Summary of Substitute to House Bill 349 This bill amends ... - Ciclt.net

Summary of Substitute to House Bill 349This bill amends Titles 5 (Appeal and Error), 16 (Crimes and Offenses), Title 17 (CriminalProcedure), Title 24 (Evidence), Title 40 (Motor Vehicles and Traffic) and Title 42 (PenalInstitutions). H.B. 349 grants prosecutors the right to a direct appeal when a court rules evidenceexcluded during pre-trial proceedings. The bill creates the Georgia Council on Criminal JusticeReform and provides its duties and powers. The bill provides for judicial deviation from themandatory minimum sentences of certain drug trafficking offenses, by up to 50 percent, whencertain judicial findings are made. It amends the Child Hearsay Statute to allow admission ofout-of-court statements by children under age 16 regarding sexual contact or physical abusewhere enumerated requirements are met. The bill provides for judges in drug and mental healthcourts to order the suspension of a defendant’s driver’s license or the restoration of a license thatwould otherwise be suspended under O.C.G.A. § 40-5-75.Specific statutory revisions:O.C.G.A. § 5-7-1 (Orders, decisions, or judgments appealable; defendant’s right to crossappeal.): Adds new subparagraph to allow, in criminal and delinquency cases, the State toappeal a ruling excluding evidence in the case of pre-trial motions filed at least 30 days prior totrial, where the notice of appeal is filed within 48 hours of the ruling and the prosecuting attorneycertifies to the trial court that the appeal is not to delay trial and the evidence is a substantialproof of a material fact.Amends previous subparagraph (7) by allowing the State to appeal an order, decision orjudgment of a superior court that transfers a case to the juvenile court pursuant to § 17-7-50.1 (b)(Time for presentment of child's case to a grand jury).Adds new subsection (c) that grants the State the right to cross appeal without a certificate ofimmediate review when a defendant appeals pursuant to O.C.G.A. § 5-6-34 or 17-10-35.1.O.C.G.A. § 5-7-6: New Code section that instructs Chapter 7 of Title 5 to be liberally construed.O.C.G.A. § 16-13-31 and -13-31.1: Removes the “knowingly” scienter requirement fromcocaine, illegal drugs, marijuana, meth and ecstacy trafficking offenses.Adds § 16-13-31(g)(3) and -13-31.1(b): Allows judge to depart from mandatory minimumtrafficking sentences, by up to 50 percent, if judge concludes all five of the following: thedefendant was not a leader of the criminal conduct; the defendant did not use a weapon duringthe crime; the criminal conduct did not result in a death or serious bodily injury to an innocentperson; the defendant has no prior felony convictions; and the interests of justice will not beserved by the imposition of the prescribed mandatory minimum sentence.O.C.G.A. § 17-10-1: Changes “administrative” probation to “unsupervised” probation. Intendedto more clearly delineate role under the interstate compact and eliminate some obligations ofCorrections.

O.C.G.A. § 17-10-6.1 and -10-7 (Punishment for serious violent offenders/Punishment for repeatoffenders): Grants judge discretion to depart from the mandatory minimum sentences for seriousviolent crimes when the prosecuting attorney and defendant have agreed to a lesser sentence.Removes current prohibition of reductions to minimum sentences by the State Board of Pardonsand Paroles for serious violent felonies.O.C.G.A. § 17-10-6.2 (Punishment for sexual offenders): In subsection (c), allows the court todeviate from the mandatory minimum sentences set forth in subsection (b), when the prosecutingattorney and defendant agree to a sentence below the mandatory minimum.O.C.G.A. § 17-19-1 to -19-5: Creates a new chapter 19 for the Georgia Council on CriminalJustice Reform. Similar to 2011’s HB 265, which created a 13-member Special Council ofCriminal Justice Reform.17-19-1: Creates the Council and lists its purposes and responsibilities.17-19-2: Dictates the composition of the 15-member council appointed by the governor, whoalso designated the chairperson. The council must include an appellate judge or justice, asuperior court judge, a juvenile court judge, a district attorney, a criminal defense attorney, asheriff, the governor’s executive counsel or his designee, and the director of the Governor’sOffice for Children and Families.In contrast, 2011’s HB 1265 created a 13-member council, to which the governor had fourappointees, and the Speaker, lieutenant governor and Chief Justice each had three appointees.Attaches the council to the Governor’s Office for Children and Families for administrativepurposes and staff support.17-19-3: Requires the council to meet at least twice a year. Requires a majority of the councilmembers for a quorum. Provides for the council’s legislative members to receive their dailyexpense allowance, and for citizen members to receive a daily expense allowance as provided inO.C.G.A. § 45-7-21.17-19-4: Sets forth powers and duties, including: to review and issue a report on the conditions,needs, issues and problems related to criminal justice; to evaluate the experiences of other stateswith legislation related to their juvenile and superior court systems; identify law state laws thatshould be modified to conform to federal legislation; and to receive agency data and records.17-19-5: Sunsets the chapter June 30, 2018.O.C.G.A. § 24-8-820 (Testimony as to child's description of sexual contact or physical abuse):Amends Child Hearsay Statute, in response to Bunn v. State. Makes out-of-court statementsmade by children under age 16 describing sexual or physical child abuse admissible through thetestimony of the persons to whom the statements were made. The prosecution must provide pretrialnotice to the accused and the child must be available for cross-examination.

O.C.G.A. § 40-5-75 (Suspension of licenses by operation of law) and -5-76: New code section40-5-76 allows judges in drug and mental health courts to order the Department of DriverServices to restore a defendant’s driver’s license that would otherwise be suspended under 40-5-75. Also allows judges to suspend licenses or issue a limited driving permit. The changes areintended to enable judges to reward or sanction a defendant’s behavior, and allow defendants todrive to drug treatment, court appearances, employment, etc.O.C.G.A. § 42-8-35: Adds a new paragraph to subsection (a) that requires Corrections to assessand collect fees from probationers for their drug screening, at levels set by the Department.Section 16 makes the bill applicable to offenses that occur on or after July 1, 2013.