(Code 1981, §17-10-6.2, enacted by Ga. L. 2006, p. 379, § 21/HB 1059; Ga. L. 2013, p. 222, § 9/HB 349; Ga. L. 2017, p. 489, § 5/HB 341; Ga. L. 2019, p. 912, § 3/SB 9.)
The 2019 amendment, effective July 1, 2019, rewrote paragraph (a)(7), which formerly read: "Sexual assault against persons in custody, in violation of Code Section 16-6-5.1;".
Editor's notes.- Ga. L. 2006, p. 379, § 1/HB 1059, not codified by the General Assembly, provides that: "The General Assembly finds and declares that recidivist sexual offenders, sexual offenders who use physical violence, and sexual offenders who prey on children are sexual predators who present an extreme threat to the public safety. Many sexual offenders are extremely likely to use physical violence and to repeat their offenses; and some sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. The General Assembly finds that this makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant. The General Assembly further finds that the high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
"(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
"(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
"(3) Providing for community and public notification concerning the presence of sexual offenders;
"(4) Collecting data relative to sexual offenses and sexual offenders;
"(5) Requiring sexual predators who are released into the community to wear an electronic monitoring system for the rest of their natural life and to pay for such system; and
"(6) Prohibiting sexual predators from working with children, either for compensation or as a volunteer.
"The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. The designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes. Likewise, the designation of a person as a sexual predator is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from findings by the Sexual Offender Registration Review Board and a court if requested by a sexual offender."
Ga. L. 2006, p. 379, § 30(c)/HB 1059, not codified by the General Assembly, provides 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."
Ga. L. 2013, p. 222, § 21/HB 349, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2013, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2013, shall be governed by the statute in effect at the time of such offense."
Law reviews.- For article, "Appeal and Error: Appeal or Certiorari by State in Criminal Cases," see 30 Ga. St. U.L. Rev. 17 (2013). For annual survey on criminal law, see 66 Mercer L. Rev. 37 (2014). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017).
JUDICIAL DECISIONS
Construction with § 17-10-1. - Pursuant to O.C.G.A. § 16-13-31(g)(1), the trial court lacked the authority to probate or suspend sentences imposed against two defendants in unrelated criminal actions, and neither the 2004 nor the 2006 amendments to the general sentencing provisions under O.C.G.A. § 17-10-1(a)(1) were relevant; moreover, because O.C.G.A. §§ 17-10-6.1 and17-10-6.2 were statutes that defined certain categories of crimes and provided the sentencing guidelines for those categories, it did not appear that the list of these two exceptions normally would have included § 16-13-31 or any other specific criminal statute, and any omission would be significant only with regard to a statute that defined classes or categories of crimes. Gillen v. State, 286 Ga. App. 616, 649 S.E.2d 832 (2007), cert. denied, No. S07C1780, 2007 Ga. LEXIS 809 (Ga. 2007).
"Sexual offense" applies only to section.
- O.C.G.A. § 17-10-6.2 does not explain when registration as a sex offender is required but rather proscribes the mandatory minimum sentence for individuals convicted of a "sexual offense" and sets forth circumstances under which the trial court may depart from that sentence. The definition of "sexual offense" in § 17-10-6.2 has no application beyond that Code section. Phillips v. State, 298 Ga. App. 520, 680 S.E.2d 424 (2009).
Interpretation of "any portion thereof" in sentencing.
- Defendant's sentence for statutory rape was affirmed because the "any portion thereof" language in O.C.G.A. § 17-10-6.2(c)(1) indicated that the legislature's intent was not to allow the trial court to deviate from the entirety of § 17-10-6.2(b), but rather to grant the trial court discretion to deviate only from the mandatory minimum sentence guidelines. Tew v. State, 320 Ga. App. 127, 739 S.E.2d 423 (2013).
Not applicable to crime committed before effective date.
- Because O.C.G.A. § 17-10-6.2 was not in effect when the defendant committed the charged crime, the trial court committed no error in failing to apply its provisions when resentencing the defendant. Richardson v. State, 334 Ga. App. 344, 779 S.E.2d 406 (2015).
Intentional physical harm explained.
- Term intentional physical harm as used in O.C.G.A. § 17-10-6.2(c)(1)(D) refers to conduct by the defendant involving the intentional infliction of physical pain or injury upon the victim and that, consequently, evidence that the underlying sexual offense involved offensive and unwanted touching of the victim did not, standing alone, create a presumption of intentional physical harm that precluded a defendant from satisfying the criteria for release under the statute. State v. Randle, 331 Ga. App. 1, 769 S.E.2d 724 (2015).
Phrase "intentional physical harm," as it was used in O.C.G.A. § 17-10-6.2(c)(1)(D), providing conditions for release from the sex offender registry, meant intentional physical contact that caused actual physical damage, injury, or hurt to the victim; a sex offender registrant was entitled to release from registration because the registrant's unwanted touching of a ten-year-old boy's penis did not constitute such physical damage, injury, or hurt. State v. Randle, 298 Ga. 375, 781 S.E.2d 781 (2016).
Following the interpretation of O.C.G.A. § 17-10-6.2(c)(1)(D) set forth by the Georgia Supreme Court in Randle II, the Georgia Court of Appeals concludes that the phrase intentional physical harm as used in the statute means a specific intent to commit the act that causes the physical damage, injury, or hurt to the victim. Strickland v. State, 347 Ga. App. 216, 818 S.E.2d 675 (2018).
Denial of petition for release from requirement to register.
- Trial court did not abuse the court's discretion by denying the defendant's petition for release from the requirement to register as a sexual offender for life as the defendant failed to make a prima facie showing that the defendant was no longer a substantial risk of reoffending since an agency abuse case was pending against the defendant, which required a child of the defendant to not bring any children around the defendant, and the defendant characterized the conduct involving the child molestation of the defendant's three children as a mistake, which everyone makes. Miller v. State, 291 Ga. App. 478, 662 S.E.2d 261 (2008).
Trial court did not abuse the court's discretion by denying a defendant's petition seeking relief from the sexual offender registration requirements, pursuant to O.C.G.A. § 42-1-12(g)(1), because the defendant failed to provide a report from a licensed psychiatrist that allegedly set forth an opinion that the defendant posed no threat whatsoever of reoffending. Further, the defendant failed to provide any additional information regarding the underlying conduct for the out-of-state conviction that required the registration. In re Baucom, 297 Ga. App. 661, 678 S.E.2d 118 (2009).
Defendant's confinement in a probation detention center was not equivalent to confinement in prison for purposes of O.C.G.A. § 42-1-12(g) and therefore the ten year waiting period for release from sex offender registration requirements did not begin running upon the defendant's release from the center, but from the date the defendant was released from probation. The trial court did not err in finding that the defendant was sentenced pursuant to O.C.G.A. § 17-10-6.2(c), although that section was not enacted until after the defendant's conviction. In re White, 306 Ga. App. 365, 702 S.E.2d 694 (2010).
Trial court erred when the court denied the defendant's petition for release from the requirement to register as a sex offender and failed to determine whether the defendant ever touched a woman who testified at the criminal trial without the woman's consent, thereby committing a sexual offense; thus, since neither the verdict nor the evidentiary ruling in the defendant's case conclusively established that the encounter was a "relevant similar transaction," further proceedings were necessary. Yelverton v. State of Georgia, 300 Ga. 312, 794 S.E.2d 613 (2016).
Motion to be removed from sex offender registry properly denied.
- Trial court properly denied a defendant's motion to remove the defendant from the sex offender registry, or in the alternative to be resentenced as a first offender, as the United States Supreme Court had already determined that retroactive registration of sex offenders was nonpunitive and did not constitute an ex post facto law, and to resentence the defendant as a first offender would be in direct contravention of the plain language of O.C.G.A. §§ 17-10-6.1 and42-1-12 since the defendant pled guilty but mentally ill to kidnaping a child under the age of 14, which was a serious violent felony. Finnicum v. State, 296 Ga. App. 86, 673 S.E.2d 604 (2009).
Release from registration requirements proper.
- Trial court did not abuse the court's discretion in releasing the defendant from the sex offender registration requirements because under O.C.G.A. § 17-10-6.2(c)(1)(D) there was evidence that the underlying child molestation offense consisted of the defendant touching the genitals of the child victim with the defendant's hands, thus, the sexual offense did not rise to the level of intentional physical harm so as to preclude release from the registration requirements. State v. Randle, 331 Ga. App. 1, 769 S.E.2d 724 (2015).
Considering relevant similar transaction when sentencing.
- Trial court properly refused to deviate from the mandatory minimum sentence for child molestation under O.C.G.A. § 17-10-6.2(c)(1)(C) because the court found the defendant's conviction for sexual exploitation of children was a relevant similar transaction and the phrase relevant similar transaction under § 17-10-6.2(c)(1)(C) included a conviction for a sexual offense charged within the same indictment as the offense for which a deviation from the mandatory minimum sentence was considered. Evans v. State, 334 Ga. App. 104, 778 S.E.2d 360 (2015), aff'd, 300 Ga. 271, 794 S.E.2d 40 (Ga. 2016).
When the trial court considers sentencing on any specific count, a similar act not included in that count is independent to it such that, even if it is charged in the same indictment, it can be a "relevant similar transaction" so as to preclude a downward modification of sentencing; thus, the phrase "relevant similar transaction" used in O.C.G.A. § 17-10-6.2 includes sexual offenses charged in the same indictment as the crime for which sentence is imposed. Therefore, the commission of multiple separate sexual offenses may, or may not, be prosecuted as one action, but the presence of such relevant similar transactions prevents a downward modification of the sentence to be afforded such an offender, regardless of the specifics of the prosecution. Evans v. State, 300 Ga. 271, 794 S.E.2d 40 (2016).
When the defendant was indicted on one count of child molestation, that was alleged to have occurred between January 1, 2009 and August 31, 2009, and two counts of sexual exploitation of children, that were alleged to have occurred on or about January 21, 2010, because the acts that the defendant was convicted of committing were well separated in time and were not part of one sequence of events, the trial court was correct to consider the act of sexual exploitation of a child to be a relevant similar transaction that precluded a downward modification of sentencing for the crime of child molestation. Evans v. State, 300 Ga. 271, 794 S.E.2d 40 (2016).
When the defendant was indicted on one count of child molestation and two counts of sexual exploitation of children, the trial court did not err in opining that the court could not sentence the defendant to less than the mandatory minimum of five years to serve in prison for the child molestation conviction because the conviction for sexual exploitation of children was a relevant similar transaction, which precluded a downward deviation under O.C.G.A. § 17-10-6.2; and the trial court did not err in sentencing the defendant to 20 years, with five years to be served in prison, on the child molestation charge, and a concurrent sentence of five years to be served in prison for the sexual exploitation conviction. Evans v. State, 300 Ga. 271, 794 S.E.2d 40 (2016).
First offender consideration appropriate for rapist.
- Based on the plain language of O.C.G.A. §§ 17-10-6.2(a)(4) and42-8-60(d)(2), a defendant who commits statutory rape is excluded from first offender consideration only if the defendant was 21 years of age or older. Thus, a defendant who was 18 at the time of the offense and 19 at the time of the conviction was eligible for first offender consideration. Planas v. State, 296 Ga. App. 51, 673 S.E.2d 566 (2009).
First offender consideration not appropriate.
- Because the defendant was not entitled to first offender treatment for the crimes of child molestation and enticing a child for indecent purposes, to which the defendant pled guilty, the defendant's claims that trial counsel was deficient for misinforming the defendant about the defendant's eligibility for and failing to request first offender treatment were without merit. Harris v. State, 325 Ga. App. 568, 754 S.E.2d 148 (2014), recons. denied, 2019 U.S. App. LEXIS 30410 (11th Cir. Ga. 2019), overruled on other grounds by Collier v. State, 834 S.E.2d 769, 2019 Ga. LEXIS 708 (Ga. 2019).
Sentencing discretion.
- Trial court erred in determining that the court was without discretion to deviate from the minimum sentencing requirements of O.C.G.A. § 17-10-6.2(b), and the court of appeals erred in affirming that ruling because the defendants were charged with possession of material in violation of O.C.G.A. § 16-12-100(b)(8) and, therefore, it would have to be shown that the child victims in the images that were stored in the defendants' computers were physically restrained at the same time that the defendants possessed the offending material in order for O.C.G.A. § 17-10-6.2(c)(1)(F) to exclude the trial court from having the sentencing discretion set forth in O.C.G.A. § 17-10-6.2(c)(1), but no such evidence existed; O.C.G.A. § 17-10-6.2(c)(1)(F) precludes the trial court from exercising sentencing discretion when the victim was physically restrained during the commission of the offense, and the use of the words "during the commission of the offense" in O.C.G.A. § 17-10-6.2(c)(1)(F) must be given effect. Hedden v. State, 288 Ga. 871, 708 S.E.2d 287 (2011).
Trial court erred in sentencing the defendant on each of the defendant's three convictions for child molestation to a term of confinement rather than exercising the court's discretion and imposing split sentences of confinement and probation because the defendant had no prior conviction for child molestation. Watkins v. State, 336 Ga. App. 145, 784 S.E.2d 11 (2016).
Defendant's sentence on Count 2 of six years, to serve five, fell within the applicable statutory range of sentencing, according to the provisions of the law existing in 2003 and 2004, for a first offense of child molestation; thus, the defendant's sentence was legally authorized and not subject to review. Wilder v. State, 343 Ga. App. 110, 806 S.E.2d 200 (2017).
Sentencing errors.
- Resentencing on defendant's convictions for child molestation and statutory rape was necessary because the trial court failed to impose split sentences for child molestation, and the probation only sentences for statutory rape were void because the trial court was precluded from probating any portion of the sentence for statutory rape. Daniels v. State, 344 Ga. App. 190, 809 S.E.2d 473 (2018).
Defendant's sentences on four incest counts were void because the sentences did not each include a split sentence of incarceration and probation as required by the former version of O.C.G.A. § 17-10-6.2(b) applicable at the time the defendant committed those offenses. Torres v. State, 353 Ga. App. 470, 838 S.E.2d 137 (2020).
Imposition of hybrid sentence.
- Discretion afforded to trial courts at sentencing included the authority to impose partially consecutive and partially concurrent sentences, such that the probationary component of a split sentence could be served concurrently with a period of confinement imposed by the sentence on another count. State v. Riggs, 301 Ga. 63, 799 S.E.2d 770 (2017).
Sentence violated minimum sentencing requirements.
- In a child molestation case, the trial court erred in sentencing the defendant to ten years to serve on Count 1 and probation on the remaining four counts, with the first 10 years to be served in confinement and the remainder to be served on probation, and the defendant's sentence was void because the defendant was not properly sentenced under the sexual offenders punishment statute as the sentence did not consist of a minimum term of imprisonment for child molestation, followed by an additional probated sentence of at least one year on each offense; no portion of the mandatory minimum sentence imposed could be suspended, stayed, or probated; and the trial court did not enter written findings necessary to deviate from the mandatory minimum. Brown v. State, 345 Ga. App. 622, 814 S.E.2d 738 (2018).
Application of split-sentence requirement.
- Split-sentence requirement applied to each sexual offense count, not to the overall sentence as alleged by the state. State v. Riggs, 301 Ga. 63, 799 S.E.2d 770 (2017).
Failure to impose a "split sentence".
- Because the trial court sentenced the defendant on each count of child molestation to twenty years imprisonment, and did not impose a "split sentence" including probation as required, the sentences were void. Spargo v. State, 332 Ga. App. 410, 773 S.E.2d 35 (2015).
Defendant's sentences were void because the trial court failed to impose split sentences on the defendant's child molestation convictions, as required by O.C.G.A. § 17-10-6.2(b), which required a total sentence that included at least a mandatory-minimum five-year prison sentence and one year of probation. Jackson v. State, 338 Ga. App. 509, 790 S.E.2d 295 (2016).
Trial court was required to impose a sentence for the defendant's child molestation conviction that included at least the mandatory minimum of five years to serve in prison plus at least one year of probation, or to issue a written order setting forth its reasons for imposing a sentence below the statutory minimum, but the defendant was sentenced only to probation on the child molestation count, and no written findings were made by the trial court to support the deviation from the mandatory minimum term of imprisonment; thus, the defendant raised a colorable claim that the defendant's sentence was void in the defendant's motion to vacate void sentence. Hood v. State, 343 Ga. App. 230, 807 S.E.2d 10 (2017).
Trial court committed error requiring that the defendant's sentence be vacated when the court sentenced the defendant to 20 years in prison but failed to include at least one year of probation as required by statute. Hughes v. State, 341 Ga. App. 594, 802 S.E.2d 30 (2017).
Defendant's sentence for child molestation was improper because the sentence failed to include a split sentence. Underwood v. State, 344 Ga. App. 403, 810 S.E.2d 315 (2018).
Defendants convicted of the rape and molestation of one defendant's step-daughters failed to show their separate counsel were ineffective; however, their sentences failed to include a split sentence as required by former O.C.G.A. § 17-10-6.2 and failed to include the five-year statutory minimum for child molestation under O.C.G.A. § 16-6-4(b)(1). The 2017 amendments to § 17-10-6.2 did not apply retroactively. Hardin v. State, 344 Ga. App. 378, 810 S.E.2d 602 (2018).
Trial court erred when the court sentenced the defendant on the first count to ten years in prison with no probation because a split sentence was required. Cobb v. State, Ga. App. , 843 S.E.2d 912 (2020).
Resentencing on the sodomy counts was required because the trial court failed to impose a split sentence. Jones v. State, 354 Ga. App. 568, 841 S.E.2d 112 (2020).
Corrected sentence remained void because the trial court failed to impose a split sentence on the statutory rape and child molestation charges because those offenses were subject to the split sentence requirements, which required split sentences for each count. When the trial court resentenced the defendant in 2018, the court was still required to impose a split sentence on each count as required by the statute in effect at the time the defendant committed the crimes. Martinez-Chavez v. State, 352 Ga. App. 142, 834 S.E.2d 139 (2019).
Trial court's denial of the defendant's motion to vacate sentences for child molestation, aggravated child molestation, and incest was upheld because to apply the split-sentencing provisions to pre-2006 law would require the court to re-write applicable statutes to make them subject to statutory provisions that did not even exist at the time the statutes were enacted, which the court was prohibited to do without contravening the plain meaning of the statutory text. Bryson v. State, 350 Ga. App. 206, 828 S.E.2d 450 (2019).
Downward departure proper.
- State's contention that the defendant's previous acts of viewing pornography on a cell phone app should have been treated as relevant similar transactions so as to divest the trial court of the court's discretion to downwardly deviate from the mandatory minimum sentence was rejected because the state presented scant evidence about the defendant's previous conduct other than to show when the defendant first started using the app and the trial court gave sound reasons why the court rejected the state's assertion. State v. McCauley, 353 Ga. App. 94, 834 S.E.2d 567 (2019).
Denial of downward departure proper.
- Because the acts that the defendant was convicted of committing were separated in time and were not part of one sequence of events, the trial court was correct to consider one act of child molestation to be a "relevant similar transaction" that precluded a downward modification of sentencing for the other crime of child molestation. Koroma v. State, 350 Ga. App. 530, 827 S.E.2d 903 (2019), cert. denied, 2020 Ga. LEXIS 35 (Ga. 2020).
O.C.G.A. § 17-10-6.2(a) provided that the term "sexual offense" included the crime of child molestation, but did not include aggravated child molestation or cruelty to children; thus, the trial court did not err in failing to apply the split sentence provision in § 17-10-6.2(b) to the defendant's sentences for aggravated child molestation and cruelty to children; however, the 20-year sentence imposed for child molestation did not include at least one year of probation and was void. Whitelock v. State, 349 Ga. App. 28, 825 S.E.2d 426 (2019).
Resentencing on rape charge appropriate.
- Because the defendant could have been convicted of statutory rape based on acts committed both before or after the change in the law, the defendant's sentence for statutory rape was vacated and the case was remanded for resentencing pursuant to O.C.G.A. § 17-10-6.2. Bryson v. State, 350 Ga. App. 206, 828 S.E.2d 450 (2019).
No application to attempted crimes.
- With regard to the defendant's conviction for criminal attempt to commit child molestation and related crimes, the trial court did not err by refusing to follow the guidelines set forth in O.C.G.A. § 17-10-6.2 for sexual offenses because the statute only applied to completed crimes, not to attempted crimes. Castaneira v. State, 321 Ga. App. 418, 740 S.E.2d 400 (2013).
Cited in Sosniak v. State, 292 Ga. 35, 734 S.E.2d 362 (2012); Hayward v. Danforth, 299 Ga. 261, 787 S.E.2d 709 (2016); State v. Cash, 302 Ga. 587, 807 S.E.2d 405 (2017); Owens v. State, 353 Ga. App. 848, 840 S.E.2d 70 (2020); Slack v. State, 354 Ga. App. 727, 841 S.E.2d 231 (2020).
RESEARCH REFERENCES
Am. Jur. 2d.
- 53 Am. Jur. 2d, Mentally Impaired Persons, § 144 et seq.
C.J.S.- 24 C.J.S., Criminal Procedure and Rights of the Accused, § 2183 et seq.
ALR.- Validity, construction, and application of state statute including "sexually motivated offenses" within definition of sex offense for purposes of sentencing or classification of defendant as sex offender, 30 A.L.R.6th 373.
Removal of adults from state sex offender registries, 77 A.L.R.6th 197.