Vacating of Sentence for Trafficking Victim Defendants

  1. Law
  2. Georgia Code
  3. Criminal Procedure
  4. Sentence and Punishment
  5. Procedure for Sentencing and Imposition of Punishment
  6. Vacating of Sentence for Trafficking Victim Defendants

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    1. A defendant convicted of an offense and sentenced as a direct result of the defendant being the victim of an offense of trafficking under Code Section 16-5-46 may petition the court imposing the sentence to vacate such conviction. Such court shall maintain the jurisdiction, power, and authority to vacate such conviction and sentence.
    2. The defendant shall serve the petition provided for under paragraph (1) of this subsection upon the prosecuting attorney, and such petition:
      1. Shall be submitted on a form promulgated by the Attorney General;
      2. Shall be submitted no earlier than six months following conviction and sentencing for a misdemeanor offense or no earlier than one year following completion of the sentence for a felony offense;
      3. Shall be submitted with a copy of his or her criminal history background check report conducted by the Georgia Crime Information Center that has been completed no more than three business days prior to the filing of the petition; provided, however, that the defendant shall not be charged a fee by the Georgia Crime Information Center for a report produced for purposes of this Code section; and
      4. May include documentation of a defendant's status as a victim of an offense of trafficking under Code Section 16-5-46 at the time of the offense; provided, however, that official documentation shall not be required to obtain relief under this Code section. Such documentation shall create a rebuttable presumption that the defendant was a victim of trafficking under Code Section 16-5-46. As used in this subparagraph, the term "official documentation" includes, but is not limited to, the following:
        1. A copy of an official record, certification, or eligibility letter from a federal, state, tribal, or local proceeding showing that the defendant was a victim of trafficking under Code Section 16-5-46;
        2. An affidavit, a letter, or sworn testimony from a member of the clergy, medical professional, member of a victim services organization, or certified, licensed, or registered professional from whom the defendant has sought assistance, counseling, or legal counsel related to his or her victimization; or
        3. Any other evidence that the court determines is of sufficient credibility or probative value.
    3. No defendant with an outstanding warrant issued by a jurisdiction in this state or any other state or by the United States shall file a petition provided for under paragraph (1) of this subsection.
    4. If the prosecuting attorney, to the court, consents in writing to the vacatur of such conviction or fails to respond to such petition within 30 days of service, the court imposing the conviction and sentence shall, without notice or hearing, issue an order vacating the conviction and sentence and shall also issue an order restricting access to criminal history record information for such offense.
      1. If the prosecuting attorney, to the court, objects in writing to the petition, the court shall hold a hearing within 90 days of the filing of the petition. The court shall hear evidence and determine, by a preponderance of the evidence, whether the defendant committed such offense as a direct result of being the victim of an offense of trafficking under Code Section 16-5-46. If the court finds, by a preponderance of the evidence, that the defendant committed such offense as a direct result of being the victim of an offense of trafficking under Code Section 16-5-46, the court may issue an order vacating the conviction and sentence.
      2. If such order to vacate is issued, the court shall also issue an order restricting access to criminal history record information for such offense and no fee shall be charged by the Georgia Crime Information Center or any other entity for restricting access to criminal history record information under this paragraph.
      3. As used in this paragraph, the term "restrict" shall have the same meaning as set forth in Code Section 35-3-37.
  2. When the petition provided for under subsection (a) of this Code section is filed, it shall be filed under seal.
  3. For any sentence vacated pursuant to this Code section, any fines and fees paid by the defendant under such sentence shall be returned to the defendant in the amount paid by the defendant.
  4. For purposes of considering such petition, testimony from the defendant or any other party may be taken by the court by remote electronic means.

(Code 1981, §17-10-21, enacted by Ga. L. 2020, p. 90, § 2/SB 435.)

Editor's notes.

- Ga. L. 2020, p. 90, § 1/SB 435, not codified by the General Assembly, provides: "This Act shall be known and may be cited as 'The Survivors First Act.' "

ARTICLE 2 DEATH PENALTY GENERALLY

Cross references.

- Constitutional guarantee against deprivation of life without due process, Ga. Const. 1983, Art. I, Sec. I, Para. I.

Law reviews.

- For article, "Death Penalty," see 66 Mercer L. Rev. 51 (2014). For annual survey on death penalty law, see 70 Mercer L. Rev. 73 (2018). For note on 2000 amendments of O.C.G.A. §§ 17-10-33,17-10-38,17-10-41, and17-10-44, see 17 Ga. St. U.L. Rev. 116 (2000). For note, "An Aggravating Adolescence: An Analysis of Juvenile Convictions as Statutory Aggravators in Capital Cases," see 51 Ga. L. Rev. 673 (2017).

U.S. Code.

- Stay of execution, Federal Rules of Criminal Procedure, Rule 38.


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