CopyCited 24 times | Published | Supreme Court of Georgia | Jun 28, 2019 | 306 Ga. 315
...-part statute; it recited the language of the statute that sets out the elements of the charged offenses and alleged the facts necessary to establish a violation of the relevant statutes. Id.
(c) Moreover, Budhani's argument also fails because OCGA §
16-13-50 (a) confirms that the exceptions listed in OCGA §
16-13-25 (12) are affirmative defenses-not elements of the crime-and, as a result, the State is not required to allege them in the indictment.4 To that end, OCGA §
16-13-50 (a), which sets out the burden of proof for exceptions and exemptions contained in the Controlled Substances Act, provides in pertinent part that "[i]t is not necessary for the state to negate any exemption or exception in this article in...
...iming it."5 Id. The phrase "this article" references Article 2 of Chapter 13 in Title 16 (the Georgia Controlled Substances Act), which contains the two Code sections under which **322Budhani was indicted: OCGA §§
16-13-25 and
16-13-30. Thus, OCGA §
16-13-50 plainly provides that, where, as here, an indictment is brought under the Controlled Substances Act, the State is not required to allege in the indictment applicable statutory exceptions to the crimes charged.
This conclusion finds support in case law....
...fatally defective because it failed to allege that he "was not a licensed pharmacist and thus legally entitled to sell marijuana under certain conditions" and instead concluded that the statutory exception amounted "to an affirmative defense ( OCGA §
16-13-50 ), with the initial burden of producing evidence to support the affirmative defense resting upon the defendant." Id....
...of coming forth with evidence to support those defenses. Adams ,
288 Ga. at 697,
707 S.E.2d 359. But whether those affirmative defenses are available at trial is a distinct issue from what the State is required to allege in the indictment, and OCGA §
16-13-50 (a) makes clear that the State was not required to allege in Budhani's indictment the affirmative defenses enumerated in OCGA §
16-13-25 (12)....
...iew after investigators' promises of no additional charges was harmless. See McKelvin v. State ,
305 Ga. 39, 45,
823 S.E.2d 729 (2019).
Judgment affirmed.
All the Justices concur.
We note that the parties did not argue for the application of OCGA §
16-13-50 in the trial court, and that the Court of Appeals did not reference that statute in its opinion.
We interpret the current and prior versions of OCGA §
16-13-50 as shifting only the burden of production to a defendant....
...That burden is distinct from the burden of persuasion on an element of an offense, which-if shifted to a defendant-could be unconstitutional. See Strong v. State ,
246 Ga. 612, 616,
272 S.E.2d 281 (1980) (holding that a prior, but substantively similar, version of OCGA §
16-13-50 was not facially unconstitutional but could be unconstitutional as applied if the trial court used it to shift the burden of persuasion of an element of the crime to the defendant); Adams v....
...knowledging that the appellant's motion was untimely and "not subject to appellate review." May ,
179 Ga. App. at 737,
348 S.E.2d 61.
Our conclusion reflects the common-sense legislative judgment, reflected in the General Assembly's passage of OCGA §
16-13-50 (a), that the State should not be required to allege the inapplicability of statutory exceptions, which in many instances amounts to being required to prove a negative....
CopyPublished | Supreme Court of Georgia | Jun 28, 2019
...section or a broad, multi-part statute; it recited the language of the
statute that sets out the elements of the charged offenses and
alleged the facts necessary to establish a violation of the relevant
statutes. Id.
(c) Moreover, Budhani’s argument also fails because OCGA
§
16-13-50 (a) confirms that the exceptions listed in OCGA § 16-13-
25 (12) are affirmative defenses — not elements of the crime — and,
as a result, the State is not required to allege them in the
indictment.4 To that end, OCGA §
16-13-50 (a), which sets out the
burden of proof for exceptions and exemptions contained in the
Controlled Substances Act, provides in pertinent part that “[i]t is not
necessary for the state to negate any exemption or exception in this
article in any complaint, accusation, indictment, or other pleading
or in any trial, hearing, or other proceeding under this article.” Id.
4 We note that the parties did not argue for the application of OCGA
§
16-13-50 in the trial court, and that the Court of Appeals did not reference
that statute in its opinion.
15
(emphasis supplied)....
...it.”5 Id.
The phrase “this article” references Article 2 of Chapter 13 in Title
16 (the Georgia Controlled Substances Act), which contains the two
Code sections under which Budhani was indicted: OCGA §§ 16-13-
25 and
16-13-30. Thus, OCGA §
16-13-50 plainly provides that
where, as here, an indictment is brought under the Controlled
Substances Act, the State is not required to allege in the indictment
applicable statutory exceptions to the crimes charged.
5 We interpret the current and prior versions of OCGA §
16-13-50 as
shifting only the burden of production to a defendant....
...That burden is distinct
from the burden of persuasion on an element of an offense, which — if shifted
to a defendant — could be unconstitutional. See Strong v. State,
246 Ga. 612,
616 (272 SE2d 281) (1980) (holding that a prior, but substantively similar,
version of OCGA §
16-13-50 was not facially unconstitutional but could be
unconstitutional as applied if the trial court used it to shift the burden of
persuasion of an element of the crime to the defendant); Adams v....
...fatally defective because it failed to allege that he “was not a licensed
pharmacist and thus legally entitled to sell marijuana under certain
conditions” and instead concluded that the statutory exception
amounted “to an affirmative defense (OCGA §
16-13-50), with the
initial burden of producing evidence to support the affirmative
defense resting upon the defendant.” Id....
...OCGA §
16-13-25 (12) are affirmative defenses that the State is not
required to allege in an indictment.8 As a result, a criminal
8 Our conclusion reflects the common-sense legislative judgment,
reflected in the General Assembly’s passage of OCGA §
16-13-50 (a), that the
State should not be required to allege the inapplicability of statutory
exceptions, which in many instances amounts to being required to prove a
20
defendant may raise the three exceptio...
...bear the initial burden of coming forth with evidence to support
those defenses. Adams,
288 Ga. at 697. But whether those
affirmative defenses are available at trial is a distinct issue from
what the State is required to allege in the indictment, and OCGA
§
16-13-50 (a) makes clear that the State was not required to allege
in Budhani’s indictment the affirmative defenses enumerated in
OCGA §
16-13-25 (12)....
