicial to the respondent occurred. This subsection shall
apply only to convictions had before July 1, 2004."
SECTION
15.
Title
15 of the Official Code of Georgia Annotated, relating to courts, is amended by
revising Code Section 15-1-9.1, relating to requesting judicial assistance from
other courts, as follows:
"15-1-9.1.
(a)
As used in this Code section, the term:
(1)
'Administrative judge' means a superior court judge or senior judge of the
superior court elected within an administrative district as provided by Code
Section 15-5-4.
(2)
'Chief judge' means the judge most senior in time of service or, if applicable,
the judge to whom the administrative duties of a court have been
assigned.
(3)
'Judge' includes Justices, judges, senior judges, magistrates, and every other
such judicial officer of whatever name existing or created.
(4)
'Part-time judge' means a judge who serves on a continuing or periodic basis but
who is permitted by law to devote time to some other profession or occupation
and whose compensation for that reason is less than that of a full-time
judge.
(b)(1)
If assistance is needed from a judge outside of the county, a superior court
judge of this state or the chief judge of a class of courts other than an
appellate court may make a request for judicial assistance in the court served
by said requesting judge to the administrative judge of the judicial
administrative district in which said requesting judge's court is located, if
any of the following circumstances arises:
(A)
A judge of the requesting court is disqualified for any cause from presiding in
any matter pending before the court;
(B)
A judge of the requesting court is unable to preside because of disability,
illness, or absence;
(C)
A judge of the requesting court is unable to preside because such judge is
performing ordered military duty as such term is defined in Code Section
38-2-279; or
(D)
A majority of the judges of the requesting court determines that the business of
the court requires the temporary assistance of an additional judge or additional
judges.
(2)
If assistance is needed from a judge from the same county, the chief judge of
any court within such county of this state may make a written request for
assistance to the chief judge of any other court within such county, a senior
judge of the superior court, a retired judge, or a judge emeritus of any court
within the county. The request by the chief judge may be made if one of the
following circumstances arises:
(A)
A judge of the requesting court is disqualified for any cause from presiding in
any matter pending before the court;
(B)
A judge of the requesting court is unable to preside because of disability,
illness, or absence;
(C)
A judge of the requesting court is unable to preside because such judge is
performing ordered military duty as such term is defined in Code Section
38-2-279;
(D)
A majority of the judges of the requesting court determines that the business of
the court requires the temporary assistance of an additional judge or additional
judges; or
(E)
A majority of the judges of the requesting court determines that the business of
the court requires the permanent assistance of an additional judge or additional
judges. If the requesting court is a state or superior court, the assisting
judge or assisting judges may hear and decide matters otherwise in the exclusive
jurisdiction of the state or superior court without regard to time, type of
case, or limitations contained in the rules of such state or superior court;
provided, however, that a chief magistrate or magistrate may serve as a
permanent assisting judge only in counties having a population of 180,000 or
more according to the United States decennial census of 1990 or any future such
census.
(3)
When a petition for habeas corpus is filed challenging for the first time state
court proceedings resulting in a death sentence, the clerk of the superior court
acting on behalf of the chief judge shall make a request for judicial assistance
to the president of The Council of Superior Court Judges of Georgia. Within 30
days of receipt of a request for judicial assistance, the president of The
Council of Superior Court Judges of Georgia shall, under guidelines promulgated
by the executive committee of said council, assign the case to a judge of a
circuit other than the circuit in which the conviction and sentence were
imposed.
(4)
In petitions under this article challenging for a second or subsequent time a
state court proceeding resulting in a death sentence, the chief judge of the
court where the petition is filed may make a request for judicial assistance to
the president of The Council of Superior Court Judges of Georgia upon certifying
that the business of the court will be impaired unless assistance is obtained.
Within 30 days of receipt of a request for judicial assistance, the president of
The Council of Superior Court Judges of Georgia shall, under guidelines
promulgated by the executive committee of said council, assign the case to a
judge of a circuit other than the circuit in which the conviction and sentence
were imposed.
(c)
A chief judge of a requesting court or assisting court shall be presumed to act
with the consent of all judges of the court. However, if a judge of a court
shall insist, all judges of that court shall vote upon whether to ratify the
action taken by the chief judge under this Code section.
(d)(1)
If the chief judge is unable because of disability, illness, or absence to make
a request for assistance, a majority of the judges of the court may make such a
request for him
or
her. If a court is served by only one
judge who, himself
or
herself, is unable to make a request
because of disability, illness, or absence, or when the judge or judges of the
court fail to procure assistance in the event of the absence, illness,
disability, or disqualification of one of the judges, and it is satisfactorily
made to appear to the Governor that any regular or special term of any court
will not be held or continued in session because of such failure to procure
assistance, the Governor shall request the administrative judge of the judicial
administrative district within which district the court in need of assistance
lies to assign another judge to hold the regular or special term of such court.
However, no judge shall be named or assigned to hold court when the time fixed
by law for holding the term of court conflicts with the holding of any regular
or special term already called by
him
such
judge in his
or
her own court.
(2)
If a vacancy shall occur in the judicial office for which the Governor has had
to request assistance from the administrative judge of the judicial
administrative district in a situation wherein the conditions exist as provided
in paragraph (1) of this subsection, the Governor may appoint a judge of a court
of record as an interim judge to fill temporarily such vacancy until the vacancy
is permanently filled as provided by law.
(e)
The administrative judge of the district receiving a request for assistance
shall designate a judge to preside as requested. The designated judge may
consent to preside in the requesting court provided he
or
she is otherwise qualified to serve as a
judge in the requesting court. The qualifications of residency within a
particular political or geographic subdivision of the state shall not apply to a
designated judge. The designation shall be made in writing and delivered to the
judge requesting assistance.
(f)
The written designation shall identify the court in need of assistance, the
county where located, the time period covered, the specific case or cases for
which assistance is sought if applicable, and the reason that assistance is
needed. The written designation shall be filed and recorded on the minutes of
the clerk of the court requesting assistance. Any amendment to the designation
shall be written, filed, and recorded as is the original
designation.
(g)
A judge rendering assistance in accordance with this Code section shall
discharge all the duties and shall exercise all of the powers and authority of a
judge of the court in which he
or
she is presiding.
(h)
The governing authority responsible for funding the operation of the requesting
court shall bear the expenses of the judge rendering assistance in accordance
with this Code section, except that such judges presiding in the appellate or
superior courts in accordance with this Code section shall be compensated by
state funds appropriated or otherwise available for the operation of these
courts.
(i)
Senior judges of the superior courts, senior judges appointed pursuant to Code
Section 15-1-9.3, part-time judges, and retired judges or judges emeritus of the
state courts shall receive the amount of compensation and payment for expenses
as provided by Code Section 15-1-9.2. All other judges rendering assistance in
accordance with this Code section shall be entitled to actual travel and lodging
expenses but shall not be entitled to any additional compensation for this
assistance.
(j)
The court reporter, support personnel, facilities, equipment, and supplies
necessary to perform the duties requested shall be provided to any judge
rendering assistance in accordance with this Code section by the requesting
court, unless otherwise agreed.
(k)
In the event that the judge requesting assistance is a superior court judge
other than a chief judge, then a copy of the assignment shall also be filed with
the chief judge of the court to be assisted.
(l)
As an alternative to the other provisions of this Code section, any judge other
than a superior court judge may, under the circumstances described in
subparagraph (b)(1)(B) or (b)(1)(C) of this Code section, request judicial
assistance from any other judge who is not a superior court judge and who is
otherwise qualified; and the judge so requested may agree to so serve. When one
judge serves in the court of another pursuant to this subsection, a written
designation by the requesting judge shall be filed and recorded on the minutes
in the same general manner as provided for in subsection (f) of this Code
section and the provisions of subsection (h) of this Code section shall apply
with respect to the payment of expenses. The provisions of this subsection are
supplementary to the provisions of the other subsections of this Code
section.
(m)
This Code section shall be supplementary to other laws relating to the
authorization of replacement judges.
(n)
Notwithstanding the provisions of this Code section, a senior judge shall not be
assigned, designated, or preside in any criminal case involving a capital
offense for which the death penalty may be imposed once the state has filed a
notice of its intention to seek the death penalty; provided, however, that a
senior judge may be assigned, designated, or preside in such a case if the judge
had previously been assigned or designated and presided over such case while
serving as an elected superior court judge prior to attaining senior judge
status."
SECTION
16.
Said
title is further amended by revising Code Section 15-1-9.2, relating to senior
judge status, request for assistance of senior judge, compensation, and service
in capital offense cases, as follows:
"15-1-9.2.
(a)
The office of senior judge of the superior courts is created, and judges of the
superior courts or former judges of the superior courts may become senior judges
as follows:
(1)
Any judge of the superior courts who retires pursuant to the provisions of
Chapter 8 or Chapter 23 of Title 47 and any such judge who receives a disability
retirement benefit under such chapter may become a senior judge beginning on the
effective date of the judge's retirement; and
(2)
Any judge of the superior courts, whether or not said judge is a member of the
retirement system created by Chapter 23 of Title 47, who ceases holding office
as a judge of the superior courts and who has at least ten years of service as a
judge of the superior courts at the time of ceasing to hold office and who is
not eligible for appointment to the office of senior judge under any other law
of this state may become a senior judge.
(a.1)
Notwithstanding the provisions of subsection (a) of this Code section, any
Justice of the Supreme Court of Georgia, Judge of the Court of Appeals, superior
court judge, state court judge, magistrate court judge, or juvenile court judge
who ceases holding office as a judge and who has a total of ten years of service
in any combination of such offices or a total of nine years of service in any
combination of such offices plus at least one year of service as chairperson of
the State Board of Workers' Compensation may become a senior judge. Said
combination must include at least five years' service as a Justice of the
Supreme Court, Judge of the Court of Appeals, or judge of the superior court or
at least five years as total served in combination as Justice of the Supreme
Court, Judge of the Court of Appeals, or judge of the superior
court.
(a.2)
Senior judge status as provided in this Code section shall be acquired by a
qualified former judge's applying to the Governor for appointment as senior
judge. The Governor shall appoint each qualified applicant as a senior
judge.
(b)
The chief judge of any appellate or superior court of this state may make a
written request for assistance to a senior judge. The request by the chief
judge may be made if one of the following circumstances arise:
(1)
A judge of the requesting court is disqualified for any cause from presiding in
any matter pending before the court;
(2)
A judge of the requesting court is unable to preside because of disability,
illness, or absence; or
(3)
A majority of the judges of the requesting court determines that the business of
the court requires the temporary assistance of an additional judge or additional
judges as provided for in Code Section 15-1-9.1.
(c)
An active judge may call upon a senior judge to serve in an emergency or when
the volume of cases or other unusual circumstances cause such service to be
necessary in order to provide for the speedy and efficient disposition of the
business of the circuit.
(d)(1)
Senior judges serving as judges of an appellate or superior court under this
Code section or any other provision of law shall receive compensation from state
funds for each day of service, in the amount of the annual state salary of a
judge of the applicable court, divided by 235. In addition to such
compensation, such senior judges shall receive their actual expenses or, at the
judge's option, in the event of service outside the county of the judge's
residence, the same per diem expense authorized by law for members of the
General Assembly and shall receive mileage at the same rate as other state
employees for such services. Such compensation, expenses, and mileage shall be
paid from state funds appropriated or otherwise available for the operation of
the appellate or superior courts, upon a certificate by the senior judge as to
the number of days served or the expenses and mileage. Such compensation shall
not affect, diminish, or otherwise impair the payment or receipt of any
retirement or pension benefits, when applicable, of such judge.
(2)
Senior judges serving as judges of any court other than an appellate or superior
court under this Code section or any other provision of law shall receive
compensation for each day of service, in the amount of the annual salary of a
judge of the applicable court, divided by 235. In addition to such
compensation, such senior judges shall receive their actual expenses or, at the
judge's option, in the event of service outside the county of the judge's
residence, the same per diem expense authorized by law for members of the
General Assembly and shall receive mileage at the same rate as state employees
for such services. Such compensation, expenses, and mileage shall be paid from
funds appropriated or otherwise available for the operation of the applicable
court, upon a certificate by the senior judge as to the number of days served or
the expenses and mileage. Such compensation shall not affect, diminish, or
otherwise impair the payment or receipt of any retirement or pension benefits,
when applicable, of such judge.
(e)
Notwithstanding the provisions of this Code section, a senior judge shall not be
assigned, designated, or preside in any criminal case involving a capital
offense for which the death penalty may be imposed once the state has filed a
notice of its intention to seek the death penalty; provided, however, that a
senior judge may be assigned, designated, or preside in such a case if the judge
had previously been assigned or designated and presided over such case while
serving as an elected superior court judge prior to attaining senior judge
status."
SECTION
17.
Said
title is further amended by revising Code Section 15-1-9.3, relating to senior
judge of state court, probate court, or juvenile court, request for assistance
of senior judge, compensation, and service in capital offense cases, as
follows:
"15-1-9.3.
(a)(1)
Any state court judge or juvenile court judge who retires pursuant to the
provisions of Chapter 23 of Title 47 after having served for ten or more years
in any combination of service as a judge of a state court or juvenile court may
be appointed a senior judge of the type of court from which the judge
retired.
(2)
Any state court or juvenile court judge, whether or not said judge is a member
of the retirement fund created by Chapter 23 of Title 47, who ceases holding
office as a judge and who has at least ten years in any combination of service
as judge of a state court or juvenile court at the time of ceasing to hold
office and who is not eligible for appointment to the office of senior judge
under any other law of this state may be appointed as a senior judge as provided
in this Code section.
(3)
No judge of a state court or juvenile court who retires because of disability
pursuant to the provisions of Chapter 23 of Title 47 shall be eligible for
appointment as a senior judge pursuant to the provisions of this Code
section.
(4)
In this paragraph, 'probate court' has the same meaning as set out in paragraph
(2) of Code Section 15-9-120. Any judge of the probate court who ceases holding
office as a judge of the probate court after serving as such for at least ten
years and who has not been appointed to the office of senior judge under any
other law of this state may be appointed as a senior judge as provided in this
Code section.
(b)
Upon becoming eligible for appointment pursuant to the provisions of this Code
section, a judge who ceases to hold office may become a senior judge and in that
capacity may be called upon to serve as a justice or judge in any court of this
state.
(c)
Senior judge status shall be acquired by a qualified former judge's applying to
the Governor for appointment as senior judge. The Governor shall appoint each
qualified applicant as a senior judge.
(d)
The judge of any court of this state may make a written request for assistance
to a senior judge. The request by the judge may be made if one of the following
circumstances arise:
(1)
A judge of the requesting court is disqualified for any cause from presiding in
any matter pending before the court;
(2)
A judge of the requesting court is unable to preside because of disability,
illness, or absence; or
(3)
A majority of the judges of the requesting court determines that the business of
the court requires the temporary assistance of an additional judge or additional
judges as provided for in Code Section 15-1-9.1.
(e)
An active judge may call upon a senior judge to serve in an emergency or when
the volume of cases or other unusual circumstances cause such service to be
necessary in order to provide for the timely and efficient disposition of the
business of the court.
(f)
A senior judge shall receive compensation and expenses as provided in subsection
(d) of Code Section 15-1-9.2.
(g)
Notwithstanding the provisions of this Code section, a senior judge shall not be
assigned, designated, or preside in any criminal case involving a capital
offense for which the death penalty may be imposed once the state has filed a
notice of its intention to seek the death penalty; provided, however, that a
senior judge may be assigned, designated, or preside in such a case if the judge
had previously been assigned or designated and presided over such case while
serving as an elected superior court judge prior to attaining senior judge
status."
SECTION
18.
Said
title is further amended by revising Code Section 15-3-3, relating to
jurisdiction over certain crimes, as follows:
"15-3-3.
Pursuant
to Article VI, Section V, Paragraph III of the Constitution of this state, the
Court of Appeals shall have jurisdiction of the trial and correction of errors
of law in cases involving the crimes of armed robbery, rape, and kidnapping
wherein the
death penalty has not been
imposed."
SECTION
19.
Said
title is further amended in Code Section 15-12-142, relating to separation and
confinement, by revising subsection (a) as follows:
"(a)
At any time during the trial of a civil or criminal case,
except in
capital cases, either before or during
jury deliberation, the judge may, in his
or
her discretion, allow the jury to be
separated and the members thereof to be dispersed under appropriate
instructions."
SECTION
20.
Said
title is further amended by revising Code Section 15-12-160, relating to
required panel of jurors in felony trial and tales jurors where necessary, as
follows:
"15-12-160.
When
any person stands indicted for a felony, the court shall have impaneled 30
jurors from which the defense and prosecution may strike
jurors;
provided, however, that in any case in which the state announces its intention
to seek the death penalty, the court shall have impaneled 42 jurors from which
the defense and state may strike jurors.
If, for any reason, after striking from the panel there remain less than 12
qualified jurors to try the case, the presiding judge shall summon such numbers
of persons who are competent prospective jurors as may be necessary to provide a
full panel or successive panels. In making up the panel or successive panels,
the presiding judge shall draw the tales jurors from the jury box of the county
and shall order the sheriff to summon them. This Code section shall stand
repealed and reserved on July 1, 2012."
SECTION
21.
Said
title is further amended by revising Code Section 15-12-160.1, relating to
number of impaneled jurors from which to strike and choosing and summoning
prospective jurors if necessary to fill panel, as follows:
"15-12-160.1.
On
and after July 1, 2012, when any person stands indicted for a felony, the court
shall have impaneled 30 jurors from which the defense and prosecution may strike
jurors;
provided, however, that in any case in which the state announces its intention
to seek the death penalty, the court shall have impaneled 42 jurors from which
the defense and state may strike jurors.
If, for any reason, after striking from the panel there remain fewer than 12
qualified jurors to try the case, the clerk shall choose and cause to be
summoned such numbers of persons who are competent prospective jurors as may be
necessary to provide a full panel or successive panels. In making up the panel
or successive panels, the clerk shall choose the names of prospective trial
jurors in the same manner as prospective trial jurors are chosen and cause such
persons to be summoned."
SECTION
22.
Said
title is further amended in Code Section 15-12-164, relating to questions on
voir dire and setting aside juror for cause, by revising subsection (a) as
follows:
"15-12-164.
(a)
On voir dire examination in a felony trial, the jurors shall be asked the
following questions:
(1)
'Have you, for any reason, formed and expressed any opinion in regard to the
guilt or innocence of the accused?' If the juror answers in the negative, the
question in paragraph (2) of this subsection shall be propounded to him
or
her;
(2)
'Have you any prejudice or bias resting on your mind either for or against the
accused?' If the juror answers in the negative, the question in paragraph (3) of
this subsection shall be propounded to him
or
her;
and
(3)
'Is your mind perfectly impartial between the state and the accused?' If the
juror answers this question in the affirmative, he
or
she shall be adjudged and held to be a
competent juror in all cases
where the
authorized penalty for the offense does not involve the life of the accused; but
when it does involve the life of the accused, the question in paragraph (4) of
this subsection shall also be put to him;
(4)
'Are you conscientiously opposed to capital punishment?' If the juror answers
this question in the negative, he shall be held to be a competent
juror."
SECTION
23.
Said
title is further amended by revising Code Section 15-12-165, relating to number
of peremptory challenges, as follows:
"15-12-165.
Every
person accused of a felony may peremptorily challenge nine of the jurors
impaneled to try him or her. The state shall be allowed the same number of
peremptory challenges allowed to the
accused;
provided, however, that in any case in which the state announces its intention
to seek the death penalty, the accused may peremptorily challenge 15 jurors and
the state shall be allowed the same number of peremptory
challenges."
SECTION
24.
Title
17 of the Official Code of Georgia Annotated, relating to criminal procedure, is
amended by revising subsection (b) of Code Section 17-3-1, relating to
limitation on prosecutions generally, as follows:
"(b)
Prosecution for other crimes punishable by
death
or life imprisonment must be commenced
within seven years after the commission of the crime except as provided by
subsection (c.1) of this Code section; provided, however, that prosecution for
the crime of forcible rape must be commenced within 15 years after the
commission of the crime."
SECTION
25.
Said
title is further amended by revising subsection (b) of Code Section 17-5-56,
relating to maintenance of physical evidence containing biological material, as
follows:
"(b)
In a case
in which the death penalty is imposed, the evidence shall be maintained until
the sentence in the case has been carried
out. Evidence in all felony cases that
contains biological material, including, but not limited to, stains, fluids, or
hair samples that relate to the identity of the perpetrator of the crime shall
be maintained for the period of time that the crime remains unsolved or until
the sentence in the case is completed, whichever occurs last."
SECTION
26.
Said
title is further amended by revising subsection (h) of Code Section 17-6-1,
relating to where offenses bailable, procedure, schedule of bails, and appeal
bonds, as follows:
"(h)
Except in cases in which life imprisonment
or the
death penalty may be imposed, a judge of
the superior court by written order may delegate the authority provided for in
this Code section to any judge of any court of inquiry within such superior
court judge's circuit. However, such authority may not be exercised outside the
county in which said judge of the court of inquiry was appointed or elected.
The written order delegating such authority shall be valid for a period of one
year, but may be revoked by the superior court judge issuing such order at any
time prior to the end of that one-year period."
SECTION
27.
Said
title is further amended by revising Code Section 17-7-50, relating to right to
grand jury hearing within 90 days where bail refused and right to have bail set
absent hearing within 90 day period, as follows:
"17-7-50.
Any
person who is arrested for a crime and who is refused bail shall, within 90 days
after the date of confinement, be entitled to have the charge against him or her
heard by a grand jury having jurisdiction over the accused
person;
provided, however, that if the person is arrested for a crime for which the
death penalty is being sought, the superior court may, upon motion of the
district attorney for an extension and after a hearing and good cause shown,
grant one extension to the 90 day period not to exceed 90 additional days; and,
provided, further, that if such extension is granted by the court, the person
shall not be entitled to have the charge against him or her heard by the grand
jury until the expiration of such extended period. In the event no grand jury
considers the charges against the accused person within the 90 day period of
confinement or within the extended period of confinement where such an extension
is granted by the court, the accused shall have bail set upon application to the
court."
SECTION
28.
Said
title is further amended by revising Code Section 17-7-50.1, relating to time
for presentment of child's case to a grand jury and exception, as
follows:
"17-7-50.1.
(a)
Any child who is charged with a crime that is within the jurisdiction of the
superior court, as provided in Code Section 15-11-28 or 15-11-30.2, who is
detained shall within 180 days of the date of detention be entitled to have the
charge against him or her presented to the grand jury. The superior court
shall, upon motion for an extension of time and after a hearing and good cause
shown, grant one extension to the original 180 day period, not to exceed 90
additional days.
(b)
If the grand jury does not return a true bill against the detained child within
the time limitations set forth in subsection (a) of this Code section, the
detained child's case shall be transferred to the juvenile court and shall
proceed thereafter as provided in Chapter 11 of Title 15.
(c)
The provisions of this Code section shall not apply to any case in which the
prosecuting attorney files notice with the court that the detained child is a
codefendant to a case in which an adult is charged with committing the same
offense and the state has filed a notice of its intention to seek the death
penalty."
SECTION
29.
Said
title is further amended by revising Code Section 17-7-70, relating to trial
upon accusations in felony cases and trial upon accusations of felony and
misdemeanor cases in which guilty plea entered and indictment waived, as
follows:
"17-7-70.
(a)
In all felony
cases,
other than cases involving capital
felonies, in which defendants have been
bound over to the superior court, are confined in jail or released on bond
pending a commitment hearing, or are in jail having waived a commitment hearing,
the district attorney shall have authority to prefer accusations, and such
defendants shall be tried on such accusations, provided that defendants going to
trial under such accusations shall, in writing, waive indictment by a grand
jury.
(b)
Judges of the superior court may open their courts at any time without the
presence of either a grand jury or a trial jury to receive and act upon pleas of
guilty in misdemeanor cases and in felony cases, except those punishable by
death
or life imprisonment, when the judge and
the defendant consent thereto. The judge may try the issues in such cases
without a jury upon an accusation filed by the district attorney where the
defendant has waived indictment and consented thereto in writing and counsel is
present in court representing the defendant either by virtue of his
or
her employment or by appointment by the
court."
SECTION
30.
Said
title is further amended in Code Section 17-7-95, relating to plea of nolo
contendere in noncapital felony cases, imposition of sentence, use of plea in
other proceedings, use of plea to effect civil disqualifications, and imposition
of sentence upon plea deemed jeopardy, by revising subsection (a) as
follows:
"(a)
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."
SECTION
31.
Said
title is further amended in Code Section 17-7-131, relating to proceedings upon
plea of insanity or mental incompetency at time of crime, as
follows:
"17-7-131.
(a)
For purposes of this Code section, the term:
(1)
'Insane at the time of the crime' means meeting the criteria of Code Section
16-3-2 or
Code
Section 16-3-3. However, the term shall
not include a mental state manifested only by repeated unlawful or antisocial
conduct.
(2)
'Mentally ill' means having a disorder of thought or mood which significantly
impairs judgment, behavior, capacity to recognize reality, or ability to cope
with the ordinary demands of life. However, the term 'mental illness' shall not
include a mental state manifested only by repeated unlawful or antisocial
conduct.
(3)
'Mentally retarded' means having significantly subaverage general intellectual
functioning resulting in or associated with impairments in adaptive behavior
which manifested during the developmental period.
(b)(1)
In all cases in which the defense of insanity is interposed, the jury, or the
court if tried by it, shall find whether the defendant is:
(A)
Guilty;
(B)
Not guilty;
(C)
Not guilty by reason of insanity at the time of the crime;
(D)
Guilty but mentally ill at the time of the crime, but the finding of guilty but
mentally ill shall be made only in felony cases; or
(E)
Guilty but mentally retarded, but the finding of mental retardation shall be
made only in felony cases.
(2)
A plea of guilty but mentally ill at the time of the crime or a plea of guilty
but mentally retarded shall not be accepted until the defendant has undergone
examination by a licensed psychologist or psychiatrist and the court has
examined the psychological or psychiatric reports, held a hearing on the issue
of the defendant's mental condition, and is satisfied that there is a factual
basis that the defendant was mentally ill at the time of the offense or mentally
retarded to which the plea is entered.
(2.1)
A plea of not guilty by reason of insanity at the time of the crime shall not be
accepted and the defendant adjudicated not guilty by reason of insanity by the
court without a jury until the defendant has undergone examination by a licensed
psychologist or psychiatrist and the court has examined the psychological or
psychiatric reports, has held a hearing on the issue of the defendant's mental
condition, and the court is satisfied that the defendant was insane at the time
of the crime according to the criteria of Code Section 16-3-2 or
16-3-3.
(3)
In all cases in which the defense of insanity is interposed, the trial judge
shall charge the jury, in addition to other appropriate charges, the
following:
(A)
I charge you that should you find the defendant not guilty by reason of insanity
at the time of the crime, the defendant will be committed to a state mental
health facility until such time, if ever, that the court is satisfied that he or
she should be released pursuant to law.
(B)
I charge you that should you find the defendant guilty but mentally ill at the
time of the crime, the defendant will be placed in the custody of the Department
of Corrections which will have responsibility for the evaluation and treatment
of the mental health needs of the defendant, which may include, at the
discretion of the Department of Corrections, referral for temporary
hospitalization at a facility operated by the Department of Behavioral Health
and Developmental Disabilities.
(C)
I charge you that should you find the defendant guilty but mentally retarded,
the defendant will be placed in the custody of the Department of Corrections,
which will have responsibility for the evaluation and treatment of the mental
health needs of the defendant, which may include, at the discretion of the
Department of Corrections, referral for temporary hospitalization at a facility
operated by the Department of Behavioral Health and Developmental
Disabilities.
(c)
In all criminal trials in any of the courts of this state wherein an accused
shall contend that he
or
she was insane or otherwise mentally
incompetent under the law at the time the act or acts charged against him
or
her were committed, the trial judge shall
instruct the jury that they may consider, in addition to verdicts of 'guilty'
and 'not guilty,' the additional verdicts of 'not guilty by reason of insanity
at the time of the crime,' 'guilty but mentally ill at the time of the crime,'
and 'guilty but mentally retarded.'
(1)
The defendant may be found 'not guilty by reason of insanity at the time of the
crime' if he
or
she meets the criteria of Code Section
16-3-2 or 16-3-3 at the time of the commission of the crime. If the court or
jury should make such finding, it shall so specify in its verdict.
(2)
The defendant may be found 'guilty but mentally ill at the time of the crime' if
the jury, or court acting as trier of facts, finds beyond a reasonable doubt
that the defendant is guilty of the crime charged and was mentally ill at the
time of the commission of the crime. If the court or jury should make such
finding, it shall so specify in its verdict.
(3)
The defendant may be found 'guilty but mentally retarded' if the jury, or court
acting as trier of facts, finds beyond a reasonable doubt that the defendant is
guilty of the crime charged and is mentally retarded. If the court or jury
should make such finding, it shall so specify in its verdict.
(d)
Whenever a defendant is found not guilty by reason of insanity at the time of
the crime, the court shall retain jurisdiction over the person so acquitted and
shall order such person to be detained in a state mental health facility, to be
selected by the Department of Behavioral Health and Developmental Disabilities,
for a period not to exceed 30 days from the date of the acquittal order, for
evaluation of the defendant's present mental condition. Upon completion of the
evaluation, the proper officials of the mental health facility shall send a
report of the defendant's present mental condition to the trial judge, the
prosecuting attorney, and the defendant's attorney, if any.
(e)(1)
After the expiration of the 30 days' evaluation period in the state mental
health facility, if the evaluation report from the Department of Behavioral
Health and Developmental Disabilities indicates that the defendant does not meet
the inpatient commitment criteria of Chapter 3 of Title 37 or Chapter 4 of Title
37, the trial judge may issue an order discharging the defendant from custody
without a hearing.
(2)
If the defendant is not so discharged, the trial judge shall order a hearing to
determine if the defendant meets the inpatient commitment criteria of Chapter 3
of Title 37 or Chapter 4 of Title 37. If such criteria are not met, the
defendant must be discharged.
(3)
The defendant shall be detained in custody until completion of the hearing. The
hearing shall be conducted at the earliest opportunity after the expiration of
the 30 days' evaluation period but in any event within 30 days after receipt by
the prosecuting attorney of the evaluation report from the mental health
facility. The court may take judicial notice of evidence introduced during the
trial of the defendant and may call for testimony from any person with knowledge
concerning whether the defendant is currently a mentally ill person in need of
involuntary treatment, as defined by paragraph (12) of Code Section 37-3-1, or a
person with a developmental disability, as defined in paragraph (8) of Code
Section 37-1-1, who presents a substantial risk of imminent harm to himself or
herself or others. The prosecuting attorney may cross-examine the witnesses
called by the court and the defendant's witnesses and present relevant evidence
concerning the issues presented at the hearing.
(4)
If the judge determines that the defendant meets the inpatient commitment
criteria of Chapter 3 of Title 37 or Chapter 4 of Title 37, the judge shall
order the defendant to be committed to the Department of Behavioral Health and
Developmental Disabilities to receive involuntary treatment under Chapter 3 of
Title 37 or to receive services under Chapter 4 of Title 37. The defendant is
entitled to the following rights specified below and shall be notified in
writing of these rights at the time of his
or
her admission for evaluation under
subsection (d) of this Code section. Such rights are:
(A)
A notice that a hearing will be held and the time and place
thereof;
(B)
A notice that the defendant has the right to counsel and that the defendant or
his or
her representatives may apply immediately
to the court to have counsel appointed if the defendant cannot afford counsel
and that the court will appoint counsel for the defendant unless he
or
she indicates in writing that he
or
she does not desire to be represented by
counsel;
(C)
The right to confront and cross-examine witnesses and to offer
evidence;
(D)
The right to subpoena witnesses and to require testimony before the court in
person or by deposition from any person upon whose evaluation the decision of
the court may rest;
(E)
Notice of the right to have established an individualized service plan
specifically tailored to the person's treatment needs, as such plans are defined
in Chapter 3 of Title 37 and Chapter 4 of Title 37; and
(F)
A notice that the defendant has the right to be examined by a physician or a
licensed clinical psychologist of his
or
her own choice at his
or
her own expense and to have that physician
or psychologist submit a suggested service plan for the patient which conforms
with the requirements of Chapter 3 of Title 37 or Chapter 4 of Title 37,
whichever is applicable.
(5)(A)
If a defendant appears to meet the criteria for outpatient involuntary treatment
as defined in Part 3 of Article 3 of Chapter 3 of Title 37, which shall be the
criteria for release on a trial basis in the community in preparation for a full
release, the court may order a period of conditional release subject to certain
conditions set by the court. The court is authorized to appoint an appropriate
community service provider to work in conjunction with the Department of
Behavioral Health and Developmental Disabilities to monitor the defendant's
compliance with these conditions and to make regular reports to the
court.
(B)
If the defendant successfully completes all requirements during this period of
conditional release, the court shall discharge the individual from commitment at
the end of that period. Such individuals may be referred for community mental
health, mental retardation, or substance abuse services as appropriate. The
court may require the individual to participate in outpatient treatment or any
other services or programs authorized by Chapter 3, 4, or 7 of Title
37.
(C)
If the defendant does not successfully complete any or all requirements of the
conditional release period, the court may:
(i)
Revoke the period of conditional release and return the defendant to a state
hospital for inpatient services; or
(ii)
Impose additional or revise existing conditions on the defendant as appropriate
and continue the period of conditional release.
(D)
For any decision rendered under subparagraph (C) of this paragraph, the
defendant may request a review by the court of such decision within 20 days of
the order of the court.
(E)
The Department of Behavioral Health and Developmental Disabilities and any
community services providers, including the employees and agents of both,
providing supervision or treatment during a period of conditional release shall
not be held criminally or civilly liable for any acts committed by a defendant
placed by the committing court on a period of conditional release.
(f)
A defendant who has been found not guilty by reason of insanity at the time of
the crime and is ordered committed to the Department of Behavioral Health and
Developmental Disabilities under subsection (e) of this Code section may only be
discharged from that commitment by order of the committing court in accordance
with the procedures specified in this subsection:
(1)
Application for the release of a defendant who has been committed to the
Department of Behavioral Health and Developmental Disabilities under subsection
(e) of this Code section upon the ground that he
or
she does not meet the civil commitment
criteria under Chapter 3 of Title 37 or Chapter 4 of Title 37 may be made to the
committing court, either by such defendant or by the superintendent of the state
hospital in which the said defendant is detained;
(2)
The burden of proof in such release hearing shall be upon the applicant. The
defendant shall have the same rights in the release hearing as set forth in
subsection (e) of this Code section; and
(3)
If the finding of the court is adverse to release in such hearing held pursuant
to this subsection on the grounds that such defendant does meet the inpatient
civil commitment criteria, a further release application by the defendant shall
not be heard by the court until 12 months have elapsed from the date of the
hearing upon the last preceding application. The Department of Behavioral Health
and Developmental Disabilities shall have the independent right to request a
release hearing once every 12 months.
(g)(1)
Whenever a defendant is found guilty but mentally ill at the time of a felony or
guilty but mentally retarded, or enters a plea to that effect that is accepted
by the court, the court shall sentence him or her in the same manner as a
defendant found guilty of the
offense,
except as otherwise provided in subsection (j) of this Code
section. A defendant who is found guilty
but mentally ill at the time of the felony or guilty but mentally retarded shall
be committed to an appropriate penal facility and shall be evaluated then
treated, if indicated, within the limits of state funds appropriated therefor,
in such manner as is psychiatrically indicated for his or her mental illness or
mental retardation.
(2)
If at any time following the defendant's conviction as a guilty but mentally ill
or guilty but mentally retarded offender it is determined that a temporary
transfer to the Department of Behavioral Health and Developmental Disabilities
is clinically indicated for his or her mental illness or mental retardation,
then the defendant shall be transferred to the Department of Behavioral Health
and Developmental Disabilities pursuant to procedures set forth in regulations
of the Department of Corrections and the Department of Behavioral Health and
Developmental Disabilities. In all such cases, the legal custody of the
defendant shall be retained by the Department of Corrections. Upon notification
from the Department of Behavioral Health and Developmental Disabilities to the
Department of Corrections that hospitalization at a Department of Behavioral
Health and Developmental Disabilities facility is no longer clinically indicated
for his or her mental illness or mental retardation, the Department of
Corrections shall transfer the defendant back to its physical custody and shall
place such individual in an appropriate penal institution.
(h)
If a defendant who is found guilty but mentally ill at the time of a felony or
guilty but mentally retarded is placed on probation under the 'State-wide
Probation Act,' Article 2 of Chapter 8 of Title 42, the court may require that
the defendant undergo available outpatient medical or psychiatric treatment or
seek similar available voluntary inpatient treatment as a condition of
probation. Persons required to receive such services may be charged fees by the
provider of the services.
(i)
In any case in which the defense of insanity is interposed or a plea of guilty
but mentally ill at the time of the felony or a plea of guilty but mentally
retarded is made and an examination is made of the defendant pursuant to Code
Section 17-7-130.1 or paragraph (2) of subsection (b) of this Code section, upon
the defendant's being found guilty or guilty but mentally ill at the time of the
crime or guilty but mentally retarded, a copy of any such examination report
shall be forwarded to the Department of Corrections with the official sentencing
document. The Department of Behavioral Health and Developmental Disabilities
shall forward, in addition to its examination report, any records maintained by
such department that it deems appropriate pursuant to an agreement with the
Department of Corrections, within ten business days of receipt by the Department
of Behavioral Health and Developmental Disabilities of the official sentencing
document from the Department of Corrections.
(j)
In the trial of any case in which the death penalty is sought which commences on
or after July 1, 1988, should the judge find in accepting a plea of guilty but
mentally retarded or the jury or court find in its verdict that the defendant is
guilty of the crime charged but mentally retarded, the death penalty shall not
be imposed and the court shall sentence the defendant to imprisonment for
life."
SECTION
32.
Said
title is further amended in Code Section 17-7-171, relating to time for speedy
trial in capital cases, discharge and acquittal where no trial held before end
of two court terms of demand, and counting of terms in cases in which death
penalty is sought, by revising subsection (c) as follows:
"(c)
In cases
involving a capital offense for which the death penalty is sought, if a demand
for speedy trial is entered, the counting of terms under subsection (b) of this
Code section shall not begin until the convening of the first term following the
completion of pretrial review proceedings in the Supreme Court under Code
Section 17-10-35.1.
Reserved."
SECTION
33.
Said
title is further amended in Code Section 17-8-4, relating to procedure for trial
of jointly indicted defendants, right of defendants to testify for or against
one another, order of separate trials, acquittal or conviction where offense
requires joint action or concurrence, and number of strikes allowed defendants,
by revising subsection (a) as follows:
"(a)
When two or more defendants are jointly indicted for a
capital
offense, any defendant so electing shall be separately tried unless the state
shall waive the death penalty. When indicted for a capital felony when the
death penalty is waived, or for a felony
less than
capital, or for a misdemeanor, such
defendants may be tried jointly or separately in the discretion of the trial
court. In any event, a jointly indicted defendant may testify for another
jointly indicted defendant or on behalf of the state. When separate trials are
ordered in any case, the defendants shall be tried in the order requested by the
state. If the offense requires joint action and concurrence of two or more
persons, acquittal or conviction of one defendant shall not operate as acquittal
or conviction of others not tried."
SECTION
34.
Said
title is further amended in Code Section 17-8-5, relating to recordation of
testimony in felony cases, entering testimony on minutes of court where guilty
verdict found, preparation of transcript where death sentence imposed, and
preparation of transcript where mistrial results in felony case, by revising
subsection (a) as follows:
"(a)
On the trial of all felonies the presiding judge shall have the testimony taken
down and, when directed by the judge, the court reporter shall exactly and truly
record or take stenographic notes of the testimony and proceedings in the case,
except the argument of counsel. In the event of a verdict of guilty, the
testimony shall be entered on the minutes of the court or in a book to be kept
for that purpose.
In the
event that a sentence of death is imposed, the transcript of the case shall be
prepared within 90 days after the sentence is imposed by the trial court. Upon
petition by the court reporter, the Chief Justice of the Supreme Court of
Georgia may grant an additional period of time for preparation of the
transcript, such period not to exceed 60 days. The requirement that a
transcript be prepared within a certain period in cases in which a sentence of
death is imposed shall not inure to the benefit of a
defendant."
SECTION
35.
Said
title is further amended in Code Section 17-8-31, relating to grounds for
granting of continuances, party, leading attorney, or material witness in
attendance on active duty as member of National Guard or component of armed
forces of the United States, and setting bail in certain cases, by revising
subsection (d) as follows:
"(d)
In any case in which the court grants the state a continuance pursuant to
subsection (c) of this Code section, the defendant shall have bail set upon
application to the court, except in those cases punishable by
death
or imprisonment for life without parole.
In any case in which the defendant is accused of committing a serious violent
felony, as defined by subsection (a) of Code Section 17-10-6.1, the court shall
consider but shall not be required to set bail."
SECTION
36.
Said
title is further amended by revising Code Section 17-8-73, relating to time
limits on closing argument in noncapital and capital felony cases, as
follows:
"17-8-73.
In
felony cases
other than
those involving capital felonies, counsel
shall be limited in their closing arguments to one hour for each side.
In cases
involving capital felonies, counsel shall be limited to two hours for each
side."
SECTION
37.
Said
title is further amended by revising Code Section 17-9-3, relating to
recommendations for mercy in capital cases other than those of homicide, effect
of no recommendation for mercy in capital cases generally, and where defendant
under age of 17 at time of commission of offense, as follows:
"17-9-3.
In
all capital cases, other than those of homicide, when the verdict is 'guilty,'
with a recommendation for mercy, it shall be legal and shall mean imprisonment
for life. When the verdict is 'guilty,' without a recommendation for mercy, it
shall be legal and shall mean that the convicted person shall be sentenced to
death. When it is shown that a person convicted of a capital offense without a
recommendation for mercy had not reached his seventeenth birthday at the time of
the commission of the offense, the punishment of such person shall not be death
but shall be imprisonment for life.
Reserved."
SECTION
38.
Said
title is further amended in Code Section 17-10-1, relating to fixing of
sentence, suspension or probation of sentence, change in sentence, eligibility
for parole, prohibited modifications, and exceptions, by revising paragraph (1)
of subsection (a) as follows:
"(1)
Except in cases in which life
imprisonment,
or
life without
parole, or
the death penalty may be imposed, upon a
verdict or plea of guilty in any case involving a misdemeanor or felony, and
after a presentence hearing, the judge fixing the sentence shall prescribe a
determinate sentence for a specific number of months or years which shall be
within the minimum and maximum sentences prescribed by law as the punishment for
the crime. The judge imposing the sentence is granted power and authority to
suspend or probate all or any part of the entire sentence under such rules and
regulations as the judge deems proper, including service of a probated sentence
in the sentencing options system, as provided by Article 9 of Chapter 8 of Title
42, and including the authority to revoke the suspension or probation when the
defendant has violated any of the rules and regulations prescribed by the court,
even before the probationary period has begun, subject to the conditions set out
in this subsection; provided, however, that such action shall be subject to the
provisions of Code Sections 17-10-6.1 and 17-10-6.2."
SECTION
39.
Said
title is further amended in Code Section 17-10-1.2, relating to oral victim
impact statement, presentation of evidence, cross-examination and rebuttal by
defendant, effect of noncompliance, and no creation of cause of action or right
to appeal, by revising subsection (a) as follows:
"(a)(1)
In all cases in which the death penalty may be imposed, subsequent to an
adjudication of guilt and in conjunction with the procedures in Code Section
17-10-30, the court shall allow evidence from the family of the victim, or such
other witness having personal knowledge of the victim's personal characteristics
and the emotional impact of the crime on the victim, the victim's family, or the
community. Except as provided in paragraph (4) of this subsection, such
evidence shall be given in the presence of the defendant and of the jury and
shall be subject to cross-examination.
(2)
The admissibility of the evidence described in paragraph (1) of this subsection
and the number of witnesses other than immediate family who may testify shall be
in the sole discretion of the judge and in any event shall be permitted only in
such a manner and to such a degree as not to inflame or unduly prejudice the
jury. As used in this paragraph, the term 'immediate family' means the victim's
spouse, child, parent, stepparent, grandparent, grandchild, sibling,
stepbrother, stepsister, mother-in-law, father-in-law, sister-in-law, or
brother-in-law and the spouses of any such individuals.
(3)(1)
In all cases
other than
those in which the death penalty may be
imposed, prior to fixing of the sentence
as provided for in Code Section 17-10-1 or the imposing of life imprisonment as
mandated by law, and before rendering the appropriate sentence, including any
order of restitution, the court shall allow the victim, as such term is defined
in Code Section 17-17-3, the family of the victim, or such other witness having
personal knowledge of the crime to testify about the impact of the crime on the
victim, the family of the victim, or the community. Except as provided in
paragraph
(4)
(2)
of this subsection, such evidence shall be given in the presence of the
defendant and shall be subject to cross-examination. The admissibility of the
testimony and evidence in support of such testimony shall be in the sole
discretion of the judge and in any event shall be permitted only in such a
manner as to allow for cross-examination by the defendant and to such a degree
as not to unduly prejudice the defendant. If the judge excludes the testimony
or evidence in support of such testimony, the state shall be allowed to make a
proffer of such testimony or evidence.
(4)(2)
Upon a finding by the court specific to the case and the witness that the
witness would not be able to testify in person without showing undue emotion or
that testifying in person will cause the witness severe physical or emotional
distress or trauma, evidence presented pursuant to this subsection may be in the
form of, but not limited to, a written statement or a prerecorded audio or video
statement, provided that such witness is subject to cross-examination and the
evidence itself will not be available to the jury during deliberations.
Photographs of the victim may be included with any evidence presented pursuant
to this subsection.
(5)(3)
If the accused has been convicted of a serious violent felony as defined in Code
Section 17-10-6.1, attempted murder or attempted kidnapping, or any violation of
Code Section 16-5-90, 16-5-91, 16-7-82, 16-7-84, or 16-7-86, and the victim or a
representative of the victim is not present at the presentence hearing, it shall
be the duty of the court to inquire of the prosecuting attorney whether or not
the victim has been notified of the presentence hearing as provided in Code
Section 17-17-5. If the court finds that the prosecuting attorney has not made
a reasonable attempt to notify the victim, the presentence hearing shall be
recessed in order to provide the victim the opportunity to attend prior to
sentence being imposed; provided, however, that prior to recessing the
presentence hearing, the court shall allow the state or the accused to call any
witnesses who were subpoenaed and are present at such presentence hearing.
Following any such testimony, the presentence hearing shall be recessed and the
victim shall be notified of the date, time, and location when the presentence
hearing shall resume."
SECTION
40.
Said
title is further amended by revising Code Section 17-10-2, relating to conduct
of presentence hearings in felony cases and effect of reversal for error in
presentence hearing, as follows:
"17-10-2.
(a)(1)
Except in
cases in which the death penalty may be imposed,
upon
Upon
the return of a verdict of 'guilty' by the jury in any felony case, the judge
shall dismiss the jury and shall conduct a presentence hearing at which the only
issue shall be the determination of punishment to be imposed. In the hearing
the judge shall hear additional evidence in extenuation, mitigation, and
aggravation of punishment, including the record of any prior criminal
convictions and pleas of guilty or nolo contendere of the accused, or the
absence of any prior conviction and pleas.
(2)
The judge shall also hear argument by the accused or the accused's counsel and
the prosecuting attorney, as provided by law, regarding the punishment to be
imposed.
Except in
cases where the death penalty may be imposed,
the
The
prosecuting attorney shall open and conclude the argument.
In cases
where the death penalty may be imposed, the prosecuting attorney shall open and
the accused or the accused's counsel shall conclude the argument.
(3)
Upon the conclusion of the evidence and arguments, the judge shall impose the
sentence or shall recess the trial for the purpose of taking the sentence to be
imposed under advisement. The judge shall fix a sentence within the limits
prescribed by law.
(b)
In cases in
which the death penalty may be imposed, the judge, when sitting without a jury,
in addition to the procedure set forth in subsection (a) of this Code section,
shall follow the procedures provided for in Code Section 17-10-30.
(c)
In all cases tried by a jury in which the death penalty may be imposed, upon a
return of a verdict of 'guilty' by the jury, the court shall resume the trial
and conduct a presentence hearing before the jury. The hearing shall be
conducted in the same manner as presentence hearings conducted before the judge
as provided for in subsection (a) of this Code section. Upon the conclusion of
the evidence and arguments, the judge shall give the jury appropriate
instructions, and the jury shall retire to determine whether any mitigating or
aggravating circumstances, as defined in Code Section 17-10-30, exist and
whether to recommend mercy for the accused. Upon the findings of the jury, the
judge shall fix a sentence within the limits prescribed by law.
(d)
If the trial court is reversed on appeal because of error only in the
presentence hearing, the new trial which may be ordered shall apply only to the
issue of punishment."
SECTION
41.
Said
title is further amended in Code Section 17-10-6.1, relating to punishment for
serious violent offenders, by revising subsection (c) as follows:
"(c)(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)(3)
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."
SECTION
42.
Said
title is further amended in Code Section 17-10-7, relating to punishment of
repeat offenders and punishment and eligibility for parole of persons convicted
of fourth felony offense, by revising paragraph (2) of subsection (b) as
follows:
"(2)
Any person who has been convicted of a serious violent felony in this state or
who has been convicted under the laws of any other state or of the United States
of a crime which if committed in this state would be a serious violent felony
and who after such first conviction subsequently commits and is convicted of a
serious violent felony
for which
such person is not sentenced to death
shall be sentenced to imprisonment for life without parole. Any such sentence
of life without parole shall not be suspended, stayed, probated, deferred, or
withheld, and any such person sentenced pursuant to this paragraph shall not be
eligible for any form of pardon, parole, or early release administered by the
State Board of Pardons and Paroles or for any earned time, early release, work
release, leave, or any other sentence-reducing measures under programs
administered by the Department of Corrections, the effect of which would be to
reduce the sentence of life imprisonment without possibility of parole, except
as may be authorized by any existing or future provisions of the
Constitution."
SECTION
43.
Said
title is further amended in Code Section 17-10-9.1, relating to voluntary
surrender to county jail or correctional institution and release of defendant,
by revising subsection (e) as follows:
"(e)
The
provisions of this Code section shall not apply to any defendant convicted of a
capital felony.
Reserved."
SECTION
44.
Said
title is further amended by revising Code Section 17-10-16, relating to sentence
to imprisonment for life without parole authorized and ineligibility for parole
or leave programs, as follows:
"17-10-16.
(a)
Notwithstanding any other provision of law, a person who is convicted of an
offense committed after May 1, 1993, for which the death penalty may be imposed
under the laws of this state may be sentenced to death, imprisonment for life
without parole, or life imprisonment as provided in Article 2 of this
chapter.
(b)
Notwithstanding any other provision of law, any person who is convicted of an
offense for which the death penalty may be imposed and who is sentenced to
imprisonment for life without parole shall not be eligible for any form of
parole during such person's natural life unless the State Board of Pardons and
Paroles or a court of this state shall, after notice and public hearing,
determine that such person was innocent of the offense for which the sentence of
imprisonment for life without parole was imposed. Such person shall not be
eligible for any work release program, leave, or any other program administered
by the Department of Corrections the effect of which would be to reduce the term
of actual imprisonment to which such person was
sentenced.
Reserved."
SECTION
45.
Said
title is further amended by repealing Code Section 17-10-16.1, relating to
seeking death penalty not prerequisite to life without parole
sentence.
SECTION
46.
Said
title is further amended in Chapter 10 by deleting the designation of Article 1
and by repealing Article 2, relating to the death penalty generally, and Article
3, relating to mentally incompetent to be executed.
SECTION
47.
Said
title is further amended in Chapter 11 by deleting the designation of Article 1
and by repealing Article 2.
SECTION
48.
Said
title is further amended by revising paragraph (1) of subsection (b) of Code
Section 17-12-5, relating to the director of the Public Defender Standards
Council, qualifications, selection, salary, and responsibilities, as
follows:
"(1)
The director shall work with and provide support services and programs for
circuit public defender offices and other attorneys representing indigent
persons in criminal or juvenile cases in order to improve the quality and
effectiveness of legal representation of such persons and otherwise fulfill the
purposes of this chapter. Such services and programs shall include, but shall
not be limited to, technical, research, and administrative assistance;
educational and training programs for attorneys, investigators, and other staff;
assistance with the representation of indigent defendants with mental
disabilities; assistance with the representation of juveniles;
assistance
with death penalty cases; and assistance
with appellate advocacy."
SECTION
49.
Said
title is further amended by revising Code Section 17-12-12, relating to the
Georgia capital defender division, duties, responsibilities, and management, as
follows:
"17-12-12.
(a)
The Georgia capital defender division shall represent all indigent persons
charged with a capital felony for which the death penalty is being sought in any
court in this state and shall be the successor to the Office of the Georgia
Capital Defender created by Article 6 of this chapter as it existed on June 30,
2008. Any assets or resources of the Office of the Georgia Capital Defender
shall be transferred to the council. The Georgia capital defender division
shall serve all counties of this state.
(b)
Whenever any person accused of a capital felony for which the death penalty is
being sought has been determined to be an indigent person who has requested the
assistance of counsel, the court in which the charges are pending shall notify
the Georgia capital defender division, and the division shall assume the defense
of such person except as provided in Code Section 17-12-12.1.
(c)
No person shall be assigned the primary responsibility of representing an
indigent person accused of a capital offense for which the death penalty is
sought unless such person is authorized to practice law in this state and is
otherwise competent to counsel and defend a person charged with a capital
felony.
(d)
The Georgia capital defender division or appointed counsel's defense of a
defendant in a case in which the death penalty is sought shall include all
proceedings in the trial court and any appeals to the Supreme Court of Georgia.
Neither the Georgia capital defender division nor appointed counsel shall assist
with any petition for a writ of habeas corpus in federal court.
(e)
The director shall be responsible for management of the Georgia capital defender
division; provided, however, that the director may delegate day-to-day
operations of the division to the capital
defender.
Reserved."
SECTION
50.
Said
title is further amended by repealing Code Section 17-12-12.1, relating to
payment of attorney in event of conflict of interest in capital cases, number of
attorneys appointed, county governing authority's financial responsibility, and
expenses.
SECTION
51.
Said
title is further amended by revising Code Section 17-13-34, relating to arrest
without warrant of a person charged with a crime in another state, as
follows:
"17-13-34.
The
arrest of a person may be lawfully made by any peace officer or private person,
without a warrant, upon reasonable information that the accused stands charged
in the courts of a state with a crime punishable by
death
or imprisonment for a term exceeding one
year, but when so arrested, the accused must be taken before a judge or
magistrate with all practicable speed and complaint must be made against him
or
her under oath, setting forth the ground
for the arrest, as provided in Code Section 17-13-33; and thereafter the answer
of the accused shall be heard as if he
or
she had been arrested on a
warrant."
SECTION
52.
Said
title is further amended by revising Code Section 17-13-36, relating to granting
of bail, as follows:
"17-13-36.
Unless
the offense with which the prisoner is charged is shown to be an offense
punishable by
death
or life imprisonment under the laws of the
state in which it was committed, a judge or magistrate in this state may admit
the prisoner to bail by bond, with sufficient sureties, in such sum as he
or
she deems proper, conditioned for the
prisoner's appearance before the judge or magistrate at a time specified in such
bond and for the prisoner's surrender to be arrested upon the warrant of the
Governor of this state."
SECTION
53.
Said
title is further amended by revising Code Section 17-16-2, relating to
applicability of article, as follows:
"17-16-2.
(a)
This article shall apply to all criminal cases in which at least one felony
offense is charged in the event that at or prior to arraignment, or at such time
as the court permits, the defendant provides written notice to the prosecuting
attorney that such defendant elects to have this article apply to the
defendant's case. When one defendant in a multidefendant case demands discovery
under this article, the provisions of this article shall apply to all defendants
in the case, unless a severance is granted.
(b)
Except as provided in subsection (c) of this Code section, this article shall
not apply to juvenile court proceedings.
(c)
This article shall be deemed to have been automatically invoked, without the
written notice provided for in subsection (a) of this Code section, when a
defendant has sought discovery pursuant to Chapter 11 of Title 9, the 'Georgia
Civil Practice Act,' pursuant to Code Section 15-11-75, or pursuant to the
Uniform Rules for the Juvenile Courts of Georgia where such discovery material
is the same as the discovery material that may be provided under this article
when a written notice is filed pursuant to subsection (a) of this Code
section.
(d)
Except as provided under Code Section 17-16-8, this article is not intended to
authorize discovery or inspection of attorney work product.
(e)
This article shall apply also to all criminal cases in which at least one felony
offense is charged which was docketed, indicted, or in which an accusation was
returned prior to January 1, 1995, if both the prosecuting attorney and the
defendant agree in writing that the provisions of this article shall apply to
the case.
(f)
Except as provided in paragraph (3) of subsection (b) of Code Section 17-16-4,
if a defendant has elected to have the provisions of this article apply, the
provisions of this article shall also apply to sentencing hearings and the
sentencing phase of a death penalty
trial."
SECTION
54.
Said
title is further amended by revising Code Section 17-17-12, relating to
notification to victim of accused's motion for new trial, as
follows:
"17-17-12.
(a)
Upon the written request of the victim, the prosecuting attorney shall notify
the victim of the following:
(1)
That the accused has filed a motion for new trial, an appeal of his or her
conviction, or an extraordinary motion for new trial;
(2)
Whether the accused has been released on bail or other recognizance pending the
disposition of the motion or appeal;
(3)
The time and place of any appellate court proceedings relating to the motion or
appeal and any changes in the time or place of those proceedings;
and
(4)
The result of the motion or appeal.
(b)
The Attorney General shall notify the prosecuting attorney of the filing of
collateral attacks on convictions of this state which are being defended by the
Attorney General.
(b.1)
In cases in which the accused is convicted of a capital offense and receives the
death penalty, the Attorney General shall:
(1)
Notify the prosecuting attorney and upon the written request of the victim
notify the victim of the filing and disposition of all collateral attacks on
such conviction which are being defended by the Attorney General, including, but
not limited to, petitions for a writ of habeas corpus, and the time and place of
any such proceedings and any changes in the time or place of those proceedings;
and
(2)
Provide the prosecuting attorney and upon the written request of the victim
provide the victim with a report on the status of all pending appeals,
collateral attacks, and other litigation concerning such conviction which is
being defended by the Attorney General at least every six months until the
accused dies or the sentence or conviction is overturned or commuted or
otherwise reduced to a sentence other than the death penalty.
(c)
In the event the accused is granted a new trial or the conviction is reversed or
remanded and the case is returned to the trial court for further proceedings,
the victim shall be entitled to request the rights and privileges provided by
this chapter."
SECTION
55.
Title
24 of the Official Code of Georgia Annotated, relating to evidence, is amended
by revising Code Section 24-9-84.1, relating to how witnesses are impeached and
prior convictions, as follows:
"24-9-84.1.
(a)
General
rule. For the purpose of attacking the
credibility of a witness, or of the defendant, if the defendant
testifies:
(1)
Evidence that a witness has been convicted of a crime shall be admitted if the
crime was punishable by
death
or imprisonment of one year or more under
the law under which the witness was convicted if the court determines that the
probative value of admitting the evidence outweighs its prejudicial effect to
the witness;
(2)
Evidence that the defendant has been convicted of a crime shall be admitted if
the crime was punishable by
death
or imprisonment of one year or more under
the law under which the defendant was convicted if the court determines that the
probative value of admitting the evidence substantially outweighs its
prejudicial effect to the defendant; and
(3)
Evidence that any witness or the defendant has been convicted of a crime shall
be admitted if it involved dishonesty or making a false statement, regardless of
the punishment that could be imposed for such offense.
(b)
Time
limit. Evidence of a conviction under
subsection (a) of this Code section is not admissible if a period of more than
ten years has elapsed since the date of the conviction or of the release of the
witness or the defendant from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the interest of
justice, that the probative value of the conviction supported by specific facts
and circumstances substantially outweighs its prejudicial effect. However,
evidence of a conviction more than ten years old, as calculated in this
subsection, is not admissible unless the proponent gives to the adverse party
sufficient advance written notice of intent to use such evidence to provide the
adverse party with a fair opportunity to contest the use of such
evidence.
(c)
Effect of pardon or
annulment. Evidence of a conviction is
not admissible under this Code section if:
(1)
The conviction has been the subject of a pardon or annulment based on a finding
of the rehabilitation of the person convicted and such person has not been
convicted of a subsequent crime that was punishable by
death
or imprisonment for one year or more;
or
(2)
The conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(d)
Juvenile
adjudications. An adjudication of
delinquency in juvenile court shall be inadmissible against a defendant in a
criminal case. An adjudication of delinquency in juvenile court shall be
presumed to be inadmissible against a witness in a criminal case; however, this
presumption may be rebutted only if it is shown that:
(1)
The factual basis for the proven allegations of delinquency would have
constituted a crime under the laws of the state of the juvenile court if
committed by an adult at the time they were committed by the
juvenile:
(2)
The probative value of the evidence substantially outweighs the prejudicial
effect of its admission; and
(3)
The court finds that admission of the adjudication into evidence is necessary
for a fair determination of the issue of guilt or innocence of the
defendant.
(e)
Pendency of
appeal. The pendency of an appeal from a
conviction does not render evidence of a conviction inadmissible. Evidence of
the pendency of an appeal shall be admissible."
SECTION
56.
Said
title is further amended by revising Code Section 24-10-60, relating to order
requiring prisoner's delivery to serve as witness or criminal defendant
generally, expenses, and prisoner under death sentence as witness, as
follows:
"24-10-60.
(a)
When a prisoner confined in any state prison, county correctional institution,
or other penal institution under the jurisdiction of the Board of
Corrections,
other than a prisoner under a death
sentence, is needed as a witness in any
civil or criminal proceeding in any court of record in this state or when it is
desired that such person stand trial on an indictment or accusation charging him
or
her with commission of a felony or
misdemeanor, the judge of the court wherein the proceeding is pending is
authorized to and shall issue an ex parte order, directed to the Board of
Corrections, requiring his
or
her delivery to the sheriff of the county
where the prisoner is desired as a witness or defendant. The sheriff or
his
sheriff's
deputies shall take custody of the prisoner on the date named in the order,
safely keep him
or
her pending the proceeding, and shall
return
him
the
prisoner to the original place of
detention after his
or
her discharge by the trial
judge.
(b)
If the prisoner was desired as a witness by the state in a criminal proceeding
or if the prisoner's release to the sheriff was for the purpose of standing
trial on criminal charges, the county wherein the case was pending shall pay all
expenses of transportation and keeping, including per diem and mileage of the
sheriff, jail fees, and any other proper expense approved by the trial
judge.
(c)
If the prisoner was desired as a witness by the defendant in a criminal
proceeding, or by either party to a civil proceeding, the costs and expenses
referred to in subsection (b) of this Code section shall be borne by the person
requesting the prisoner as a witness. The court shall require a deposit of
money sufficient to defray same, except where the judge, after examining into
the matter, determines that the prisoner's presence is required by the ends of
justice and that the party requesting it is financially unable to make the
deposit, in which case the expenses shall be taxed as costs of
court.
(d)
If a prisoner under a death sentence is needed as a witness for either the
prosecution or the defense in any felony case, the requesting party may
interview the proposed witness. Following such interview, the requesting party
may move for a writ of habeas corpus ad testificandum. Such motion shall be
accompanied by a proffer of the testimony of the proposed witness. The
requesting party shall make such motion and proffer as soon as possible but
shall not make such motion later than 20 days prior to the date of the trial.
Nothing in this Code section shall limit the right of a party from presenting a
material witness at a hearing or trial and to have compulsory process for that
purpose."
SECTION
57.
Said
title is further amended in Code Section 24-10-93, relating to criminal or grand
jury proceedings in foreign state, certificate of need for prisoner's testimony,
hearing, order and conditions, entry of order by judge in requesting state, and
applicability, by revising subsection (d) as follows:
(d)
This Code section does not apply to any person in this state confined as insane
or mentally ill
or under
sentence of death."
SECTION
58.
Title
42 of the Official Code of Georgia Annotated, relating to penal institutions, is
amended by revising Code Section 42-1-3, relating to defendant sentenced to
death or life imprisonment not to be made trusty during time case on appeal and
manner of confinement of defendant, as follows:
"42-1-3.
Any
defendant who has been convicted of a felony and sentenced to
death
or life imprisonment shall not be made a
trusty at any penal institution or facility in this state during the time that
his or
her case is on appeal. The defendant
shall be confined in the same manner as other prisoners."
SECTION
59.
Said
title is further amended by revising Code Section 42-5-20, relating to Alcohol
or Drug Use Risk Reduction Program, as follows:
"42-5-20.
The
department shall provide within the correctional system an Alcohol or Drug Use
Risk Reduction Program. The program shall be made available to every person
sentenced to the custody of the state whose criminal offense or history
indicates alcohol or drug involvement; provided, however, that the provisions of
this Code section shall not apply to a person who has been
sentenced
to the punishment of death or those deemed
mentally incompetent."
SECTION
60.
Said
title is further amended by revising Code Section 42-5-21, relating to Family
Violence Counseling Program, as follows:
"42-5-21.
The
department shall provide within the correctional system a Family Violence
Counseling Program. The program shall be made available to every person
sentenced to the custody of the state who committed an offense which has been
identified to involve family violence as such term is defined in Code Section
19-13-1; provided, however, that the provisions of this Code section shall not
apply to a person who has been
sentenced
to the punishment of death or to those
deemed mentally incompetent."
SECTION
61.
Said
title is further amended in Code Section 42-5-51, relating to jurisdiction over
certain misdemeanor offenders, designation of place of confinement of inmates,
reimbursement of county, and transfer of inmates to federal authority, by
revising subsection (c) as follows:
"(c)
After proper documentation is received from the clerk of the court, the
department shall have 15 days to transfer an inmate under sentence to the place
of confinement. If the inmate is not transferred within the 15 days, the
department shall reimburse the county, in a sum not less than $7.50 per day per
inmate and in such an amount as may be appropriated for this purpose by the
General Assembly, for the cost of the incarceration, commencing 15 days after
proper documentation is received by the department from the clerk of the court;
provided, however, that, subject to an appropriation of funds, local governing
authorities that have entered into memorandums of understanding or agreement or
that demonstrate continuous attempts to enter into memorandums of understanding
or agreement with the federal government under Section 287(g) of the federal
Immigration and Nationality Act shall receive an additional payment in the
amount of 10 percent of the established rate paid for reimbursement for the
confinement of state inmates in local confinement facilities. The reimbursement
provisions of this Code section shall only apply to payment for the
incarceration of felony inmates available for transfer to the
department,
except inmates under death sentence awaiting transfer after their initial
trial, and shall not apply to inmates who
were incarcerated under the custody of the commissioner at the time they were
returned to the county jail for trial on additional charges or returned to the
county jail for any other purposes, including for the purpose of a new
trial."
SECTION
62.
Said
title is further amended in Code Section 42-5-85, relating to leave privileges
of inmates serving murder sentences, by revising subsection (a) as
follows:
"(a)
As used in this Code section only, the term 'aggravating circumstance' means
that:
(1)
The murder
was committed by a person with a prior record of conviction for a capital
felony;
Reserved;
(2)
The murder was committed while the offender was engaged in the commission of
another
capital felony, aggravated battery,
burglary, or arson in the first degree;
(3)
The offender, by his
or
her act of murder, knowingly created a
great risk of death to more than one person in a public place by means of a
weapon or device which would normally be hazardous to the lives of more than one
person;
(4)
The offender committed the murder for
himself,
herself, or another, for the purpose of
receiving money or any other thing of monetary value;
(5)
The murder of a judicial officer, former judicial officer, district attorney or
solicitor-general, or former district attorney, solicitor, or solicitor-general
was committed during or because of the exercise of his or her official
duties;
(6)
The offender caused or directed another to commit murder or committed murder as
an agent or employee of another person;
(7)
The murder was outrageously or wantonly vile, horrible, or inhuman in that it
involved torture, depravity of mind, or an aggravated battery to the
victim;
(8)
The murder was committed against any peace officer, corrections employee, or
firefighter while engaged in the performance of his
or
her official duties;
(9)
The murder was committed by a person in, or who has escaped from, the lawful
custody of a peace officer or place of lawful confinement; or
(10)
The murder was committed for the purpose of avoiding, interfering with, or
preventing a lawful arrest or custody in a place of lawful confinement of
himself,
herself, or another."
SECTION
63.
Said
title is further amended by revising Code Section 42-7-2, relating to
definitions regarding treatment of youthful offenders, as follows:
"42-7-2.
As
used in this chapter, the term:
(1)
'Board' means the Board of Corrections.
(2)
'Commissioner' means the commissioner of corrections.
(3)
'Conviction' means a judgment on a verdict or finding of guilty, a plea of
guilty, or a plea of nolo contendere in a felony case but excludes all judgments
upon criminal offenses for which the maximum punishment provided by law is
death
or life imprisonment.
(4)
'Court' means any court of competent jurisdiction other than a juvenile
court.
(5)
'Department' means the Department of Corrections.
(6)
'Treatment' means corrective and preventative incarceration, guidance, and
training designed to protect the public by correcting the antisocial tendencies
of youthful offenders, which may include but is not limited to vocational,
educational, and other training deemed fit and necessary by the
department.
(7)
'Youthful offender' means any male offender who is at least 17 but less than 25
years of age at the time of conviction and who in the opinion of the department
has the potential and desire for rehabilitation."
SECTION
64.
Said
title is further amended in Code Section 42-8-34, relating to hearings and
determinations, referral of cases to probation supervisors, probation or
suspension of sentence, payment of fine or costs, disposition prior to hearing,
continuing jurisdiction, transferal of probation supervision, and probation
fee, by revising subsection (a) as follows:
"(a)
Any court of this state which has original jurisdiction of criminal actions,
except juvenile courts, municipal courts, and probate courts, in which the
defendant in a criminal case has been found guilty upon verdict or plea or has
been sentenced upon a plea of nolo contendere, except for an offense punishable
by death
or life imprisonment, may, at a time to be
determined by the court, hear and determine the question of the probation of
such defendant."
SECTION
65.
Said
title is further amended by revising Code Section 42-9-20, relating to general
duties of the State Board of Pardons and Paroles, as follows:
"42-9-20.
In
all cases in which the chairman of the board or any other member designated by
the board has suspended the execution of a death sentence to enable the full
board to consider and pass on same, it shall be mandatory that the board act
within a period not exceeding 90 days from the date of the suspension order. In
the cases which the board has power to consider, the board shall be charged with
the duty of determining which inmates serving sentences imposed by a court of
this state may be released on pardon or parole and fixing the time and
conditions thereof. The board shall also be charged with the duty of
supervising all persons placed on parole, of determining violations thereof and
of taking action with reference thereto, of making such investigations as may be
necessary, and of aiding parolees or probationers in securing employment. It
shall be the duty of the board personally to study the cases of those inmates
whom the board has power to consider so as to determine their ultimate fitness
for such relief as the board has power to grant. The board by an affirmative
vote of a majority of its members shall have the power to commute a sentence of
death to one of life imprisonment.
Reserved."
SECTION
66.
Said
title is further amended in Code Section 42-9-42, relating to procedure for
granting relief from sentence, conditions and prerequisites, and violation of
parole, by revising subsection (a) as follows:
"(a)
No person shall be granted clemency, pardon, parole, or other relief from
sentence except by a majority vote of the board.
A majority
of the members of the board may commute a death sentence to life imprisonment,
as provided in Code Section
42-9-20."
SECTION
67.
Title
24 of the Official Code of Georgia Annotated, relating to evidence, is amended
by revising Code Section 24-6-609, relating to impeachment by evidence of
conviction of a crime, as follows:
"24-6-609.
(a)
General
rule. For the purpose of attacking the
character for truthfulness of a witness:
(1)
Evidence that a witness other than an accused has been convicted of a crime
shall be admitted subject to the provisions of Code Section 24-4-403 if the
crime was punishable by
death
or imprisonment in excess of one year
under the law under which the witness was convicted and evidence that an accused
has been convicted of such a crime shall be admitted if the court determines
that the probative value of admitting the evidence outweighs its prejudicial
effect to the accused; or
(2)
Evidence that any witness has been convicted of a crime shall be admitted
regardless of the punishment, if it readily can be determined that establishing
the elements of such crime required proof or admission of an act of dishonesty
or making a false statement.
(b)
Time
limit. Evidence of a conviction under
this Code section shall not be admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of the witness from
the confinement imposed for such conviction, whichever is the later date, unless
the court determines, in the interests of justice, that the probative value of
the conviction supported by specific facts and circumstances substantially
outweighs its prejudicial effect. However, evidence of a conviction more than
ten years old, as calculated in this subsection, shall not be admissible unless
the proponent gives to the adverse party sufficient advance written notice of
intent to use such evidence to provide the adverse party with a fair opportunity
to contest the use of such evidence.
(c)
Effect of pardon,
annulment, certificate of rehabilitation, or discharge from a first offender
program. Evidence of a final adjudication
of guilt and subsequent discharge under any first offender statute shall not be
used to impeach any witness and evidence of a conviction shall not be admissible
under this Code section if:
(1)
The conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been convicted
of a subsequent crime which was punishable by
death
or imprisonment in excess of one year;
or
(2)
The conviction has been the subject of a pardon, annulment, or other equivalent
procedure based on a finding of innocence.
(d)
Nolo contendere pleas
and juvenile adjudications. A conviction
based on a plea of nolo contendere shall not be admissible to impeach any
witness under this Code section. Evidence of juvenile adjudications shall not
generally be admissible under this Code section. The court may, however, in a
criminal proceeding allow evidence of a juvenile adjudication of a witness other
than the accused if conviction of the offense would be admissible to attack the
credibility of an adult and the court is satisfied that admission in evidence is
necessary for a fair determination of the issue of guilt or innocence of the
accused.
(e)
Pendency of
appeal. The pendency of an appeal shall
not render evidence of a conviction inadmissible. Evidence of the pendency of
an appeal shall be admissible."
SECTION
68.
Said
title is further amended by revising Code Section 24-13-60, relating to order
requiring prisoner's delivery to serve as witness or criminal defendant
generally, expenses, and prisoner under death sentence as witness, as
follows:
"24-13-60.
(a)
When a prisoner confined in any state prison, county correctional institution,
or other penal institution under the jurisdiction of the Board of
Corrections,
other than a prisoner under a death
sentence, is needed as a witness in any
judicial proceeding in any court of record in this state or when it is desired
that such person stand trial on an indictment or accusation charging the
prisoner with commission of a felony or misdemeanor, the judge of the court
wherein the proceeding is pending shall be authorized to and shall issue an ex
parte order, directed to the commissioner of corrections, requiring the
prisoner's delivery to the sheriff of the county where the prisoner is desired
as a witness or accused. The sheriff or his or her deputies shall take custody
of the prisoner on the date named in the order, safely keep the prisoner pending
the proceeding, and return him or her to the original place of detention after
the prisoner's discharge by the trial judge.
(b)
If the prisoner was desired as a witness by this state in a criminal proceeding
or if the prisoner's release to the sheriff was for the purpose of standing
trial on criminal charges, the county wherein the proceeding was pending shall
pay all expenses of transportation and keeping, including per diem and mileage
of the sheriff, jail fees, and any other proper expense approved by the trial
judge.
(c)
If the prisoner was desired as a witness by the accused in a criminal proceeding
or by either party to a civil proceeding, the costs and expenses referred to in
subsection (b) of this Code section shall be borne by the party requesting the
prisoner as a witness. The court shall require a deposit of money sufficient to
defray same, except where the judge, after examining into the matter, determines
that the prisoner's presence is required by the interests of justice and that
the party requesting it is financially unable to make the deposit, in which case
the expenses shall be taxed as costs of court.
(d)
If a prisoner under a death sentence is needed as a witness for either the
prosecution or the defense in any felony case, the requesting party may
interview the proposed witness. Following such interview, the requesting party
may move for a writ of habeas corpus ad testificandum. Such motion shall be
accompanied by a proffer of the testimony of the proposed witness. The
requesting party shall make such motion and proffer as soon as possible but
shall not make such motion later than 20 days prior to the date of the trial.
Nothing in this Code section shall limit the right of a party from presenting a
material witness at a hearing or trial and to have compulsory process for that
purpose."
SECTION
69.
Said
title is further amended in Code Section 24-13-93, relating to criminal or grand
jury proceedings in foreign state, certificate of need for prisoner's testimony,
hearing, order, conditions, and entry of order by judge in requesting state, and
applicability, by revising subsection (d) as follows:
"(d)
This Code section shall not apply to any person in this state confined as insane
or mentally ill
or under
sentence of death."
SECTION
70.
Title
42 of the Official Code of Georgia Annotated is amended by revising Code Section
42-5-64, relating to educational programming, as follows:
"42-5-64.
(a)
The commissioner shall maintain an educational program within the state prison
system to assist inmates in achieving at least a fifth-grade level on
standardized reading tests. Inmates who test below the fifth-grade level and
who have been sentenced to incarceration for a period of one year or longer
shall be required by institutional staff to attend appropriate classes until
they attain this level or until they are released from incarceration, whichever
event occurs first; provided, however, that inmates who have remained in the
educational program for 90 school days may voluntarily withdraw thereafter. The
commissioner or his designee shall have the discretion to exclude certain
inmates from the provisions of this subsection due to the inability of such
inmates to benefit from an educational program for reasons which may include:
custody
status,
particularly of those inmates under a death
sentence; mental handicap or physical
illness; participation in a boot camp program; or possession of a general
education diploma or high school diploma. The State Board of Pardons and
Paroles shall incorporate satisfactory participation in such an educational
program into the parole guidelines adopted pursuant to Code Section
42-9-40.
(b)
For the purposes of this Code section, educational programming shall not apply
to inmates who:
(1)
Have been
sentenced to death;
(2)
Have attained 50 years of age; or
(3)(2)
Have serious learning disabilities.
(c)
The commissioner shall provide additional educational programs in which inmates
can voluntarily participate to further their education beyond the fifth-grade
level.
(d)
The commissioner shall utilize available services and programs within the
Department of Education, and the Department of Education shall cooperate with
the commissioner in the establishment of educational programs and the testing of
inmates as required in this Code section.
(e)
The commissioner shall be authorized to promulgate rules and regulations
necessary to carry out the provisions of this Code section."
SECTION
71.
Sections
67, 68, and 69 of this Act shall become effective on January 1, 2013. Section
70 of this Act shall become effective only when funds are specifically
appropriated for purposes of such section in an appropriations Act making
specific reference to this Act. The remaining sections of this Act shall become
effective upon its approval by the Governor or upon its becoming law without
such approval.
SECTION
72.
All
laws and parts of laws in conflict with this Act are repealed.
