O.C.G.A.

O.C.G.A. § 42-9-39 (2019)

Restrictions on relief for person serving a second life sentence

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)

Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.

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(a) The provisions of this Code section shall be binding upon the board in granting pardons and paroles, notwithstanding any other provisions of this article or any other law relating to the powers of the board. (b) Except as otherwise provided in subsection (b) of Code Section 17-10-7, when a person is convicted of murder and sentenced to life imprisonment and such person has previously been incarcerated under a life sentence, such person shall serve at least 30 years in the penitentiary before being granted a pardon and before becoming eligible for parole. (c) When a person receives consecutive life sentences as the result of offenses occurring in the same series of acts and any one of the life sentences is imposed for the crime of murder, such person shall serve consecutive 30 year periods for each such sentence, up to a maximum of 60 years, before being eligible for parole consideration. (d) Any other provisions of this Code section to the contrary notwithstanding, the board shall have the authority to pardon any person convicted of a crime who is subsequently determined to be innocent of said crime.

History

Code 1981, § 42-9-39, enacted by Ga. L. 1983, p. 523, § 1; Ga. L. 1994, p. 1959, § 14; Ga. L. 2006, p. 379, § 27/HB 1059.

Annotations

Cross references. Power and authority of the board to grant reprieves, pardons, paroles, and other relief, Ga. Const. 1983, Art. IV, Sec. II, Para. II. Editor’s notes. Ga. L. 1994, p. 1959, § 18, not codified by the General Assembly, provides: “This Act shall become effective on January 1, 1995, upon ratification by the voters of this state at the 1994 November general election of that proposed amendment to Article IV, Section II, Paragraph II of the Constitution authorizing the General Assembly to provide for mandatory minimum sentences and sentences of life without possibility of parole in certain cases and providing restrictions on the authority of the State Board of Pardons and Paroles to grant paroles.” That amendment was ratified by the voters on November 8, 1994, so this Code section, as set out

above, became effective on January 1, 1995. Ga. L. 1994, p. 1959, § 1, not codified by the General Assembly, provides: “This Act shall be known and may be cited as the ‘Sentence Reform Act of 1994.’ ” Ga. L. 1994, p. 1959, § 2, not codified by the General Assembly, provides: “The General Assembly declares and finds: “(1) That persons who are convicted of certain serious violent felonies shall serve minimum terms of imprisonment which shall not be suspended, probated, stayed, deferred, or otherwise withheld by the sentencing judge; and “(2) That sentences ordered by courts in cases of certain serious violent felonies shall be served in their entirety and shall not be reduced by parole or by any earned time, early release, work release, or other such sentence-reducing measures administered by the Department of Corrections.” Ga. L. 1994, p. 1959, § 16, not codified by the General Assembly, provides: “The provisions of this Act shall apply only to those offenses committed on or after the

effective date of this Act; provided, however, that any conviction occurring prior to, on, or after the effective date of this Act shall be deemed a ‘conviction’ for the purposes of this Act and shall be counted in determining the appropriate sentence to be imposed for any offense committed on or after the effective date of this Act.” Ga. L. 1994, p. 1959, § 17, not codified by the General Assembly, provides for severability. Ga. L. 1998, p. 180, § 1, not codified by the General Assembly, provides: “The General Assembly declares and finds: (1) That the ‘Sentence Reform Act of 1994,’ approved April 20, 1994 (Ga. L. 1994, p. 1959), provided that persons convicted of one of seven serious violent felonies shall serve minimum mandatory terms of imprisonment which shall not otherwise be suspended, stayed, probated, deferred, or withheld by the sentencing court; (2) That in State v. Allmond, 225 Ga. App. 509 (1997), the Georgia Court of Appeals held, notwithstanding the ‘Sentence Reform Act of 1994,’ that the provisions of the First Offender Act would still be available to the sentencing court, which would mean that a person who committed a serious violent felony could be sentenced to less than the minimum mandatory ten-year sentence; and (3) That, contrary to the decision in State v. Allmond, it is the expressed intent of the General Assembly that persons who

commit a serious violent felony specified in the ‘Sentence Reform Act of 1994’ shall be sentenced to a mandatory term of imprisonment of not less than ten years and shall not be eligible for first offender treatment.” Ga. L. 2006, p. 379, § 30/HB 1059, not codified by the General Assembly, provides, in part, that: “The provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and reenacting, or amending such law, nor shall the prosecution of such crime be abated as a result of such repeal, repeal and reenactment, or amendment.” Administrative rules and regulations. Duties of the Board, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of State Board of Pardons and Paroles, Duties of the Board, Rule 475-2-.01. Time-Served Requirements for Parole Consideration, Official Compilation of the Rules and Regulations of the State of Georgia, Rules of State Board of Pardons and Paroles, Rules, Rule 475-3-.06. Law reviews. For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 159 (1994). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 11 (2006).

JUDICIAL DECISIONS Construction with Georgia Street Gang and Terrorism Prevention Act. - There is no legal authority to support the proposition that the Georgia Street Gang and Terrorism Prevention Act, O.C.G.A. § 16-15-1 et seq., and O.C.G.A. § 42-9-39, two very differently worded statutory provisions, are equivalent; thus, the defendant’s argument that, as a matter of law, if the armed robbery of September 17, 1999, and the murder of December 28, 1999, are considered as part of the “pattern of criminal street gang activity” for purposes of violating the Street Gang Act, they must necessarily also be considered “offenses occurring in the same series of acts” within the meaning of § 42-9-

39(c) failed. Seabolt v. State, 279 Ga. 518, 616 S.E.2d 448, 2005 Ga. LEXIS 450 (2005). Denial of parole not necessarily cruel and unusual punishment. - Since in pleading guilty to four counts of murder and one count of aggravated assault, the defendant admitted a number of acts that a jury could reasonably consider “aggravating circumstances” under O.C.G.A. § 17-10-30(b), and in both Georgia and other jurisdictions, the defendant might well have been sentenced to death, a sentence denying the defendant consideration of parole for 30 years, under subsection (c) of O.C.G.A. § 42-9-39 does not constitute “cruel and unusual punish-

ment.” McClendon v. State, 256 Ga. 480, 350 S.E.2d 235, 1986 Ga. LEXIS 931 (1986). Juvenile offenders. - Defendant’s sentence for crimes the juvenile committed as a juvenile, which amounted to eight consecutive life sentences plus 60 years, was upheld on appeal because the United States Supreme Court had not expanded its mandate that the Eighth Amendment’s

prohibition of cruel and unusual punishment as the Amendment applied to juvenile offenders required a sentencer to consider a juvenile’s youth and youth’s attendant characteristics before imposing a sentence other than life without parole. Veal v. State, 303 Ga. 18, 810 S.E.2d 127, 2018 Ga. LEXIS 78, cert. denied, 139 S. Ct. 320, 202 L. Ed. 2d 218, 2018 U.S. LEXIS 5986 (2018).

RESEARCH REFERENCES Am. Jur. 2d. 59 Am. Jur. 2d, Pardon and Parole, § 29 et seq. ALR. Construction and application of U.S.

Const. Art. I, § 10, cl. 1, and state constitutional provisions proscribing state bills of attainder, 63 A.L.R.6th 1.

Notes of Decisions

Cited in 21 cases (6 in the last 5 years), 1986–2025 · leading case: Seabolt v. State, 616 S.E.2d 448 (Ga. 2005).

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Seabolt v. State, 616 S.E.2d 448 (Ga. 2005). · cites it 10× “Seabolt asserts that trial counsel did not consider the parole implications of two consecutive life sentences in conjunction with OCGA § 42-9-39 (c), 6 and that had counsel done so, he would have realized that Seabolt was not eligible for parole for 20 years and would not have…”

Mikell v. State, 689 S.E.2d 286 (Ga. 2010). · cites it 8× “1(c)(1) cross-references OCGA § 42-9-39, which provides that if Worthy had received consecutive life sentences including one for murder, he would have had to serve consecutive 30-year sentences for each such sentence, up to a maximum of 60 years, before being eligible for parole.”

Cook v. State, 340 S.E.2d 891 (Ga. 1986). · cites it 4× “See OCGA § 42-9-39 (b). Thus, since Cook was already 56 years old, he would not be eligible for parole until he was 81.”

Burgess v. State, 450 S.E.2d 680 (Ga. 1994). · cites it 4× “OCGA § 42-9-39 (b). However, the only evidence in Burgess's trial even remotely suggesting the possibility of parole involved the state's cross-examination of a defense expert witness.”

Davis v. State, 340 S.E.2d 869 (Ga. 1986). · cites it 4× “OCGA § 42-9-39 (c). Because this issue may again arise, we will address it even though the trial court did not err in not giving such a response in this case simply because it was not requested.”

Veal v. State, 810 S.E.2d 127 (Ga. 2018). · cites it 4× “Citing OCGA § 42-9-39 (c) 1 , appellant notes that the aggregate sentence imposed on him mandates 60 years of prison service before the first opportunity for paroled release.”

McClendon v. State, 350 S.E.2d 235 (Ga. 1986). · cites it 6× “Under OCGA § 42-9-39 (c), (he trial court indicated that McClendon would not be eligible for parole until he served thirty years of his sentence.”

Cargill v. State, 340 S.E.2d 891 (Ga. 1986). · cites it 2× “The appellant argues that the trial court erred in refusing to allow him to submit as mitigating evidence the fact that, under OCGA § 42-9-39 (c), he would not be eligible for parole for 30 years if he were given consecutive life sentences on the armed-robbery counts as well as…”

Cargill v. Turpin, 120 F.3d 1366 (11th Cir. 1997). · cites it 2× “” Thus, Cargill believes, the prosecutor improperly “commented on the possibility of parole,” and this comment was misleading because under O.C.G.A. § 42-9-39(c) consecutive life sentences for each of his four felonies would have rendered him ineligible for parole for at least…”

Veal v. State, 303 Ga. 18 (Ga. 2018). · cites it 4× “Citing OCGA § 42-9-39 (c)1, appellant notes that the aggregate sentence imposed on him mandates 60 years of prison service before the first opportunity for paroled release.”

Hammond v. Hall, 586 F.3d 1289 (11th Cir. 2009). “Ga.Code Ann. § 42-9-39(c) (1988), amended by 2006 Ga.”

Hillman v. State, 674 S.E.2d 370 (Ga. Ct. App. 2009). · cites it 2× “29 The statute provides that [e]xeept as otherwise provided in subsection (c) of Code Section 42-9-39, for a first conviction of a serious violent felony in which the defendant has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or…”

Show all 21 citing cases →

— 42-9-39(b) — 1 case

Dennis v. Barnard (M.D. Ga. 2025).

— 42-9-39(c) — 3 cases

Cargill v. Turpin, 120 F.3d 1366 (11th Cir. 1997). “” Thus, Cargill believes, the prosecutor improperly “commented on the possibility of parole,” and this comment was misleading because under O.C.G.A. § 42-9-39(c) consecutive life sentences for each of his four felonies would have rendered him ineligible for parole for at least…”

Hammond v. Hall, 586 F.3d 1289 (11th Cir. 2009). “Ga.Code Ann. § 42-9-39(c) (1988), amended by 2006 Ga.”

Lyndon Fitzgerald Pace v. Warden, Georgia Diagnostic & Classification Prison (11th Cir. 2023).

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