TITLE 17 CRIMINAL PROCEDURE

Section 10. Sentence and Punishment, 17-10-1 through 17-10-71.

ARTICLE 1 PROCEDURE FOR SENTENCING AND IMPOSITION OF PUNISHMENT

17-10-1.1. Judicial consideration of victim impact statement; form document; manner of rebuttal; effect of noncompliance; no creation of cause of action or right of appeal.

A prosecuting attorney bringing charges against a defendant shall notify, where practical, the alleged victim or, when the victim is no longer living, a member of the victim's family of his or her right to submit a victim impact form.
1. A victim impact form shall identify the victim of the offense and the perpetrator.
2. A victim impact form may itemize any economic loss suffered by the victim as a result of the offense and may:
  1. Identify any physical injury suffered by the victim as a result of the offense along with its seriousness and permanence;
  2. Describe any change in the victim's personal welfare or familial relationships as a result of the offense; and
  3. Contain any other information related to the impact of the offense upon the victim or the victim's family that the victim wishes to include.
The Prosecuting Attorneys' Council of Georgia shall establish forms which are designed to obtain the information specified by subsection (b) of this Code section. The Prosecuting Attorneys' Council of Georgia shall make copies of such form available to prosecuting attorneys in the state. It shall be the duty of the prosecuting attorney or his or her designee to make such forms available to crime victims.
The victim may complete a victim impact form and submit such form to the appropriate prosecuting attorney charged with the prosecution of the case. If the victim is unable to do so because of such victim's mental, emotional, or physical incapacity, or because of such victim's age, the victim's attorney or a family member may complete the victim impact form on behalf of the victim.
1. If, prior to trial, the defendant engages in discussion with the prosecuting attorney for the purpose of reaching a plea agreement or other pretrial disposition of his or her case, the prosecuting attorney shall, upon the request of the defendant, provide the defendant with a copy of the victim impact form relating to the defendant's case within a reasonable time prior to such discussions.
2. If the prosecuting attorney intends to present information from a victim impact form to the court at any hearing at which sentencing or a determination of restitution will be considered by the court, the prosecuting attorney shall furnish a copy of the victim impact form to the defendant not less than five days prior to any such hearing. The defendant shall have the right to rebut the information contained in the victim impact form.
3. The court shall consider the victim impact form that is presented to the court prior to imposing a sentence or making a determination as to the amount of restitution.
If for any reason a victim was not allowed an opportunity to make a written victim impact statement, the victim may submit a victim impact statement to the State Board of Pardons and Paroles in any case prior to consideration of parole.
No sentence shall be invalidated because of failure to comply with the provisions of this Code section. This Code section shall not be construed to create any cause of action or any right of appeal on behalf of any person.

(Code 1981, §17-10-1.1, enacted by Ga. L. 1985, p. 739, § 1; Ga. L. 1992, p. 2419, § 2; Ga. L. 1993, p. 1660, § 1; Ga. L. 2005, p. 88, § 3/HB 172.)

Editor's notes.

- Ga. L. 2005, p. 88, § 1/HB 172, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Crime Victims Restitution Act of 2005.'"

Law reviews.

- For article, "The Defense Lawyer's Role in the Sentencing Process: You've Got to Accentuate the Positive and Eliminate the Negative," see 37 Mercer L. Rev. 981 (1986). For note on 1993 amendment of this Code section, see 10 Ga. St. U.L. Rev. 113 (1993). For case comment, "Booth v. Maryland: Admissibility of Victim Impact Statements During Sentencing Phase of Capital Murder Trials," see 21 Ga. L. Rev. 1191 (1987).

JUDICIAL DECISIONS

Resentencing not required for reference to bitterness.

- Fact that the mother of the victim felt that she was not bitter but that the defendant should serve some time does not constitute an instance of witness' testimony or prosecutor's remarks "so infect[ing] the sentencing proceeding as to render it fundamentally unfair" as to require resentencing. Bell v. State, 203 Ga. App. 109, 416 S.E.2d 344, cert. denied, 203 Ga. App. 905, 416 S.E.2d 344 (1992).

Prosecutor failed to disclose statement.

- Although the prosecutor failed to disclose the statement of the victim's mother to the defendant prior to the hearing, this will not invalidate the sentence. Bell v. State, 203 Ga. App. 109, 416 S.E.2d 344 (1992), cert. denied, 203 Ga. App. 905, 416 S.E.2d 344 (1992).

Harmless error to discuss medical care of victim's daughter.

- Prosecutor's comments during closing argument regarding the victim's family and the fact that the victim's daughter no longer had a father to provide the daughter with medical care may have amounted to impermissible victim impact evidence, but the reviewing court found it highly improbable that the challenged argument contributed to the judgment; the reviewing court found that particularly true in view of the fact that evidence that the victim had moved to the U.S. to procure better medical treatment for the daughter who had flat feet was admitted without objection at trial. Anaya-Plasencia v. State, 283 Ga. App. 728, 642 S.E.2d 401 (2007).

RESEARCH REFERENCES

ALR.

- Victim impact evidence in capital sentencing hearings - post-Payne v. Tennessee, 79 A.L.R.5th 33.

Admissibility of victim impact evidence in noncapital state proceedings, 8 A.L.R.7th 6.

Cases Citing Georgia Code 17-10-1.1 From Courtlistener.com
Total Results: 4
Carruthers v. State
Court: Supreme Court of Georgia | Date Filed: 2000-03-06
Citation: 528 S.E.2d 217, 272 Ga. 306, 2000 Fulton County D. Rep. 954, 2000 Ga. LEXIS 219
Snippet: therefore, Carruthers’ reliance upon OCGA § 17-10-1.1 in support of his contentions is misplaced.44
Thornton v. State
Court: Supreme Court of Georgia | Date Filed: 1994-10-31
Citation: 264 Ga. 563, 449 S.E.2d 98, 94 Fulton County D. Rep. 3493, 1994 Ga. LEXIS 863
Snippet: [3] Thornton takes the position that OCGA §§ 17-10-1.1 and 17-10-1.2, which became effective after his
Livingston v. State
Court: Supreme Court of Georgia | Date Filed: 1994-06-27
Citation: 264 Ga. 402, 444 S.E.2d 748, 94 Fulton County D. Rep. 2234, 1994 Ga. LEXIS 476
Snippet: victim’s family or the community. Second, OCGA § 17-10-1.1, enacted in 1985, provided in pertinent part that
Sermons v. State
Court: Supreme Court of Georgia | Date Filed: 1992-06-25
Citation: 417 S.E.2d 144, 262 Ga. 286, 92 Fulton County D. Rep. 1086, 1992 Ga. LEXIS 606
Snippet: non-capital cases by the adoption of OCGA §§ 17-10-1.1 and 17-10-1.2, those statutes specifically exempt

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