07 HB 197/AP
House
Bill 197 (AS PASSED HOUSE AND SENATE)
By:
Representatives Fleming of the
117th,
Lindsey of the
54th,
and Hatfield of the
177th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Title 17 of the Official Code of Georgia Annotated, relating to criminal
procedure, so as to require parties to raise specific objections to jury charges
prior to the jury retiring to deliberate; to provide that failure to raise
objections shall preclude appellate review except under limited circumstances;
to repeal provisions allowing review of sentences of imprisonment for a period
exceeding 12 years by a three-judge panel; to provide for the disposition of
cases currently under review or in the pipeline for review; to provide duties
and responsibilities of the president of The Council of Superior Court Judges of
Georgia with respect to abolishing the three-judge panel; to amend Code Section
15-6-77 of the Official Code of Georgia Annotated, relating to fees in superior
court, so as to correct a cross-reference; to provide for related matters; to
provide for an effective date and applicability; to repeal conflicting laws; and
for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
17 of the Official Code of Georgia Annotated, relating to criminal procedure, is
amended by adding a new Code section to read as follows:
"17-8-58.
(a)
Any party who objects to any portion of the charge to the jury or the failure to
charge the jury shall inform the court of the specific objection and the grounds
for such objection before the jury retires to deliberate. Such objections shall
be done outside of the jury´s hearing and presence.
(b)
Failure to object in accordance with subsection (a) of this Code section shall
preclude appellate review of such portion of the jury charge, unless such
portion of the jury charge constitutes plain error which affects substantial
rights of the parties. Such plain error may be considered on appeal even if it
was not brought to the court´s attention as provided in subsection (a) of
this Code section."
SECTION
2.
Said
title is further amended by repealing and reserving Code Section 17-10-6,
relating to review of sentences of imprisonment for a period exceeding 12 years
by a three-judge panel, as follows:
"17-10-6.
(a)
In any case, except cases in which the death penalty is imposed or cases
involving a serious violent felony as defined in subsection (a) of Code Section
17-10-6.1, in which a sentence of 12 or more years, or several consecutive
sentences which total 12 or more years, has been fixed and imposed by a judge,
without a jury, the defendant shall have the right to have the sentence or
sentences reviewed by a panel of three superior court judges to determine
whether the sentence or sentences so imposed are excessively harsh.
Consideration shall be given in the review to the nature of the crime for which
the defendant has been convicted and to the defendant´s prior criminal
record. Any defendant seeking a review of such sentence or sentences shall make
application therefor within 30 days of the date on which the sentence was
imposed by a judge of the superior court or after the remittitur from the Court
of Appeals or Supreme Court affirming the conviction is made the judgment of the
sentencing court, whichever occurs last. The application shall be filed with the
clerk of the superior court in which the sentence was imposed. Upon the filing
of an application the clerk shall transmit the same to the three-judge panel
created under this Code section within ten days of the date on which the
application was filed. For such service, the clerk shall receive the fees
prescribed in Code Section 15-6-77 from the funds of the county, except where
the clerk is on a salary. It shall be the duty of the judge imposing the
sentence and any probation officer to transmit, within ten days of the filing of
an application for review of a sentence, a copy of any presentence or
postsentence report prepared by the probation officer, including the record of
the defendant, to the three-judge panel.
(b)
For the purpose of reviewing sentences, as provided by this Code section, there
is created a panel of three superior court judges, to be appointed by the
superior court judge then serving as president of The Council of Superior Court
Judges of Georgia. Judges so appointed shall serve for a term of three months
and until their successors are duly appointed and qualified. Judges so appointed
shall receive their actual expenses incurred in the performance of their duties
on the panel but shall receive no additional compensation. The expenses shall be
paid from funds appropriated to, or otherwise available to, the judicial branch
of state government. The panel shall be furnished offices, supplies, materials,
and secretarial assistance required for the performance of their duties by the
state. The panel shall meet at the state capital at such times as may be
required for the review of sentences, provided that all applications for review
of sentences shall be heard within three months from the date on which they are
filed. No judge appointed to a panel shall review a sentence which he has
imposed on the trial of the case in the superior court or participate in any
such review. If such a case is brought before the panel, the president of The
Council of Superior Court Judges of Georgia shall have the authority to appoint
an additional superior court judge as a member of the panel for the review of
the case.
(c)
The three-judge panel provided for by this Code section shall have the authority
to review sentences upon application of the defendants in such cases. In the
review of the sentences the defendant and the district attorney shall have the
right to present written argument relative to the sentence imposed and the
harshness or justification thereof. If, in the opinion of the panel, the
sentence imposed by the trial judge is too harsh or severe in light of all of
the circumstances surrounding the case and the defendant, and in light of the
defendant´s past history, the panel shall have the authority to issue an
order reducing the sentence originally imposed by the trial judge. The panel
shall not have the authority, however, to reduce any sentence to probation or to
suspend any sentence. The panel shall not be required to file written opinions
but shall file a copy of any order or remittitur reducing a sentence with the
superior court which originally imposed the sentence.
(d)
The reduction of a sentence or the refusal to reduce a sentence by the panel
shall not be reviewable. The provisions for review of sentences provided by this
Code section shall not be deemed to affect the right to appeal or any practices,
procedures, or time limitations relative to appeals to appellate courts. A
defendant shall not have the right to file more than one application for a
review of a sentence, and any order issued by the panel reducing or refusing to
reduce any sentence covered by an application shall be binding on the defendant
and the superior court which imposed the sentence.
(e)
This Code section shall not apply to cases in which the death penalty is
imposed.
(f)
This Code section shall not apply to sentences imposed in misdemeanor cases or
cases in which a life sentence is imposed for
murder
Reserved."
SECTION
3.
Said
title is further amended by adding a new Code section to read as
follows:
"17-10-6.3.
(a)
As used in this Code section, the term 'three-judge panel' means the three-judge
panel that was created and existed pursuant to the former provisions of Code
Section 17-10-6 as it existed on June 30, 2007, which reviewed certain sentences
to determine if a sentence was excessively harsh and what relief, if any, should
be given.
(b)
The right of a defendant to have a sentence reviewed by a three-judge panel
shall be terminated for sentences imposed by a trial or appellate court on or
after July 1, 2007. No new application for review of a sentence shall be
transmitted to the three-judge panel on or after July 1, 2007, except for cases
in which a sentence was imposed prior to July 1, 2007.
(c)
No new application for review of a sentence shall be accepted by the three-judge
panel unless such application has been received by the three-judge panel on or
before September 1, 2007. Any sentence that has an application for review
with the three-judge panel pending on September 1, 2007, shall have such review
completed by the three-judge panel by November 1, 2008.
(d)
It shall be the duty of the president of The Council of Superior Court Judges of
Georgia to cause all administrative measures which may be necessary to conclude
the business of the three-judge panel to be completed no later than January 1,
2009. Such administrative, clerical, or secretarial personnel as may be
assigned to provide support for the three-judge panel may continue to be
employed for the purpose of providing support to the president of The Council of
Superior Court Judges of Georgia until January 1, 2009.
(e)
No later than January 1, 2009, all records and documents relating to the
activities of the three-judge panels during the period July 1, 1974, through
November 1, 2008, shall be transmitted to the Department of Archives and History
for retention in accordance with Article 5 of Chapter 18 of Title 50, the
'Georgia Records Act.' All equipment, supplies, and materials which the
president of The Council of Superior Court Judges of Georgia determines are
excess or surplus shall be distributed by the president to the judges of the
superior courts for use in the performance of their official duties. Any fees
or expenses due to any clerk, superior court judge, or other person as a result
of the three-judge panel shall be paid out of such funds as are appropriated for
the operation of the superior courts during fiscal year 2009."
SECTION
4.
Code
Section 15-6-77 of the Official Code of Georgia Annotated, relating to superior
court fees, is amended by revising paragraph (5) of subsection (h) as
follows:
|
"(5)
Preparation
and transmission of documents to superior court sentence review panel in
accordance with Code Section 17-10-6, first copy, per page
|
1.50
|
|
Subsequent
copies, per page
|
.50
Reserved."
|
SECTION
5.
This
Act shall become effective on July 1, 2007, and shall apply to all trials which
occur on or after July 1, 2007.
SECTION
6.
All
laws and parts of laws in conflict with this Act are repealed.