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2018 Georgia Code 17-9-3 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 17-9-3 Case Law from Google Scholar Amendments to OCGA 17-9-3

TITLE 17 CRIMINAL PROCEDURE

Section 9. Verdict and Judgment Generally, 17-9-1 through 17-9-63.

ARTICLE 1 GENERAL PROVISIONS

17-9-3. 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.

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.

(Ga. L. 1875, p. 106, § 2; Code 1882, § 4646a; Penal Code 1895, § 1034; Penal Code 1910, § 1060; Code 1933, § 27-2302; Ga. L. 1963, p. 122, § 2; Ga. L. 1974, p. 352, § 2.)

Cross references.

- Further provisions regarding jury recommendations in death penalty cases, § 17-10-2.

Finding by jury of statutory aggravating circumstance and recommendation of death sentence as prerequisites to imposition of death sentence, § 17-10-31.

U.S. Code.

- Verdicts, Federal Rules of Criminal Procedure, Rule 31.

Law reviews.

- For article discussing the 1968 Criminal Code of Georgia, comparing preexisting provisions of Georgia criminal law, see 5 Ga. St. B.J. 185 (1968). For article, "Jury Sentencing in Georgia - Time for a Change?," see 5 Ga. St. B.J. 421 (1969). For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article, "The Execution of America's Children," see 6 Ga. State U.L. Rev. 403 (1990).

JUDICIAL DECISIONS

Applicability to homicide cases.

- Last sentence of O.C.G.A. § 17-9-3 applies to cases of homicide, the legislature having intended to create a general prohibition against the execution of persons who had not reached their 17th birthday at the time of the commission of the offense. Bankston v. State, 258 Ga. 188, 367 S.E.2d 36 (1988).

Verdict and not the indictment determined when this section applied. Cox v. State, 33 Ga. App. 144, 125 S.E. 731 (1924).

Judge may not give different sentence than law requires when guilty plea.

- This section did not permit the judge, on a plea of guilty, to fix a different sentence than that prescribed by a particular section. Morris v. Clark, 156 Ga. 489, 119 S.E. 303 (1923).

Jury recommendation is binding.

- In jury cases, the trial judge is bound by the jury's recommended sentence. Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976).

Charge cannot take away jury's role.

- Charge depriving the jury of the right and duty devolving upon the jury by this section was erroneous. Thompson v. State, 160 Ga. 520, 128 S.E. 756 (1925).

When applicable, this section should be charged. Butt v. State, 150 Ga. 302, 103 S.E. 466 (1920).

Charge that gave the substance of this section would suffice. Lewis v. State, 25 Ga. App. 7, 102 S.E. 367 (1920).

Jury has power to fix minimum and maximum sentence after plea of innocence.

- Power given to the jury to prescribe a minimum and maximum term is emphasized by the further provision that "in cases of pleas of guilty, then the judge shall have the right to prescribe such minimum and maximum term as he may see fit." Mitchell v. State, 34 Ga. App. 505, 130 S.E. 355 (1925).

Effect of jury failing to fix maximum and minimum.

- If the jury fails to prescribe the maximum and minimum in a burglary case but merely recommends the defendant to the mercy of the court, the verdict is not in proper form, and it is error for the judge to receive the verdict and fix the minimum and maximum term of punishment. The judge should send the jury back with the instruction that the jury fix the minimum and the maximum penalty. Mitchell v. State, 34 Ga. App. 505, 130 S.E. 355 (1925).

Verdict of the jury fixing the same maximum and minimum is sufficient. Powell v. State, 25 Ga. App. 329, 103 S.E. 174 (1920); Johnson v. State, 154 Ga. 806, 115 S.E. 642 (1923).

Defendant has right to poll jury.

- If the jury returns a maximum-minimum sentence and the judge immediately turns to the accused and states that that would be the accused's sentence, the accused is not deprived of the right to poll the jury. The accused has this privilege while the verdict is being reduced to writing and retired as a judgment. Taylor v. State, 36 Ga. App. 639, 138 S.E. 83 (1927).

Abuse of jury's discretion is not reviewable.

- Whether or not a jury has abused the unlimited discretion given a jury by law, in regard to recommending a defendant to the mercy of the court, under which the defendant would be sentenced to life imprisonment, is in no instance subject to review by the courts. Aiken v. State, 170 Ga. 895, 154 S.E. 368 (1930).

Death sentence on seventeen year old.

- If the defendant was 17 years old at the time of the crime, the defendant's death sentence does not violate O.C.G.A. § 17-9-3. Williams v. State, 258 Ga. 281, 368 S.E.2d 742 (1988), cert. denied, 492 U.S. 925, 109 S. Ct. 3261, 106 L. Ed. 2d 606 (1989).

Cited in Towns v. State, 149 Ga. 613, 101 S.E. 678 (1919); Daniel v. State, 24 Ga. App. 557, 101 S.E. 812 (1919); Walker v. Dorminey, 150 Ga. 635, 104 S.E. 447 (1920); Moore v. State, 150 Ga. 679, 104 S.E. 907 (1920); Thompson v. State, 151 Ga. 328, 106 S.E. 278 (1921); Durden v. State, 152 Ga. 441, 110 S.E. 283 (1921); Miller v. State, 224 Ga. 627, 163 S.E.2d 730 (1968); Holmes v. State, 224 Ga. 553, 163 S.E.2d 803 (1968); Massey v. Smith, 224 Ga. 721, 164 S.E.2d 786 (1968); Coker v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); Cape v. Francis, 558 F. Supp. 1207 (M.D. Ga. 1983).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21A Am. Jur. 2d, Criminal Law, § 870.

C.J.S.

- 24 C.J.S., Criminal Law, § 2064.

ALR.

- Bail: imposition of life sentence as affecting capital character of offense, 3 A.L.R. 970.

Recommendation of mercy in criminal case, 87 A.L.R. 1362; 138 A.L.R. 1230.

Loss of jurisdiction by delay in imposing sentence, 98 A.L.R.3d 605.

Cases Citing O.C.G.A. § 17-9-3

Total Results: 4  |  Sort by: Relevance  |  Newest First

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Williams v. State, 368 S.E.2d 742 (Ga. 1988).

Cited 84 times | Published | Supreme Court of Georgia | Jun 9, 1988 | 258 Ga. 281

...Because no objection was raised at trial, we do not address these claims of error directly. 9. Williams argues that because he was 17 years old at the time of the crime, the trial court should have refused to allow the imposition of a death sentence. OCGA § 17-9-3 bars the imposition of the death penalty when a defendant was under the age of 17 when he committed the crime....
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Legare v. State, 302 S.E.2d 351 (Ga. 1983).

Cited 38 times | Published | Supreme Court of Georgia | Apr 27, 1983 | 250 Ga. 875

...1983). 4. Defendant urges that imposition of the death penalty upon a person who was under the age of 18 at the time of the offense constitutes cruel and unusual punishment under the Eighth Amendment. He correctly points out that the 1982 Code, OCGA § 17-9-3 (Code Ann....
...Judgment reversed. All the Justices concur. NOTES [1] Legare was 17 at the time of the offenses for which he was convicted. [2] For the reason such charges are called "Allen charges," see Anderson v. State, 247 Ga. 397, 400 (276 SE2d 603) (1981). [3] OCGA § 17-9-3 (Code Ann....
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Bankston v. State, 367 S.E.2d 36 (Ga. 1988).

Cited 24 times | Published | Supreme Court of Georgia | Apr 20, 1988 | 258 Ga. 188

...The state has filed notice of its intent to seek the death penalty, and applicant has filed a pretrial motion to bar imposition of the death penalty on both constitutional and statutory grounds. The statutory provision in issue is the last sentence of OCGA § 17-9-3, which provides in full: 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....
...[Emphasis supplied.] The trial court denied applicant's motion, and in seeking to obtain a reversal thereof by this court, the sole argument presented by applicant is that since he had not reached his seventeenth birthday at the time of the commission of any of the offenses charged, OCGA § 17-9-3 bars imposition of the death penalty. We agree with this argument, hereby grant the application, and reverse. *189 The history of OCGA § 17-9-3, and the evolution of constitutional law with respect to imposition of the death penalty, complicate the question of statutory construction in this case. OCGA § 17-9-3 is a successor statute to Code Ann....
...ses of homicide. The Official Code of Georgia became effective in 1982, and, as previously noted, the provision barring imposition of the death penalty against those under 17 years of age at the time of the offense is now officially codified in OCGA § 17-9-3....
...made to the effect that the legislature did not intend the prohibition against executing persons under the age of seventeen years to apply to cases of homicide. However, by so holding, we would be ascribing to the legislature, in its passage of OCGA § 17-9-3, an intention to enact a statute which was at the time of its enactment and which is now a legal nullity, by reason of Coker. In addition, the third sentence of OCGA § 17-9-3, by its terms, applies to "capital offense[s]," and not, as stated in the first paragraph, "capital cases, other than those of homicide." Under these circumstances, our interpretation of the statute is that the legislature intended to *190...
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Bankston v. State, 837 S.E.2d 788 (Ga. 2020).

Cited 5 times | Published | Supreme Court of Georgia | Jan 13, 2020 | 307 Ga. 656

...Bankston for the murders of five people and other crimes that he committed when he was 15 and 16 years old. The trial court denied Bankston’s pre-trial motion to bar the imposition of the death penalty, but on April 20, 1988, this Court reversed, ruling that OCGA § 17-9-3 prohibited the imposition of the death penalty against Bankston because he had not reached his seventeenth birthday at the time he committed the offenses....