07 SB145/FA/2
Senate
Bill 145
By:
Senators Smith of the 52nd, Johnson of the 1st, Williams of the 19th, Seabaugh
of the 28th, Moody of the 56th and others
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Code Section 16-5-1 and Chapter 10 of Title 17 of the Official Code of
Georgia Annotated, relating to murder and felony murder and sentencing and
punishment, respectively, so as to provide for the imposition of life without
parole of persons convicted of murder independently of a death penalty
prosecution; to provide that the sentence of life without parole may be imposed
without the necessity of the trier of fact making a recommendation of such
sentence or finding statutory aggravating circumstances; to change certain
provisions relating to punishment for serious violent offenders; to repeal
certain provisions relating to imprisonment for life without parole and finding
statutory aggravating circumstance; to provide for certain information to be
reported to the court under certain circumstances; to repeal provisions relating
to duties of the judge and certain jury instructions; to repeal provisions
relating to sentencing of person subject to death penalty or life without parole
upon a plea of guilty and the duties of the judge; to provide for related
matters; to provide an effective date; to provide for applicability; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Title
16 of the Official Code of Georgia Annotated, relating to crimes and offenses,
is amended by revising subsection (d) of Code Section 16-5-1, relating to
murder, as follows:
"(d)
A person convicted of the offense of murder shall be punished by
death, by
imprisonment for life without parole, or
by imprisonment for life."
SECTION
2.
Chapter
10 of Title 17 of the Official Code of Georgia Annotated, relating to sentencing
and punishment in criminal cases, is amended by revising Code Section 17-10-2,
relating to conducting presentence hearings in felony cases and the effect of
reversal for error in presentence hearings, as follows:
"17-10-2.
(a)(1)
Except in cases in which the death penalty
or life
without parole may be imposed, upon the
return of a verdict of 'guilty' by the jury in any felony case, the judge shall
dismiss the jury and shall conduct a presentence hearing at which the only issue
shall be the determination of punishment to be imposed. In the hearing the
judge shall hear additional evidence in extenuation, mitigation, and aggravation
of punishment, including the record of any prior criminal convictions and pleas
of guilty or nolo contendere of the defendant, or the absence of any prior
conviction and pleas.
(2)
The judge shall also hear argument by the defendant or the defendant´s
counsel and the prosecuting attorney, as provided by law, regarding the
punishment to be imposed. Except in cases where the death penalty may be
imposed, the prosecuting attorney shall open and conclude the argument. In
cases where the death penalty may be imposed, the prosecuting attorney shall
open and the defendant or the defendant´s counsel shall conclude the
argument.
(3)
Upon the conclusion of the evidence and arguments, the judge shall impose the
sentence or shall recess the trial for the purpose of taking the sentence to be
imposed under advisement. The judge shall fix a sentence within the limits
prescribed by law.
(b)
In cases in which the death penalty
or life
without parole may be imposed, the judge,
when sitting without a jury, in addition to the procedure set forth in
subsection (a) of this Code section, shall follow the procedures provided for in
Code
Sections
Section
17-10-30
and
17-10-30.1.
(c)
In all cases tried by a jury in which the death penalty
or life
without parole may be imposed, upon a
return of a verdict of 'guilty' by the jury, the court shall resume the trial
and conduct a presentence hearing before the jury. The hearing shall be
conducted in the same manner as presentence hearings conducted before the judge
as provided for in subsection (a) of this Code section. Upon the conclusion of
the evidence and arguments, the judge shall give the jury appropriate
instructions, and the jury shall retire to determine whether any mitigating or
aggravating circumstances, as defined in Code Section 17-10-30, exist and
whether to recommend mercy for the defendant. Upon the findings of the jury,
the judge shall fix a sentence within the limits prescribed by law.
(d)
If the trial court is reversed on appeal because of error only in the
presentence hearing, the new trial which may be ordered shall apply only to the
issue of punishment."
SECTION
3.
Said
chapter is further amended by revising subsection (c) of Code Section 17-10-6.1,
relating to punishment for serious violent offenders, as follows:
"(c)(1)
Except as otherwise provided in subsection (c) of Code Section 42-9-39, for a
first conviction of a serious violent felony in which the defendant has been
sentenced to life imprisonment, that person shall not be eligible for any form
of parole or early release administered by the State Board of Pardons and
Paroles until that person has served a minimum of 30 years in prison. The
minimum term of imprisonment shall not be reduced by any earned time, early
release, work release, leave, or other sentence-reducing measures under programs
administered by the Department of Corrections.
(2)
For a first conviction of a serious violent felony in which the defendant has
been sentenced to death but the sentence of death has been commuted to life
imprisonment, that person shall not be eligible for any form of parole or early
release administered by the State Board of Pardons and Paroles until that person
has served a minimum of 30 years in prison. The minimum term of imprisonment
shall not be reduced by any earned time, early release, work release, leave, or
other sentence-reducing measures under programs administered by the Department
of Corrections.
(3)
For a first
conviction of a serious violent felony in which the defendant has been sentenced
to imprisonment for life without parole, that person shall not be eligible for
any form of parole or early release administered by the State Board of Pardons
and Paroles or for any earned time, early release, work release, leave, or other
sentence-reducing measures under programs administered by the Department of
Corrections.
(4)
Except as otherwise provided in this subsection,
any
Any
sentence imposed for the first conviction of any serious violent felony
other than
a sentence of life imprisonment or life without parole or
death shall be served in its entirety as
imposed by the sentencing court and shall not be reduced by any form of parole
or early release administered by the State Board of Pardons and Paroles or by
any earned time, early release, work release, leave, or other sentence-reducing
measures under programs administered by the Department of Corrections, the
effect of which would be to reduce the period of incarceration ordered by the
sentencing court."
SECTION
4.
Said
chapter is further amended by repealing Code Section 17-10-30.1, relating to
imprisonment for life without parole and finding of statutory aggravating
circumstance required.
SECTION
5.
Said
chapter is further amended by revising Code Section 17-10-31, relating to the
requirement of a jury finding aggravating circumstance and recommendation of
death penalty prior to imposition, as follows:
"17-10-31.
(a)
Where, upon a trial by jury, a person is convicted of an offense which may be
punishable by death, a sentence of death shall not be imposed unless the jury
verdict includes a finding of at least one statutory aggravating circumstance
and a recommendation that such sentence be imposed. Where a statutory
aggravating circumstance is found and a recommendation of death is made, the
court shall sentence the defendant to death. Where a sentence of death is not
recommended by the jury, the court shall sentence the defendant to imprisonment
as provided by law. Unless the jury trying the case makes a finding of at least
one statutory aggravating circumstance and recommends the death sentence in its
verdict, the court shall not sentence the defendant to death, provided that no
such finding of statutory aggravating circumstance shall be necessary in
offenses of treason or aircraft hijacking. This Code section shall not affect a
sentence when the case is tried without a jury or when the judge accepts a plea
of guilty.
(b)
Where a jury impaneled to determine sentence, in a case in which the state
sought the death penalty, is unable to reach a unanimous verdict as to sentence,
the court shall have the jury foreperson report the jury´s verdict as to
aggravating circumstances, if any, and the number of jurors who cast their vote
for a sentence of death on the last ballot and the court shall sentence the
defendant to imprisonment as provided by
law."
SECTION
6.
Said
chapter is further amended by repealing Code Section 17-10-31.1, relating to the
requirement of a jury finding of aggravating circumstance and recommendation of
sentence of death or life without parole, duties of the judge, and jury
instruction on meaning of "life without parole" and "life
imprisonment."
SECTION
7.
Said
chapter is further amended by repealing Code Section 17-10-32.1, relating to
sentencing of person subject to death penalty or life without parole upon a plea
of guilty and the duties of the judge.
SECTION
8.
Except
as provided in this section, the provisions of this Act shall apply only to
those offenses committed after July 1, 2007. With express written consent of
the state, a defendant whose offense was committed prior to July 1, 2007, may
elect in writing to be sentenced under the provisions of this Act, provided
that: (1) jeopardy for the offense charged has not attached or (2) the defendant
has been sentenced to death but the conviction or sentence has been reversed on
appeal and the state is not barred from seeking prosecution after the
remand.
SECTION
9.
Except
as provided in Section 8 of this Act, the amendment or repeal of a Code section
by this Act shall not affect any sentence imposed by any court of this state
prior to July 1, 2007.
SECTION
10.
A
person may be sentenced to life without parole without the prosecutor seeking
the death penalty under the laws of this state.
SECTION
11.
(a)
This Act shall become effective on July 1, 2007, and shall apply to all crimes
committed on and after such date and except as provided in Section 8 of this
Act, the law set forth in Section 2, and Sections 3 through 7 of this Act as it
existed on June 30, 2007, shall apply to all offenses committed on and before
June 30, 2007.
(b) 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.
(b) 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.
SECTION
12.
All
laws and parts of laws in conflict with this Act are repealed.