O.C.G.A. § 17-9-63 (2019)

Annotations

JUDICIAL DECISIONS

What constitutes "the face of the record or pleadings." - When it is sought to arrest a judgment imposing a sentence in a criminal case "the face of the record or pleadings" have been held to be the indictment, plea, verdict, and judgment. Hall v. State, 202 Ga. 42, 42 S.E.2d 130 (1947).

Defects which will sustain a motion in arrest of judgment generally. - In order to sustain a motion in arrest of judgment, the defects must appear on the face of the record and must be fatal defects. Hatcher v. State, 176 Ga. 454, 168 S.E. 278 (1933).

Enumerations of error which do not relate to unamendable defects appearing on the face of the record show no ground for reversal. Yarbrough v. State, 119 Ga. App. 46, 166 S.E.2d 35 (1969).

Motion reaches defects, not cured by verdict, to which general demurrer could be interposed. - In criminal cases, a motion in arrest of judgment will reach any defect apparent on the face of the record, not cured by the verdict, to which the general demurrer could have been successfully interposed before arraignment. Mullen v. State, 51 Ga. App. 385, 180 S.E. 521 (1935).

Motions filed in term in which judgments rendered are treated as motions in arrest of judgment. - Motions filed during the term in which judgment are rendered, alleging that the indictments are void, will be treated by the Supreme Court as motions in arrest of judgment as provided by this section. Marshall v. State, 229 Ga. 841, 195 S.E.2d 12 (1972).

Oral motion to quash raises question of whether motion in arrest of judgment would lie. - Oral motion to quash an indictment which is made after the issue has been joined raises only the question of whether the indictment is so defective that a motion in arrest of judgment would lie. Curtis v. State, 102 Ga. App. 790, 118 S.E.2d 264 (1960).

If indictment attacked after verdict, presumption in favor of verdict. - After a verdict, every presumption and inference is in favor of the verdict. Hence, the pleading must be construed most strongly in favor of the pleader (the state). Rumph v. State, 60 Ga. App. 689, 4 S.E.2d 673 (1939).

If defendant did not demur to the indictment, but waited until after the verdict before attacking the verdict's sufficiency by way of a motion in arrest of judgment, every presumption and inference was in favor of the verdict, and the pleading would be construed most strongly in favor of the pleader (the state). Cordovano v. State, 61 Ga. App. 590, 7 S.E.2d 45 (1940).

If the defendant waits until after the verdict and judgment and files a motion to set aside the verdict and judgment on the ground of certain alleged defects on the face of the indictment, every presumption is in favor of the verdict. Grier v. State, 64 Ga. App. 718, 13 S.E.2d 909 (1941).

Inconsistent verdict not a valid basis for a motion in arrest of judgment. - Because Georgia did not recognize the inconsistent verdict rule, the state properly assigned error to the trial court's grant of the defendant's motion in arrest of judgment; the evidence was sufficient to conclude that defendant was guilty of possession of a firearm during the commission of a crime in violation of O.C.G.A. § 16-11-106(b)(1). State v. Robinson, 275 Ga. App. 117, 619 S.E.2d 806 (2005).

Irregularities in jury composition may not be addressed by motion. - Motion in arrest of judgment may not be considered when directed at irregularities in the composition of the jury because this section only relates to the merits of the offense charged and did not entertain collateral attacks. Bowen v. State, 144 Ga. App. 329, 241 S.E.2d 431 (1977).

Evidence that grand jury members were improperly drawn. - It is not within the province of this motion to embrace aliunde evidence tending to show that the members of the grand jury were improperly drawn. Hand v. State, 88 Ga. App. 775, 77 S.E.2d 746 (1953).

Attack by motion on constitutionality of a statute not invoked in the prosecution. - If, by motion in arrest of judgment, a portion of a criminal statute is attacked as unconstitutional, and when neither the indictment, plea, verdict, nor judgment contains anything to indicate that the portion of the statute attacked as unconstitutional was applied or invoked in the prosecution, such motion in arrest of judgment does not present the question to the Supreme Court for determination. Hall v. State, 202 Ga. 42, 42 S.E.2d 130 (1947).

Indictment sets forth offense with sufficient clarity. - Court does not err in overruling a motion in arrest of judgment if it is reasonably apparent from the indictment that every essential ingredient of the offense is set forth with sufficient clearness to enable the defendant and the jury to understand the nature of the offense and to enable the defendant to prepare a defense. Rumph v. State, 60 Ga. App. 689, 4 S.E.2d 673 (1939).

Imperfect indictment which nonetheless charges violation understandable by the jury. - If a verdict, when construed with the indictment, does not find the defendant guilty of any offense, the judgment should be arrested, but when, regardless of the denomination of the offense, the allegations of the indictment charge, even imperfectly, a violation of the law which can be plainly understood by the jury, and a verdict finding the defendant guilty cannot be ignored without violating the rules of common sense, sentence should be pronounced upon the finding. Rumph v. State, 60 Ga. App. 689, 4 S.E.2d 673 (1939).

Before retrial, substance of indictment may also be tried by general demurrer. - Because a motion in arrest of judgment can be made after trial to challenge the substance of an indictment, it follows that a general demurrer can be made before retrial to challenge the substance of the indictment. Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580 (1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978).

Form of objection if motion in arrest of judgment does not lie. - If an indictment is not on the indictment's face so defective that a motion in arrest of judgment would lie, an objection to the indictment must be in writing. An oral objection, being ineffective for its purpose, is the equivalent of none at all, and, if no other action be taken, a waiver results. Curtis v. State, 102 Ga. App. 790, 118 S.E.2d 264 (1960).

Cited in McClendon v. State, 81 Ga. App. 218, 58 S.E.2d 462 (1950); Jennings v. Davis, 92 Ga. App. 265, 88 S.E.2d 544 (1955); Slaughter v. State, 98 Ga. App. 59, 104 S.E.2d 911 (1958); Johnson v. State, 116 Ga. App. 406, 157 S.E.2d 773 (1967); Palmer v. State, 144 Ga. App. 480, 241 S.E.2d 597 (1978); Joiner v. State, 163 Ga. App. 521, 295 S.E.2d 219 (1982); Brown v. State, 181 Ga. App. 865, 354 S.E.2d 169 (1987); Dandy v. State, 253 Ga. App. 407, 559 S.E.2d 150 (2002).

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 730 et seq.

C.J.S. - 23A C.J.S., Criminal Law, § 1991.

ALR. - Appealability of order arresting judgment in criminal case, 98 A.L.R.2d 737.

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CHAPTER 10 SENTENCE AND PUNISHMENT

Article 1

Procedure for Sentencing and Imposition of Punishment.

17-10-1. Fixing of sentence; suspension or probation of sentence; change in sentence; eligibility for parole; prohibited modifications; exceptions.

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.

17-10-1.2. Oral victim impact statement; presentation of evidence; cross-examination and rebuttal by defendant; effect of noncompliance; no creation of cause of action or right of appeal.

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

17-10-1.4. Split sentence.

17-10-2. Conduct of presentence hearings in felony cases; effect of reversal for error in presentence hearing.

17-10-3. Punishment for misdemeanors generally.

17-10-3.1. Punishment for violations of Code Section 40-6-391.

17-10-4. Punishment for misdemeanors of a high and aggravated nature.

17-10-5. Imposition of misdemeanor punishment for felonies punishable by imprisonment for term of ten years or less.

17-10-6. Review of sentences of imprisonment for period exceeding 12 years by three-judge panel [Repealed].

17-10-6.1. Punishment for serious violent offenders; authorization for reduction in mandatory minimum sentencing.

17-10-6.2. Punishment for sexual offenders.

17-10-6.3. Disposition of cases currently under review by three-judge panel; duties and responsibilities of the president of The Council of Superior Court Judges of Georgia with respect to abolishing the three-judge panel.

17-10-7. Punishment of repeat offenders; punishment and eligibility for parole of persons convicted of fourth felony offense.

17-10-8. Payment of fine in felony case; rebate or refund of fine not permitted upon revocation of probation.

17-10-8.1. Fee for legal defense services as condition of probation.

17-10-9. Specification by judge imposing sentence of time from which penal sentence to run; effect of appeal.

17-10-9.1. Voluntary surrender to county jail or correctional institution; release of defendant.

17-10-10. Concurrent sentences.

17-10-11. Granting of credit generally; use in determining parole eligibility; applicability of Code section.

17-10-12. Affidavit specifying number of days spent in confinement; disposition of affidavit; granting of credit to defendant.

17-10-13. Legal adjudication of guilt in court having jurisdiction to precede assessment of punishment.

17-10-14. Committal of person under 17 convicted of felony.

17-10-15. AIDS transmitting crimes; requiring defendant to submit to HIV test; report of results.

17-10-16. Sentence to imprisonment for life without parole authorized; ineligibility for parole or leave programs.

17-10-16.1. Seeking death penalty not prerequisite to life without parole sentence.

17-10-17. Sentencing of defendants guilty of crimes involving bias or prejudice; circumstances; parole.

17-10-18. Notification to seek enhanced penalty.

17-10-19. Determination of defendant's guilt; object of the offense; enhancement of sentence.

17-10-20. Collection of fines and restitution in criminal cases.

Article 2

Death Penalty Generally.

17-10-30. Procedure for imposition of death penalty generally.

17-10-30.1. Imprisonment for life without parole; finding of statutory aggravating circumstance required; duties of judge and jury [Repealed].

17-10-31. Requirement of jury finding of aggravating circumstance and recommendation of death penalty prior to imposition; arguments of counsel during sentencing phase; jury instructions; actions of judge in event of failure to reach unanimous verdict.

17-10-31.1. Requirement of jury finding of aggravating circumstance and recommendation of sentence of death or life without parole; duties of judge; jury instruction on meaning of "life without parole" and "life imprisonment." [Repealed].

17-10-32. Sentencing of person indicted for capital offense to life imprisonment or other punishment upon plea of guilty.

17-10-32.1. Sentencing of person subject to death penalty or life without parole upon plea of guilty; duties of judge [Repealed].

17-10-33. Imposition of sentence of death upon judgment of death; to whom copies of sentence sent; conveying defendant to state correctional institution; expenses of transporting defendant.

17-10-34. Sentence to specify time period for and place of execution; appointing time period for execution of pregnant female.

17-10-35. Review of death sentences by Supreme Court; forwarding of record and transcript; scope of review; written briefs and oral argument; similar cases to be included in decision; direct appeal to be consolidated with sentence review.

17-10-35.1. Review of pretrial proceedings when death penalty is sought; reports investigating reversible error; transmittal of reports to Supreme Court; orders regarding review; Attorney General assistance; res judicata; applicability; waiver of rights.

17-10-35.2. Hearing to determine appropriateness of interim appellate review of pretrial rulings.

17-10-36. Establishment of unified review procedure by Supreme Court; effect on habeas corpus.

17-10-37. Appointment of assistant to Supreme Court to review death sentences; employment of staff to compile data.

17-10-38. Death sentences generally.

17-10-39. Procedure for determination if female sentenced to death is pregnant; suspension of execution of sentence; issuance of new order for execution of sentence; entry of order upon minutes of court.

17-10-40. Change of time period for execution when time period set for execution has passed; recordation on court minutes; length of and time limitation for new time period for execution; setting day and time for execution.

17-10-41. Persons required to be present at executions.

17-10-42. Preparation and filing of certification of execution.

17-10-42.1. Participation of medical professionals in executions.

17-10-43. Disposition of body of executed person; payment of expenses of transporting body.

17-10-44. Apparatus, machinery, and appliances.

Article 3

Mentally Incompetent to be Executed.

17-10-60. "Mentally incompetent to be executed" defined.

17-10-61. No execution upon determination of mental incompetency to be executed.

17-10-62. Exclusive procedure for challenging mental competency to be executed.

17-10-63. Filing of application; contents.

17-10-64. Service of application.

17-10-65. Answer by respondent.

17-10-66. Examination of applicant.

17-10-67. When application to be filed.

17-10-68. Proof; disposition.

17-10-69. Prior adjudication as presumption of mental competency.

17-10-70. Appeals.

17-10-71. Procedure upon convicted person's regaining mental competency.

Cross references. - Prohibition against cruel and unusual punishment, U.S. Const., amend. 8 and Ga. Const. 1983, Art. I, Sec. I, Para. XVII.

Penalty for hiring applicant with criminal record, § 31-7-353.

U.S. Code. - Sentence and judgment, Federal Rules of Criminal Procedure, Rule 32.

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 annual survey article discussing developments in criminal law, see 51 Mercer L. Rev. 209 (1999). For article, "Constructing Recidivism Risk," see 67 Emory L.J. 59 (2017).

For note, "Comparative Analysis of Democracy and Sentencing in the United States as a Model for Reform in Iraq," see 33 Ga. J. Int'l & Comp. L. 303 (2004).

OPINIONS OF THE ATTORNEY GENERAL

Application date of provisions. - Sentence Reform Act of 1994 became effective January 1, 1995, and the new sentencing provisions created by the Act only apply to offenses committed on or after that date. 1997 Op. Att'y Gen. No. 97-10.

RESEARCH REFERENCES

Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, § 736. 21A Am. Jur. 2d, Criminal Law, § 849.

C.J.S. - 24 C.J.S., Criminal Law, §§ 1995 et seq., 2019 et seq.

ALR. - Right to recover back fine or penalty paid in criminal proceeding, 26 A.L.R. 1523.

Censorship and evidentiary use of unconvicted prisoners' mail, 52 A.L.R.3d 548.

Propriety of conditioning probation on defendant's not entering specified geographical area, 28 A.L.R.4th 725.

Right of convicted defendant to refuse probation, 28 A.L.R.4th 736.

Computation of incarceration time under work-release or "hardship" sentences, 28 A.L.R.4th 1265.

Appealability of order suspending imposition or execution of sentence, 51 A.L.R.4th 939.

Insanity as defense to revocation of probation, 56 A.L.R.4th 1178.

The propriety of conditioning parole on defendant's not entering specified geographical area, 54 A.L.R.5th 743.

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ARTICLE 1 PROCEDURE FOR SENTENCING AND IMPOSITION OF PUNISHMENT

Cross references. - Vacating of office by state officer convicted of felony, § 45-5-2.

Suspension of county officer upon conviction for felony, § 45-5-6.

Sentencing and sentence review, Uniform Superior Court Rules, Rule 35.2.

Modification or vacation of juvenile court order of probation, Uniform Rules for the Juvenile Courts of Georgia, Rules 16.1 through 16.4.

Law reviews. - For annual survey on death penalty law, see 70 Mercer L. Rev. 73 (2018).

For note on the 1994 amendments of Code Sections 17-10-1, 17-10-6, 17-10-7 and enactment of Code Section 17-10-6.1 of this article, see 11 Ga. St. U.L. Rev. 159 (1994).

RESEARCH REFERENCES

Governmental Entity's Liability for Injuries Caused by Negligently Released Individual, 19 POF2d 583.

Government's Breach of Plea Bargain, 27 POF2d 133.