CopyCited 50 times | Published | Supreme Court of Georgia | Oct 17, 2011 | 289 Ga. 893, 2011 Fulton County D. Rep. 3203
...Phillips, supra at 615(3),
545 S.E.2d 34. 3. The trial court's denial of the motion to vacate a void and illegal sentence is *205 also enumerated as error. Pierce argues that, in sentencing him to life imprisonment without the possibility of parole, the trial court violated former OCGA §
17-10-32.1 by failing to make a specific, express finding of a statutory aggravating circumstance beyond a reasonable doubt. Prior to its repeal in 2009, OCGA §
17-10-32.1(b) provided in relevant part that, in cases where notice of intent to seek the death penalty has been given and the defendant enters a plea of guilty, "the judge may sentence the defendant to ....
...Here, because the court did not specify an aggravating circumstance at the time of sentencing, the statutory requirement was not met. (Emphasis omitted.) Hughes v. State,
269 Ga. 819, 821(2),
504 S.E.2d 696 (1998). The State argues that a remand pursuant to Hughes would be an exercise in futility now that OCGA §
17-10-32.1 has been repealed and is no longer applicable....
...l of a Code section by this Act shall not affect any sentence imposed by any court of this state prior to the effective date of this Act." Ga. L.2009, pp. 223, 227, § 9. That act, which became effective on April 29, 2009, further provides that OCGA §
17-10-32.1 "as it existed prior to the effective date of this Act shall apply to all offenses committed on and before such date." Ga. L.2009, pp. 223, 227, § 11(a). Accordingly, because the crimes were committed in 1999 while OCGA §
17-10-32.1 was in effect and yet "the court imposed ....
...Therefore, the order denying the motion to vacate a void and illegal sentence is reversed with direction that the sentences of life without parole be vacated. "On remand, however, [Pierce] can be resentenced to life without parole if, at the time of resentencing, the judge complies with the requirements of OCGA §
17-10-32.1....
...If the trial court finds the existence of at least one aggravating circumstance as authorized by the provisions of OCGA §
17-10-30 and by our case law construing that statute, then it may determine whether in its discretion to impose a sentence of life imprisonment without parole. See former OCGA §
17-10-32.1(a)....
CopyCited 49 times | Published | Supreme Court of Georgia | Mar 28, 2013 | 743 S.E.2d 12, 2013 Fulton County D. Rep. 1344
...The 2009 Act explicitly provided in § 10, “Aperson may be sentenced to life without parole without the prosecutor seeking the death penalty under the *778laws of this state.” Moreover, §§ 6 and 7 of the 2009 Act repealed OCGA §§
17-10-31.1 and
17-10-32.1, which required the finding of a statutory aggravating circumstance before a sentence of life without parole could be imposed....
CopyCited 35 times | Published | Supreme Court of Georgia | Mar 15, 2010 | 286 Ga. 650, 2010 Fulton County D. Rep. 754
...-10-6.1 and our holding that life without parole cannot be a punishment for rape. See State v. Velazquez, supra,
283 Ga. at 208-209,
657 S.E.2d 838. That holding is predicated upon the codified and uncodified language enacting OCGA §§
17-10-16 and
17-10-32.1, see Ga....
...Georgia, supra,
433 U.S. at 592(III),
97 S.Ct. 2861. See also Kennedy v. Louisiana, supra, 554 U.S. at ___(II),
128 S.Ct. 2641 (grant of writ of certiorari referenced in Velazquez, supra at 208, fn. 2,
657 S.E.2d 838). Nothing in the enactment of OCGA §§
17-10-16 and
17-10-32.1 or our holding in Velazquez served to preclude the Legislature when it amended OCGA §§
16-6-1(b) and
17-10-6.1 in 2006 [4] from authorizing trial courts to impose a "de facto" life without parole sentence for a first conviction of rape....
CopyCited 19 times | Published | Supreme Court of Georgia | Mar 15, 2021 | 311 Ga. 123
...To that end, OCGA §
17-10-16 (a)’s reference to an offense “for which the death penalty
the State did not file a notice of intent to seek the death penalty. See
Velazquez,
283 Ga. at 206-209. The Velazquez majority reasoned that under
OCGA §
17-10-32.1 and other law in effect at that time, an LWOP sentence
was not available if the death penalty constitutionally could not be imposed
and thus prevented the State from filing a notice of intent to seek the death
penalty. See Velazquez,
283 Ga. at 208-209. But Georgia law no longer
requires as a prerequisite for an LWOP sentence that the State file a notice of
intent to seek the death penalty, and OCGA §
17-10-32.1 has since been
repealed....
CopyCited 15 times | Published | Supreme Court of Georgia | Oct 7, 2013 | 749 S.E.2d 660, 2013 Fulton County D. Rep. 3095
...perspective and in conjunction with the sentencing statutes in effect in Georgia in 2001, however, we are compelled to reverse the trial court’s order denying the motion to correct Moore’s sentence.
At the time Moore was sentenced in 2001, OCGA §
17-10-32.1 provided that a defendant who enters a plea after indictment for an offense for which the death penalty or life without parole may be imposed may be sentenced to life imprisonment, or if the State has filed a notice of intent to seek th...
...ent with state and federal laws, impose a sentence of death. See State v. Velazquez,
283 Ga. 206, 209 (657 SE2d 838) (2008) (if state cannot file notice of intent to seek death penalty, defendant cannot be sentenced to life without parole under OCGA §
17-10-32.1); State v....
...Roper, which eliminated the death penalty as a sentencing option available to the state in its prosecution of juvenile offenders, obviously does not on its face address whether in 2001 a juvenile offender could have been legally sentenced to life without parole under OCGA §
17-10-32.1....
...Lane, 489 U. S. 288 (109 SCt 1060, 103 LE2d 334) (1989), and we find that when applied retroactively to the state sentencing scheme in place at the time of Moore’s sentencing, it rendered Moore ineligible to receive a sentence of death under OCGA §
17-10-32.1. Because, as determined by this Court, authority to seek a death sentence was a prerequisite for imposition of a sentence of life without parole under OCGA §
17-10-32.1, and because after proper retroactive application of Roper the State could not consistent with federal law seek the death penalty against Moore due to his age, Moore could not legally be sentenced to life without parole under OCGA §
17-10-32.1....
...In 2009, the General Assembly enacted Ga. L. 2009, p. 223, § 1 which amended OCGA §
16-5-1 (d) to add the sentence of life in prison without the possibility of parole as one of the punishments for murder. The bill also repealed OCGA §§
17-10-31.1 and
17-10-32.1....
CopyCited 14 times | Published | Supreme Court of Georgia | Apr 24, 2012 | 291 Ga. 19, 2012 Fulton County D. Rep. 1540
...In 2009, the General Assembly passed Ga. L.2009, p. 223, § 1 (or Senate Bill 13) which amended OCGA §
16-5-1(d) to add the sentence of life in prison without the possibility of parole as one of the punishments for murder. The bill also repealed OCGA §§
17-10-31.1 and
17-10-32.1, thereby removing requirements that a jury find an aggravating circumstance before imposing the sentence of life without parole (OCGA §
17-10-31.1) and removing the sentencing duties of a judge regarding a person who pled guilty to an offense for which the death penalty or life without parole could be imposed (OCGA §
17-10-32.1)....
...NOTES [1] The charge of felony murder was vacated as a matter of law. Appellant timely filed a notice of appeal on February 2, 2011. The case was docketed to this Court's January 2012 term for a decision to be made based on the briefs. [2] Pursuant to OCGA §
17-10-32.1, defendants who enter a guilty plea after indictment for an offense for which the death penalty or life without parole may be imposed, may be sentenced to life imprisonment, id....
CopyCited 12 times | Published | Supreme Court of Georgia | Feb 25, 2008 | 283 Ga. 206, 2008 Fulton County D. Rep. 580
...e for rape, and a concurrent term of thirty years for aggravated sodomy. On appeal, the Court of Appeals vacated the rape sentence and remanded the case to the trial court for resentencing. As Velazquez pled guilty, his situation is governed by OCGA §
17-10-32.1....
...The State did not supply any notice under the Uniform Rules of the Superior Courts that it intended to seek the death penalty, nor did the superior court make a finding of any aggravating circumstance under OCGA §
17-10-30. Accordingly, under OCGA §
17-10-32.1, the court was not authorized to sentence Velazquez to life in prison without the possibility of parole....
...291. It is, however, the statutory scheme created by the General Assembly that controls this case, not simply language in this Court's opinion in Ingram. As has been noted, in the specific circumstances of a guilty plea in a case falling under OCGA §
17-10-32.1, a notice of intent to seek the death penalty is a statutory prerequisite to a sentence of life without the possibility of parole....
...Prior to the 1999 enactment, the death penalty was statutorily authorized under OCGA §
16-6-1(b). Thus, in 1999, under OCGA §
17-10-16(a), [1] a rape prosecution was already within the ambit of Article 2 of Chapter 10 of Title 17 of the Official Code of Georgia, of which OCGA §
17-10-32.1 is a part. See OCGA §
17-10-30 et seq. And, OCGA §
17-10-32.1, with its specific reference to "life without parole" also existed at the time of the 1999 enactment. Yet, in adding the penalty of life without the possibility of parole as a punishment for the crime of rape, the General Assembly did not exempt the imposition of such punishment from the operation of OCGA §
17-10-32.1. Accordingly, OCGA §
17-10-32.1 applies even after the General Assembly's 1999 inclusion of an additional potential penalty....
...Neither the United States Supreme Court, nor this Court, has yet addressed whether the death penalty is unconstitutionally disproportionate for the crime of raping a child. [2] Further, if the State's argument is correct and Coker effectively bars a sentence of life without parole under OCGA §
17-10-32.1 by preventing it from filing a notice of intent to seek the death penalty, that result would be, in fact, what the General Assembly intended. OCGA §
17-10-32.1 was created by paragraph 6 of Ga....
...t and the Supreme Court of *841 Georgia." Ga. L. 1993, p. 1654, § 9 (not codified). Accordingly, if the State could not file a notice of intent to seek the death penalty against Velazquez, he could not be sentenced to life without parole under OCGA §
17-10-32.1. In any event, as the State did not file a notice of intent to seek the death penalty, under OCGA §
17-10-32.1(b), the trial court was not empowered to sentence Velazquez to life without the possibility of parole....
...In 1999, the General Assembly amended OCGA §
16-6-1(b) so as to authorize life imprisonment without parole as a sentencing option for the crime of rape. Ga. L. 1999, p. 666, § 1. Today, however, the majority holds that, by virtue of OCGA §
17-10-16(a), that sentence is governed by OCGA §§
17-10-30 et seq., including §
17-10-32.1, and, absent compliance with those statutes, is not available as punishment for the crime of rape, whether committed before or after the 1999 amendment....
...risonment for life without parole. . . ." Therefore, the procedures in OCGA §§
17-10-30 et seq. no longer constitute the exclusive method for imposing a sentence of life imprisonment without parole for rape and, in particular, compliance with OCGA §
17-10-32.1 is not required prior to the imposition of that sentence upon entry of a guilty plea to a charge of rape....
CopyCited 11 times | Published | Supreme Court of Georgia | Aug 14, 2017 | 804 S.E.2d 82
...In 2009, the General Assembly passed Ga. L. 2009, p. 223, § 1 (or Senate Bill 13) which amended OCGA §
16-5-1 (d) to add the sentence of life in prison without the possibility of parole as one of the punishments for murder. The bill also repealed OCGA§§
17-10-31.1 and
17-10-32.1, thereby removing requirements that a jury find an aggravating circumstance before imposing the sentence of life without parole (OCGA §
17-10-31.1) and removing the sentencing duties of a judge regarding a person who *766pled guilty to an offense for which the death penalty or life without parole could be imposed (OCGA §
17-10-32.1).
(Citations and punctuation omitted.) Williams v....
CopyCited 7 times | Published | Supreme Court of Georgia | Jun 19, 2017 | 801 S.E.2d 830
...016, Pope filed the three aforementioned pro se motions, all of which the superior court denied on April 21, 2016, in the single order now at issue.
Pope contends that his sentence of life without the possibility of parole is void under former OCGA §
17-10-32.1,2 because the sentencing court failed to comply with it. We agree.
Former OCGA §
17-10-32.1 provided:
(a) Subject to the provisions of subsection (b) of this Code section, any person who has been indicted for an offense for which the death penalty or life without parole may be imposed may enter a plea of guilty at any time af...
...In cases where such notice has been given, the judge may sentence the defendant to death or life without parole only if the judge finds beyond a reasonable doubt the existence of at least one statutory aggravating circumstance as provided in Code Section
17-10-30,3
*530(Emphasis supplied.)
As a criminal statute, former OCGA §
17-10-32.1 is to be strictly construed against the State; consequently, a defendant pleading guilty in a death penalty case cannot be sentenced to life without the possibility of parole unless the sentencing court makes a specific finding of a sta...
...And, the sentencing court’s belated filing of its “Factual Support of Aggravating Circumstances Justifying Sentence of Life Without Possibility of Parole,” two days following Pope’s sentencing did not cure the fatal defect.
Inasmuch as the sentencing court did not fulfill the requirements of former OCGA §
17-10-32.1, the sentence of life without the possibility of parole imposed upon Pope is void and must be vacated....
...he case is remanded to that court for proceedings consistent with this opinion.
Judgment reversed and case remanded with direction.
All the Justices concur.
North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970).
Although OCGA §
17-10-32.1 was repealed in 2009, the crimes were committed in 2005, while this statute was still in effect. Thus, the statute applies in this case. See Ga. L. 2009, pp. 223, 227, § 11 (a) (“[OCGA §
17-10-32.1] as it existed prior to the effective date of this Act shall apply to all offenses committed on and before such date.”).
OCGA §
17-10-30 provides:
(a) The death penalty maybe imposed for the offenses of aircraft hijacking or treas...
CopyCited 5 times | Published | Supreme Court of Georgia | Apr 20, 2015 | 771 S.E.2d 884
...vacate void sentence,” contending that his sentences are void “as a result of the
trial court’s failure to make a contemporaneous specification, beyond a
reasonable doubt, the statutory aggravating circumstance required by O.C.G.A.
2
§
17-10-32.1 (b) authorizing imposition of a life sentence without possibility of
parole.” And, so they are.
Former OCGA §
17-10-32.11 applicable to the time frame of Cordova’s
sentencing provided,
a) Subject to the provisions of subsection (b) of this Code section,
any person who has been indicted for an offense for which the death
penalty or...
CopyCited 4 times | Published | Supreme Court of Georgia | Apr 29, 2019 | 305 Ga. 712
...In 2009, the General Assembly passed Ga. L. 2009, p. 223, § 1 ... which amended OCGA §
16-5-1 (d) to add the sentence of life in prison without the possibility of parole as one of the punishments for murder. The bill also repealed OCGA §§
17-10-31.1 and
17-10-32.1, thereby removing requirements that a jury find an aggravating circumstance before imposing the sentence of life without parole ( OCGA §
17-10-31.1 ) and removing the sentencing duties of a judge regarding a person who pled guilty to an offense for which the death penalty or life without parole could be imposed ( OCGA §
17-10-32.1 ).
(citations and punctuation omitted)....
CopyCited 1 times | Published | Supreme Court of Georgia | Sep 9, 2013 | 748 S.E.2d 459, 2013 Fulton County D. Rep. 2822
...al court denied the motion, and Adams appeals.
*507Adams contends that the trial court sentenced him to life in prison without the possibility of parole, did so without finding a statutory aggravating circumstance as required by then-effective OCGA §
17-10-32.1 (b),2 and that the sentence of life without the possibility of parole is thus void....
...not sentence Adams to life in prison without the possibility of parole. Rather, the court sentenced him to five consecutive terms of life in prison, and such sentences did not require a finding of an aggravated circumstance under then-effective OCGA §
17-10-32.1 (b)....
...the Board from granting parole to one who has been sentenced in such a manner as Adams. However, assuming without deciding that a law enacted under this constitutional provision would bring Adams’s sentences under the ambit of then-effective OCGA §
17-10-32.1 (b), Adams points to no enactment by the General Assembly under this constitutional authority, and we find none....
...Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
Judgment affirmed.
All the Justices concur.
The crimes were committed on November 16, 1993. See Pye v. State,
269 Ga. 779 (505 SE2d 4) (1998).
Then-effective OCGA §
17-10-32.1 (b) read:
Unless the district attorney has given notice that the state intends to seek the death penalty pursuant to the Uniform Rules of the Superior Courts, the judge shall sentence the defendant to life imprisonment....
CopyPublished | Supreme Court of Georgia | Apr 29, 2019
...In 2009, the
General Assembly passed Ga. L. 2009, p. 223, § 1 . . .
which amended OCGA §
16-5-1 (d) to add the sentence of
life in prison without the possibility of parole as one of the
punishments for murder. The bill also repealed OCGA §§
17-10-31.1 and
17-10-32.1, thereby removing
requirements that a jury find an aggravating
circumstance before imposing the sentence of life without
parole (OCGA §
17-10-31.1) and removing the sentencing
duties of a judge regarding a person who pled guilty to an
offense for which the death penalty or life without parole
could be imposed (OCGA §
17-10-32.1).
(citations omitted)....
Published | Supreme Court of Georgia | Apr 20, 2015
...On February 3, 2014, Cordova filed the present pro se “motion to
vacate void sentence,” contending that his sentences are void “as a result of the
trial court’s failure to make a contemporaneous specification, beyond a
reasonable doubt, the statutory aggravating circumstance required by O.C.G.A.
§
17-10-32.1 (b) authorizing imposition of a life sentence without possibility of
2
parole.” And, so they are.
Former OCGA §
17-10-32.11 applicable to the time frame of Cordova’s
sentencing provided:
(a) Subject to the provisions of subsection (b) of
this Code section, any person who has been indicted for
an offe...
...223, § 7, effective April 29, 2009. The Act
provided, however, that “the amendment or repeal of a Code section by this Act shall not affect any
sentence imposed by any court of this state prior to the effective date of this Act,” and that OCGA
§
17-10-32.1 “as it existed prior to the effective date of this Act shall apply to all offenses committed
on and before such date.” Ga....
...All the Justices
concur.
2
As this Court explained in Pierce v. State, in this circumstance, the defendant, upon remand,
can be resentenced to life without the possibility of parole if the resentencing court then complies
with the requirements of former OCGA §
17-10-32.1, that is, if the resentencing court finds the
existence of at least one aggravating circumstance as provided in OCGA §
17-10-30 and the
applicable case law; it is then within the resentencing court’s discretion whether to impose a sentence
of life in prison without the possibility of parole....
Published | Supreme Court of Georgia | Feb 16, 2015
...uld have been life with
the possibility of parole. See Moore v. State,
293 Ga. 705 (2) (749 SE2d 660)
(2013). There is nothing in the legislative history of the 2009 amendment to
8
The bill also repealed OCGA §§
17-10-31.1 and
17-10-32.1, thereby removing requirements
that a jury find an aggravating circumstance before imposing the sentence of life without parole
(OCGA §
17-10-31.1) and removing the sentencing duties of a judge regarding a person who pled
guilty to an offense for which the death penalty or life without parole could be imposed (OCGA §
17-10-32.1)....
