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2018 Georgia Code 42-9-39 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 42-9-39 Case Law from Google Scholar Amendments to OCGA 42-9-39

TITLE 42 PENAL INSTITUTIONS

Section 9. Pardons and Paroles, 42-9-1 through 42-9-90.

ARTICLE 2 GRANTS OF PARDONS, PAROLES, AND OTHER RELIEF

42-9-39. Restrictions on relief for person serving a second life sentence.

  1. 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.
  2. 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.
  3. 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.
  4. 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.

(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.)

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."

Law reviews.

- For article on 2006 amendment of this Code section, see 23 Ga. St. U.L. Rev. 11 (2006). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 159 (1994).

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).

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 punishment." McClendon v. State, 256 Ga. 480, 350 S.E.2d 235 (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 applies to juvenile offenders requires 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).

Cited in Cook v. State, 255 Ga. 565, 340 S.E.2d 843 (1986); Davis v. State, 255 Ga. 598, 340 S.E.2d 869 (1986); Cargill v. State, 255 Ga. 616, 340 S.E.2d 891 (1986); In re L.L.B., 256 Ga. 768, 353 S.E.2d 507 (1987).

RESEARCH REFERENCES

Am. Jur. 2d.

- 59 Am. Jur. 2d, Pardon and Parole, §§ 30, 76.

C.J.S.

- 67A C.J.S., Pardon and Parole, §§ 18, 23-25, 46-53.

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.

Cases Citing O.C.G.A. § 42-9-39

Total Results: 16  |  Sort by: Relevance  |  Newest First

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Cargill v. State, 340 S.E.2d 891 (Ga. 1986).

Cited 172 times | Published | Supreme Court of Georgia | Mar 18, 1986 | 255 Ga. 616

...porting aggravating circumstances" is not applicable here. See Wilson v. State, 250 Ga. 630, supra, (9) and cits. 36. 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 the murder counts....
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Cook v. State, 340 S.E.2d 891 (Ga. 1986).

Cited 90 times | Published | Supreme Court of Georgia | Mar 7, 1986 | 255 Ga. 565

...each of the aggravated assault charges. Gary researched the effect of such a plea and discovered that since Cook had a previous murder conviction, for which he had received a life sentence, he would not be eligible for parole for 25 years. See OCGA § 42-9-39 (b)....
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Burgess v. State, 264 Ga. 777 (Ga. 1994).

Cited 89 times | Published | Supreme Court of Georgia | Dec 5, 1994 | 450 S.E.2d 680, 94 Fulton County D. Rep. 3985

...It seems fundamental that if the state's evidence or argument permits a jury inference concerning parole eligibility that may be untrue, a defendant may appropriately demonstrate any statutory provision to the contrary. In Burgess's case, the statute makes him ineligible for parole for 25 years. OCGA § 42-9-39 (b)....
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Davis v. State, 340 S.E.2d 869 (Ga. 1986).

Cited 86 times | Published | Supreme Court of Georgia | Mar 11, 1986 | 255 Ga. 598

...I don't know if that answered their question." The defendant argues on appeal that the jury should have been told that if the defendant were given consecutive life sentences for the murder and armed robbery, he would have to serve 20 years before becoming eligible for parole. OCGA § 42-9-39 (c)....
...It expresses a policy "not to allow argument or charge on matters concerning parole." Id. This is a salutary policy, and one which we adhere to. To allow comment about the possibility of parole will not benefit defendants on trial for their life because parole is, in fact, a possibility. See OCGA §§ 42-9-39 (c); 42-9-45 (b)....
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Manley v. State, 698 S.E.2d 301 (Ga. 2010).

Cited 42 times | Published | Supreme Court of Georgia | Apr 9, 2010 | 287 Ga. 338, 2010 Fulton County D. Rep. 2748

...The analysis of such disparities may be more complicated, both because determining parole eligibility often requires looking beyond the terms of the charged offenses to consider the statutes, rules, and practices relating to parole, see, e.g., OCGA §§ 17-10-6.1, 17-10-7, 42-9-39, 42-9-40, and because the Board of Pardons and Paroles is independent of the district attorneys and generally has broad discretion to grant or deny parole, as is correctly noted in Hewitt [v....
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McClendon v. State, 350 S.E.2d 235 (Ga. 1986).

Cited 20 times | Published | Supreme Court of Georgia | Nov 25, 1986 | 256 Ga. 480

...agreed to refrain from seeking the *481 death penalty and to drop the remaining charges. The trial court gave McClendon life sentences for the murders, and a twenty-year sentence for the aggravated battery, all to be served consecutively. Under OCGA § 42-9-39 (c), the trial court indicated that McClendon would not be eligible for parole until he served thirty years of his sentence. McClendon appeals the validity of his guilty plea, the trial court's denial of his motion for a committal hearing, and the constitutionality of OCGA § 42-9-39 (c)....
...nder OCGA § 17-10-30 (b). In both this and other jurisdictions, McClendon might well have been sentenced to death. In light of this fact, we can hardly *482 hold that a sentence denying McClendon consideration of parole for thirty years, under OCGA § 42-9-39 (c) to constitute "cruel and unusual punishment." See Gregg v....
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Seabolt v. State, 616 S.E.2d 448 (Ga. 2005).

Cited 11 times | Published | Supreme Court of Georgia | Jun 30, 2005 | 279 Ga. 518, 2005 Fulton County D. Rep. 2013

...The trial court specifically credited counsel's testimony, and was authorized to do so. See Curry v. State, 238 Ga.App. 511, 522(5), 519 S.E.2d 269 (1999). 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 advised Seabolt that he would be eligible for parole in nine years, and that without such an assurance, Seabolt would have chosen to go to trial....
...Second, counsel testified that he explored the implications of the two life sentences, and was told by a member of the Board of Pardons and Paroles that the two crimes for which Seabolt received life sentences would not be considered as connected within the meaning of OCGA § 42-9-39(c), and would not result in the same treatment as if Seabolt had "committed a double homicide . . . [which] would be a harsher sentence than a convenience store robbery and later on a killing." Counsel also testified that, under his own reading of OCGA § 42-9-39(c), the consecutive life sentences for armed robbery and murder did not require that the Board of Pardons and Paroles wait until Seabolt had served 20 years before considering him for parole....
...ber 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 OCGA § 42-9-39(c)....
...ich were alleged to have occurred on different dates than the armed robbery and murder charges, and involved different victims. The record does not show that any of these charges were transferred from juvenile court. See OCGA § 15-11-30.2. [6] OCGA § 42-9-39(c) reads: 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 ten-year p...
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Veal v. State, 810 S.E.2d 127 (Ga. 2018).

Cited 10 times | Published | Supreme Court of Georgia | Feb 5, 2018

...the State's recommended sentence without making an individualized determination regarding the appropriateness of the sentence pursuant to Miller . The new cumulative sentence amounts to eight consecutive life sentences plus 60 years. 1. 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....
...He argues that the sentence imposed on remand must be vacated and he must be resentenced to a term that does not result in a de facto LWOP sentence. We reject this challenge for the reasons set forth in Division 1. Judgment affirmed. All the Justices concur. OCGA § 42-9-39 (c) states: "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...
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Mikell v. State, 689 S.E.2d 286 (Ga. 2010).

Cited 10 times | Published | Supreme Court of Georgia | Feb 1, 2010 | 286 Ga. 434, 2010 Fulton County D. Rep. 253

...The analysis of such disparities may be more complicated, both because determining parole eligibility often requires looking beyond the terms of the charged offenses to consider the statutes, rules, and practices relating to parole, see, e.g., OCGA §§ 17-10-6.1, 17-10-7, 42-9-39, 42-9-40, and because the Board of Pardons and Paroles is independent of the district attorneys and generally has broad discretion to grant or deny parole, as is correctly noted in Hewitt, 277 Ga....
...At trial, appellant's counsel suggested that under OCGA § 17-10-6.1, Worthy was originally not parole-eligible, but the transcript does not indicate that Worthy was a recidivist and absent that, he was parole-eligible under that statute. Section 17-10-6.1(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....
...the testimony about Worthy's maximum sentence left the impression that, despite the dismissal of charges pursuant to his plea bargain, he would still serve a "life sentence"). However, in the discussion at trial, defense counsel never mentioned OCGA § 42-9-39, and in the absence of such argument or more evidence on this point, I believe it too speculative to assume that the trial court would have given Worthy consecutive, rather than concurrent, life sentences had he not pleaded guilty....
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Crowder v. State, 707 S.E.2d 78 (Ga. 2011).

Cited 8 times | Published | Supreme Court of Georgia | Mar 7, 2011 | 288 Ga. 739, 2011 Fulton County D. Rep. 549

...[2] Judgment vacated and case remanded with direction. All the Justices concur. NOTES [1] The crime was committed in January 2008. At that time, OCGA § 17-10-6.1(c)(1) (2007) provided as follows: Except 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 early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 30 years in prison....
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Westbrook v. State, 353 S.E.2d 504 (Ga. 1987).

Cited 6 times | Published | Supreme Court of Georgia | Mar 12, 1987 | 256 Ga. 776

...commend life without parole, see Quick v. State, 256 Ga. 780 (9) (353 SE2d 497) (1987). In particular, see fn. 3, at 787, for a suggested jury instruction concerning this issue. [3] We note that the defendant is now 50 years old, and that under OCGA § 42-9-39 (c), the defendant will not be eligible for consideration of parole until he has served 30 years of the sentences imposed in this case.
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Hood v. State, 884 S.E.2d 901 (Ga. 2023).

Cited 5 times | Published | Supreme Court of Georgia | Mar 7, 2023 | 315 Ga. 809

...And this was a very big deal to him considering the 30-year mark and that’s why I know that I went over the 30 years with him. 1 OCGA § 17-10-6.1 (c) (1) provides: Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board...
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Allen v. State, 902 S.E.2d 615 (Ga. 2024).

Cited 4 times | Published | Supreme Court of Georgia | May 29, 2024 | 319 Ga. 415

...Of course, murder is punishable by “death, . . . imprisonment for life without parole, or . . . imprisonment for life,” OCGA § 16-5-1 (e) (1), and requires that a defendant serve a minimum of 30 years before parole eligibility. See OCGA §§ 17-10-6.1 (c); 42-9-39 (c). 24 Applying this legal standard, as our case law requires, does not 58 State, 303 Ga....
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Veal v. State, 303 Ga. 18 (Ga. 2018).

Cited 4 times | Published | Supreme Court of Georgia | Feb 5, 2018

...and imposed the State’s recommended sentence without making an individualized determination regarding the appropriateness of the sentence pursuant to Miller. The new cumulative sentence amounts to eight consecutive life sentences plus 60 years. 1. 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....
...As noted by this Court in Veal I, those cases read together create a substantive rule that before an LWOP sentence may be imposed on one who was a juvenile at the time the crime was committed, the sentencing court must conduct a hearing to 1 OCGA § 42-9-39 (c) states: “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 ye...
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Polanco v. State, 313 Ga. 598 (Ga. 2022).

Cited 3 times | Published | Supreme Court of Georgia | Apr 19, 2022

...not require sentence that is below such mandatory minimum or provided that [specified circumstances exist]. 7 OCGA § 17-10-6.1 (c) (1) provides: Except as otherwise provided in subsection (c) of Code Section 42-9-39 [concerning the authority of the State Board of Pardons and Paroles], for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that person shall not be eligible fo...

Polanco v. State (Ga. 2022).

Published | Supreme Court of Georgia | Apr 19, 2022

...attorney and the defendant have agreed to a sentence that is below such mandatory minimum provided that [specified circumstances exist]. 7 OCGA § 17-10-6.1 (c) (1) provides: Except as otherwise provided in subsection (c) of Code Section 42-9-39 [concerning the authority of the State Board of Pardons and Paroles], for a first conviction of a serious violent felony in which the accused has been sentenced to life imprisonment, that person shall not be eligible fo...