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2018 Georgia Code 17-10-1.3 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 17-10-1.3 Case Law from Google Scholar Amendments to OCGA 17-10-1.3

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

17-10-1.3. Factoring into sentencing determinations citizenship status of convict.

  1. In determining whether to probate all or any part of any sentence of confinement in any felony, misdemeanor, or ordinance violation case, the sentencing court shall be authorized to make inquiry into whether the person to be sentenced is lawfully present in the United States under federal law.
  2. If the court determines that the person to be sentenced is not lawfully present in the United States, the court shall be authorized to make inquiry into whether the person to be sentenced would be legally subject to deportation from the United States while serving a probated sentence.
  3. If the court determines that the person to be sentenced would be legally subject to deportation from the United States while serving a probated sentence, the court may:
    1. Consider the interest of the state in securing certain and complete execution of its judicial sentences in criminal and quasi-criminal cases;
    2. Consider the likelihood that deportation may intervene to frustrate that state interest if probation is granted; and
    3. Where appropriate, decline to probate a sentence in furtherance of the state interest in certain and complete execution of sentences.
  4. This Code section shall apply with respect to a judicial determination as to whether to suspend all or any part of a sentence of confinement in the same manner as this Code section applies to determinations with respect to probation.

(Code 1981, §17-10-1.3, enacted by Ga. L. 2007, p. 34, § 1/SB 23; Ga. L. 2008, p. 324, § 17/SB 455.)

Editor's notes.

- Ga. L. 2007, p. 34, § 3/SB 23, not codified by the General Assembly, provides: "The General Assembly finds that this Act states factors for consideration in discretionary decision-making processes within the criminal justice system. The General Assembly finds that such factors could have been considered prior to or without the enactment of this Act. Accordingly, it is the intention of the General Assembly that this Act may be applied with respect to offenses committed prior to its effective date as well as offenses committed on or after its effective date. However, if there should be a judicial determination that retrospective application is prohibited, it is the intention of the General Assembly that retrospective application should be severable." This Act became effective May 11, 2007.

RESEARCH REFERENCES

Am. Jur. 2d.

- 3C Am. Jur. 2d, Aliens and Citizens, §§ 2603, 2604.

C.J.S.

- 3 C.J.S., Aliens, § 119 et seq.

Cases Citing O.C.G.A. § 17-10-1.3

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Reyes v. State, 898 S.E.2d 473 (Ga. 2024).

Cited 1 times | Published | Supreme Court of Georgia | Feb 20, 2024 | 318 Ga. 340

... improperly considered his status as an undocumented immigrant during sentencing, in violation of his rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. Appellant further argues that OCGA § 17-10-1.3, which allows a trial court to consider whether a criminal defendant is subject to deportation when determining whether to probate the defendant’s sentence, is unconstitutional both as-applied and on its face. Because OCGA § 17-10-1.3 survives rational basis review, and because the trial court applied this statute within the bounds of the protections offered by the Due Process and Equal Protection Clauses of the United States Constitution, Appellant’s claims fail. 1....
...claim regarding his sentence. Because we conclude that Appellant’s due process challenge to his sentence fails, see infra Division 3, we do not decide whether it was properly preserved for review. 6 referenced OCGA § 17-10-1.3 during the sentencing hearing or in any written filings submitted at or prior to sentencing. Appellant then appealed his sentence to the Court of Appeals, where he argued that his sentence violated both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment....
...grounds,” without distinguishing between his due process and his equal protection claims. Following remand, Appellant briefed both constitutional claims for the trial court and argued, for the first time, that to the extent the trial court relied on OCGA § 17-10-1.3 in issuing its sentence, that statute is unconstitutional on its face and as applied to him.4 Following additional briefing from the State and a hearing, the trial court issued a written order denying Appellant’s 4 The State does not argue that Appellant waived his constitutional claims regarding OCGA § 17-10-1.3. As with Appellant’s federal due process challenge to his sentence, we decline to consider whether Appellant’s constitutional claims regarding OCGA § 17-10-1.3 were preserved for review because we conclude that those claims fail on the merits....
...ons of probation,” such as the requirement to maintain suitable employment, when determining whether to probate a portion of the defendant’s sentence. Id. at 853 (2). Though the Trujillo decision did not address the constitutionality of OCGA § 17-10-1.3, the trial court 8 relied on Trujillo’s reasoning to conclude that the statute is “constitutional on its face and as applied in this case.” Appellant now appeals his sentence and the trial court’s ruling on the constitutionality of OCGA § 17-10-1.3. 2. (a) Because the trial court closely tracked the procedure set forth in OCGA § 17-10-1.3, we turn first to Appellant’s facial challenge to that statute. As explained below, we conclude that Appellant’s claim fails. OCGA § 17-10-1.3 permits trial courts to consider whether the “person to be sentenced is lawfully present in the United States under federal law,” and further, whether such person “would be legally subject to deportation from the United States while serving a probated sentence.” OCGA § 17-10-1.3 (a), (b). If so, the trial court may, “[w]here appropriate, decline to probate [the person’s] sentence in furtherance of the state interest in certain and complete execution of sentences.” OCGA § 17-10-1.3 (c) (3).5 Appellant argues that this 5 OCGA § 17-10-1.3 provides in full: 9 statute violates the Equal Protection Clause because it treats (a) In determining whether to probate all or any part of any sentence of confinement in any felony,...
...ess Clause because consideration of a defendant’s immigration status at sentencing is constitutionally impermissible. In making these arguments, Appellant contends that undocumented immigrants constitute a suspect class and therefore that OCGA § 17-10-1.3 is subject to strict scrutiny....
...“in securing certain and complete execution of its judicial sentences in criminal and quasi-criminal cases” is not a compelling one. As explained below, however, Appellant is incorrect: undocumented immigrants do not form a suspect class, and OCGA § 17-10-1.3 is therefore subject only to rational-basis review, which it satisfies. (i) We begin by noting that the Due Process and Equal Protection Clauses of the Fourteenth Amendment protect all “persons” within the United States regardless of whether their presence in the country is lawful....
...at 761 (3). “Because legislation is presumptively constitutional, the claimant carries the burden of proving that a statute is unconstitutional.” Regan v. State, 317 Ga. 612, 616 (3) (b) (894 SE2d 584) (2023). As previously explained, OCGA § 17-10-1.3 (c) authorizes a trial court to decline to probate a defendant’s sentence where the defendant “would be legally subject to deportation from the United States while serving a probated sentence” as a result of the defendant’s unlawful presence in the United States. This classification scheme divides persons to be sentenced based on whether they are legally subject to deportation, rather than on their citizenship or whether they are lawfully present. See OCGA § 17-10-1.3 (b)....
...ures for doing so. 15 Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law.” (citing 8 USC § 1227)). OCGA § 17-10-1.3 also expressly identifies the governmental interest at stake as “the interest of the state in securing certain and complete execution of its judicial sentences in criminal and quasi- criminal cases.” OCGA § 17-10-1.3 (c) (1)....
...r her removal from the country is closely associated with Georgia’s general interest in the punishment and deterrence of crime, as well as the public’s faith in the “certain[ty]” of lawful criminal sentences issued by the judiciary. OCGA § 17-10-1.3 (c) (1). Having identified OCGA § 17-10-1.3’s classificatory scheme and determined that the State’s interest at issue is legitimate, we must evaluate whether the former bears a rational relationship to the latter. OCGA § 17-10-1.3 (c) (3) permits sentencing courts, “[w]here appropriate,” to “decline to probate a sentence” of a person subject to deportation “in furtherance of the state interest.” OCGA § 17-10-1.3 (c) (3)....
...2008) (“[W]e agree with those courts in other jurisdictions that have determined that the surrounding circumstances of a defendant’s alien status may be relevant to a sentencing court’s decision whether to grant or deny probation.”). Because the classification scheme in OCGA § 17-10-1.3 bears a rational relationship to the legitimate 18 governmental interest expressly advanced by the statute, it survives rational basis review, and Appellant’s facial challenge to this statute fails. (b) Appellant further argues that, to the extent the trial court applied OCGA § 17-10-1.3 when issuing his sentence, it did so unconstitutionally because it based his sentence “solely” on his immigration status. Though the trial court did not mention OCGA § 17-10-1.3 in its oral pronouncement of Appellant’s sentence, its written order makes clear that it “considered [Appellant’s] status as an illegal alien as a factor in formulating its sentence as contemplated by . . . [OCGA] § 17-10-1.3” and that the statute is “constitutional . . . as applied in this case.” Because the trial court relied on OCGA § 17-10-1.3 in sentencing Appellant, we consider Appellant’s as-applied challenge here. Appellant argues that the trial court impermissibly based his sentence “solely” on his immigration status in violation of the Due Process Clau...
...The record offers no evidence that the trial court based its sentence on discriminatory animus toward undocumented noncitizens. We accordingly hold that the trial court did not violate the Due Process Clause or the Equal Protection Clause when it applied OCGA § 17-10-1.3 to Appellant and declined to probate any portion of his sentence. 3. Because Appellant’s argument in support of his as-applied challenge to OCGA § 17-10-1.3 is identical to his argument in support of his general claim that his sentence is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, Appellant’s general claim also fails. Judgment affirmed. All the Justices concur. 22 Decided February 20, 2024. OCGA § 17-10-1.3; constitutional question....