Sunday, November 21, 2010

Theft by Shoplifting - What to do?

What is Theft by Shoplifting?


If you or someone you know has been charged with Theft by Shoplifting, then you need to know some basics.  Please be aware that these are just the basics.   The official code section is O.C.G.A. § 16-8-14.

Georgia Definition of Theft by Shoplifting

A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following:

(1)   Conceals or takes possession of the goods or merchandise of any store or retail establishment;

(2)   Alters the price tag or other price marking on goods or merchandise of any store or retail establishment;

(3)   Transfers the goods or merchandise of any store or retail establishment from one container to another;

(4)   Interchanges the label or price tag from one item of merchandise with a label or price tag for another item of merchandise; or

(5)   Wrongfully causes the amount paid to be less than the merchant's stated price for the merchandise.

Most convictions are obtained based upon (1) above.  It is important to realize that a person does not have to actually take the merchandise out of the store in order to be charged.

Punishment for Theft by Shoplifting

If the property allegedly stolen is less than $300 in value, then the offense is a simple misdemeanor and the max punishment is one year of confinement and a $1000 fine.  If the property value is $300 or more, the offense is a felony and the possible sentence is a maximum of 10 years.

Finally, a fourth shoplifting offense is automatically treated as a felony regardless of the property value.

Possible Defenses to Theft by Shoplifting

This is not meant to be an exhaustive list of all possible defenses.  Every situation is unique and must be considered based upon the facts associated with the specific case.  Having said that, here are some things to consider.

  1. Not me – you got the wrong guy (or gal).
  2. I was going to pay.  (Read the cases below)
  3. The property does not cost $300. (for felony cases)
  4. Mistake – I didn’t realize I didn’t pay for that.

Interesting Cases concerning Theft by Shoplifting

Racquemore v. State, 204 Ga. App. 88, 418 S.E.2d 448 (1992) - The state proved the element of intent to appropriate the merchandise for defendant's own use, where defendant was seen stuffing two packages of meat into the waist of defendant's trousers and pulling defendant's shirt down over them, but returned the meat to the display case after the store security guard and store manager started watching defendant's actions and following defendant.

Taylor v. State, 270 Ga. App. 637, 607 S.E.2d 163 (2004) - Because a co-manager of a grocery store saw defendant, who was pushing a shopping cart, take a package of ham hocks and some tomatoes and place them in defendant's purse, and when defendant approached the checkout counter, the co-manager confronted defendant and defendant retreated into the store and discarded the two items on a display, the evidence was sufficient to support a shoplifting conviction; the question of whether defendant's placement of the goods in the purse showed an intent to commit theft by shoplifting was one for the jury and the conviction was affirmed.

Simmons v. State, 278 Ga. App. 372, 629 S.E.2d 86 (2006) - Defendant's act of concealing liquor bottles in the defendant's pants, with no intent to pay for them, despite the fact that the defendant put the bottles back on the shelf before leaving the store, was sufficient to support a conviction.

What should I do?

Pick up the phone and call.  My office number is 678-383-1690.  I will discuss your case with you and help you determine what the next step is.

Wednesday, November 3, 2010

Removal from Georgia Sex Offender Registry


Overview

            In most cases, the most severe criminal sanction involves incarceration.  However, in cases involving sex offenses, a lifelong requirement to register as a sex offender is a disastrous consequence preventing individuals from obtaining employment and pursuing other endeavors.   Many defendants find the lifelong registration requirement devastating.

            There is good news.  Recently, the legislature enacted O.C.G.A. § 42-1-9, a means by which certain Sex Offenders may seek removal from the Sex Offender Registry.  It is not easy and it is not available to every offender.  The first step is to determine eligibility.

Specifics

Everyone on the registry wants to be removed.  What does it take?  To be eligible, the offender must fall in one of the four categories:

1.)      Disabled Persons:  The Offender must have completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12; and

·        be confined to a hospice facility, skilled nursing home, residential care facility for the elderly, or nursing home; or
·        be totally and permanently disabled as such term is defined in Code Section 49-4-80; or
·        be otherwise seriously physically incapacitated due to illness or injury;

2.)      Romeo & Juliet:  The Offender was sentenced for a crime that became punishable as a misdemeanor on or after July 1, 2006, and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2;

3.)      Non-sexual Offense:  The Offender was required to register solely because he or she was convicted of kidnapping or false imprisonment involving a minor and such offense did not involve a sexual offense against such minor or an attempt to commit a sexual offense against such minor. For purposes of this paragraph, the term "sexual offense" means any offense listed in division (a)(10)(B)(i) or (a)(10)(B)(iv) through (a)(10)(B)(xix) of Code Section 42-1-12; or

4.)      Everyone Else:  The Offender has completed all prison, parole, supervised release, and probation for the offense which required registration pursuant to Code Section 42-1-12 and meets the criteria set forth in subparagraphs (c)(1)(A) through (c)(1)(F) of Code Section 17-10-6.2. and

·        either ten years have elapsed since the end of the sentence or
·        the Offender is considered a Level I risk by the Sex Offender Review Board.

The disqualifiers mentioned in O.C.G.A. § 17-10-6.2 are:

(A)   The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B)   The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C)   The court has not found evidence of a relevant similar transaction;

(D)   The victim did not suffer any intentional physical harm during the commission of the offense;

(E)    The offense did not involve the transportation of the victim; and

(F)    The victim was not physically restrained during the commission of the offense.

Next Steps

            If you meet the eligibility requirements, then you may file a Petition for Removal from the Sex Offender Registry.  Additional requirements exist regarding venue, proper service of the petition, proper requirements for requesting a hearing, and necessary requests for relief.   Therefore, the assistance of legal counsel is critical.  Should your Petition fail for some reason, you must wait two years to file another Petition.

If you need help, call me at 678-383-1690 or visit my website at http://www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Saturday, October 30, 2010

Georgia First Offender Act

Georgia First Offender Act

The First Offender Act is an alternative sentencing mechanism that allows someone to accept responsibility for a mistake, pay his or debt to society, and avoid the label “Convicted Felon”.
Sentencing under the First Offender Act is discretionary and only available once. O.C.G.A. § 42-8-60 states:
(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:
(1) Defer further proceeding and place the defendant on probation as provided by law; or
(2) Sentence the defendant to a term of confinement as provided by law.
Pursuant to O.C.G.A. § 42-8-62, “[u]pon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8- 63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.”
The First Offender Act is a “double-edged” sword. Under O.C.G.A. § 42-8-60, “[u]pon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law.”

What happens if I violate the terms of probation

Upon a revocation of a defendant previously sentenced under the First Offender Act, the Court which sentenced the defendant may resentence him/her to the maximum sentence penalty allowable under the law.

What Crimes are not available for First Offender Treatment

First Offender Sentencing is not available to defendants in the following classes of cases:
(1) A serious violent felony as defined in Code Section 17-10- 6.1;
(2) A sexual offense as defined in Code Section 17-10-6.2;
(3) Sexual exploitation of a minor as defined in Code Section 16-12-100;
(4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12-100.1; or
(5) Computer pornography and child exploitation, as defined in Code Section 16-12-100.2.

Interesting First Offender Cases

Wilson v. State, 259 Ga. App. 627, 578 S.E.2d 260 (2003) - Under O.C.G.A. § 42-8-60(a), a trial court may place a first offender defendant on probation or sentence the defendant to a term of confinement as provided by law and nothing in the statute mandates a probationary period for first offenders; on the contrary, a trial court exercises its discretion in determining whether to grant probation to a first offender. Therefore, defendant, who was sentenced as recommended by the plea agreement, properly had defendant's motion to correct sentence denied.
State v. Stulb, 296 Ga. App. 510, 675 S.E.2d 253 (2009). After a defendant was convicted for statutory rape, the trial court lacked jurisdiction to resentence the defendant as a first offender or to rescind the conviction or confinement portion of the sentence. First offender treatment was only permitted before a defendant had been adjudicated guilty and sentenced.
Crawford v. State, 166 Ga. App. 272, 304 S.E.2d 443 (1983). The trial court does not err in imposing a greater sentence on defendant than the original first offender sentence, in revoking defendant's earlier probation, where the first offender sentence of probation plainly stated, "If such probation is revoked or cancelled, the court may adjudge the defendant guilty of the above offense and impose any sentence permitted by law for the ... offense."
If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.

Friday, October 29, 2010

Aggravated Assault in Georgia

What about Aggravated Assault?

If you or someone you know has been charged with Aggravated Assault, then you need to know some basics. Please be aware that these are just the basics.

Georgia Definition of Aggravated Assault

A person commits the offense of aggravated assault when he or she assaults:

(1) With intent to murder, to rape, or to rob;

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or

(3) A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

Punishment for Aggravated Assault

Generally, the punishment is a max of 20 years. However, depending on the status of the victim, there can be certain mandatory minimums and higher maximums.

Possible Defenses to Aggravated Assault

This is not meant to be an exhaustive list of all possible defenses. Every situation is unique and must be considered based upon the facts associated with the specific case. Having said that, here are some things to consider.
  1. Not me – you got the wrong guy (or gal).
  2. Self-Defense – I was afraid for my safety or someone else’s safety.
  3. No deadly weapon – I had a cell phone not a gun;
  4. Victim didn’t know – The victim was unconscious, asleep, or otherwise incapacitated. (Patterson v. State, 192 Ga. App. 449, 385 S.E.2d 311).

Interesting Cases concerning Aggravated Assault

Robertson v. State, 245 Ga. App. 649, 538 S.E.2d 755 (2000). - When a defendant intentionally shoots several times into a group of people intending to harm only one of them, a jury would be authorized to find defendant guilty of aggravated assault against each person in the group.
Miller v. State, 292 Ga. App. 641, 666 S.E.2d 35 (2008). In an aggravated assault case, since no witness saw a weapon or "sharp instrument" as alleged in the indictment, evidence that as a result of the defendant's attack, the victim suffered a clean cut from the forehead to the lip was sufficient to allow the jury to infer that the wound was caused by a sharp instrument. Evidence as to wounds inflicted was sufficient for a jury to infer a weapon's character.
Haugland v. State, 253 Ga. App. 423, 560 S.E.2d 50 (2002). Jury could find that a defendant's hands and feet, depending upon their use, wounds inflicted, and other surrounding circumstances, were deadly weapons or objects likely to result in serious bodily injury when used offensively against a person for purposes of aggravated assault under O.C.G.A. § 16-5-21(a)(2).

What should I do?

Pick up the phone and call. My office number is 678-383-1690. I will discuss your case with you and help you determine what the next step is.

If you need help, call me at 678-383-1690 or visit my website at www.napierlawllc.com. If for whatever reason I can't help you, I'll point you in the direction of someone who can.