Does Georgia have mandatory minimum sentences?

With regards to crimes committed in Georgia that are pending in State or Superior Court, the judges have wide discretion in fashioning a sentence. There are no “sentencing guidelines” like those that are used in the Federal system. As long as the judge’s sentence falls within with the minimum and the maximum sentence, then it will be a legal sentence.

While many felony statutes are written to require a sentence of “at least one year,” O.C.G.A. § 17-10-1 allows for that time to be probated in the judge’s discretion.

There are some crimes in Georgia that do have mandatory minimums. The judge cannot go below the mandatory minimum, and any time included in the sentence must be served in prison. Some examples of those crimes are the ones listed in O.C.G.A. § 17-10-6.1 defining “serious violent felonies.” Those crimes include kidnapping, armed robbery, rape, aggravated sodomy, aggravated sexual battery, and aggravated child molestation. These offenses are sometimes referred to as the “seven deadly sins.”

For example, the sentencing provision for armed robbery allows for a sentence to be between 10 and 20 years, or a life sentence. O.C.G.A. § 16-8-41. If someone gets the mandatory minimum, they must serve all 10 years of that sentence in prison and without the possibility of parole.

The only way to get around the mandatory minimum for a serious violent felony is if the State agrees to go below the mandatory minimum. O.C.G.A. § 17-10-1(e) allows a judge to depart from the mandatory minimum “when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.”

Some other crimes that have mandatory minimums include trafficking of illegal drugs. For example, if someone is convicted of trafficking heroin by possessing more than 4 grams of heroin, then the judge must sentence that person to five years in prison. The five year mandatory minimum cannot be probated. The statute allows a judge to depart from the mandatory minimum if the defendant gave “substantial assistance” to the State. The statute also allows for a judge to depart from the mandatory minimum if a number of factors are met. Those factors are as follows: that the defendant was not a leader of the criminal conduct, the defendant did not possess a weapon, there was no serious injury from the criminal conduct, the defendant does not have any prior felony convictions, and that the interest of justice will not be served by the imposition of a mandatory minimum.

If you are charged with an offense that has a mandatory minimum, or you are concerned that a mandatory minimum may apply in your case, seek the advice of a criminal defense attorney in Augusta today. Contact my office to schedule a consultation so that we can go over possibilities.

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