Bill Text: GA HB392 | 2009-2010 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Plea discussions; guilty or nolo contendere; certain requirements; provisions

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2010-03-11 - House Withdrawn, Recommitted [HB392 Detail]

Download: Georgia-2009-HB392-Introduced.html

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09 LC 38 0779

House Bill 392

By: Representative Levitas of the 82nd

A BILL TO BE ENTITLED
AN ACT

To amend Article 5 of Chapter 7 of Title 17 of the Official Code of Georgia Annotated, relating to arraignment and pleas generally, so as to provide for certain requirements prior to a defendant entering a plea of guilty or nolo contendere; to provide for a prosecuting attorney authority to enter into plea discussions; to provide for guidelines for such plea discussions; to provide for restrictions for the judge regarding plea discussions; to provide for certain procedures for a judge regarding tentative plea agreements; to provide for guidelines for a judge regarding such judge granting sentence leniency and reduction; to provide for certain procedures for a judge regarding the acceptance of a plea of guilty or nolo contendere; to provide for a verbatim record of certain proceedings regarding pleas of guilty or nolo contendere; to provide for the right to withdraw a plea of guilty or nolo contendere; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Article 5 of Chapter 7 of Title 17 of the Official Code of Georgia Annotated, relating to arraignment and pleas generally, is amended by designating its current provisions as Part 1 and by adding a new part to read as follows:

"Part 2

17-7-97.1.

(a) Pleas of guilty and pleas of nolo contendere shall be entered in a manner consistent with this part.

(b) If a person enters a plea of guilty or nolo contendere, such plea shall be received only from the defendant personally in open court; provided, however, that if the defendant is a corporation, the counsel or a designated corporate officer for such corporation shall be authorized to enter the plea.

(c) A plea of guilty or a plea of nolo contendere shall be accepted by the judge only after due consideration of the views of the parties and the interests of the public in the effective administration of justice.

17-7-97.2.

(a) A defendant shall not be called upon to enter a plea before having an opportunity to retain counsel or, if such defendant is eligible for appointment of counsel, until counsel has been appointed or right to counsel waived. A defendant with counsel shall not be required to enter a plea if such defendant's counsel makes a reasonable request for additional time to represent the defendant's interest, or if the defendant has not had a reasonable time to consult with counsel.

(b) A defendant without counsel shall not be called upon to enter a plea to any offense without having had a reasonable time to consider his or her decision. When a defendant without counsel tenders a plea of guilty or nolo contendere to an offense, the court shall not accept such plea unless it is reaffirmed by the defendant after a reasonable time for deliberation, following the guidelines established pursuant to Code Section 17-7-97.8.

17-7-97.3.

(a) In cases in which it appears that the interests of the public in the effective administration of criminal justice pursuant to the guidelines established in Code Section 17-7-97.6 would thereby be served, the prosecuting attorney shall be authorized to engage in plea discussions for the purpose of reaching a plea agreement. The prosecuting attorney shall engage in plea discussions or reach a plea agreement with the defendant only through defense counsel, except when the defendant is not eligible for or does not desire appointment of counsel and has not retained counsel.

(b) The prosecuting attorney, in reaching a plea agreement, shall be authorized to agree to one or more of the following, as dictated by the circumstances of the individual case:

(1) To make or not to oppose favorable recommendations as to the sentence which should be imposed if the defendant enters a plea of guilty or nolo contendere;

(2) To seek or not to oppose dismissal of the offense charged, provided that the defendant enters a plea of guilty or nolo contendere to another offense reasonably related to the defendant's conduct; or

(3) To seek or not to oppose dismissal of other charges or potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere.

17-7-97.4.

(a) Unless otherwise ordered by a court of jurisdiction, defense counsel shall conclude a plea agreement only with the consent of the defendant and shall ensure that the decision to enter or not enter a plea of guilty or nolo contendere is ultimately made by the defendant.

(b) To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, shall advise the defendant of the alternatives available and of considerations deemed important by the counsel in reaching a decision.

17-7-97.5.

(a) A judge shall not participate in plea discussions.

(b) If a tentative plea agreement has been reached, upon request of the parties, the judge shall be authorized to permit the parties to disclose the tentative agreement and the reasons therefor in advance of the time for the tendering of the plea. The judge shall then indicate to the prosecuting attorney and defense counsel whether the judge will likely concur in the proposed disposition if the information developed in the plea hearing or presented in the presentence report is consistent with the representations made by the parties. If the judge concurs but the final disposition differs from that contemplated by the plea agreement, then the judge shall state for the record what information in the presentence report or hearing contributed to the decision not to sentence in accordance with the plea agreement.

(c) When a plea of guilty or nolo contendere is tendered or received as a result of a plea agreement, the judge shall give the agreement due consideration, but notwithstanding its existence, shall reach an independent decision regarding whether to grant charge or sentence leniency under the guidelines set forth pursuant to Code Section 17-7-97.6.

17-7-97.6.

(a) When imposing a sentence, it is proper for the judge to grant sentence leniency and reduction of charges to defendants who enter pleas of guilty or nolo contendere when the interests of the public in the effective administration of criminal justice are thereby served. The judge shall consider:

(1) Whether the defendant by entering a plea has aided in ensuring the prompt and certain application of correctional measures;

(2) Whether the defendant has acknowledged guilt and shown a willingness to assume responsibility for conduct;

(3) Whether leniency will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent, or other purposes of correctional treatment or will prevent undue harm to the defendant from the form of conviction;

(4) Whether the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;

(5) Whether the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct; and

(6) Whether the defendant by entering a plea has aided in avoiding delay, including, without limitation, delay due to crowded court dockets, in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders.

(b) The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent, or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove the defendants guilt at trial rather than to enter a plea of guilty or nolo contendere.

(c) A judge imposing a sentence upon a plea of guilty or a plea of nolo contendere shall impose such sentence in a manner consistent with Code Section 17-10-1.

17-7-97.7.

The judge shall not accept a plea of guilty or nolo contendere without first determining on the record that the plea is voluntary. By inquiry of the prosecuting attorney and defense counsel, or the prosecuting attorney and the defendant, if the defendant has properly declined to be represented by counsel, the judge shall determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and, if it is, what agreement has been reached. If the prosecuting attorney has agreed to seek charge or sentence leniency which must be approved by the judge, the judge shall advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the judge. The judge shall then address the defendant personally to determine whether any other promises or any force or threats were used to obtain the plea.

17-7-97.8.

(a) A judge shall not accept a plea of guilty or nolo contendere from a defendant without first:

(1) Determining on the record that the defendant understands the nature of the charges against him or her;

(2) Informing the defendant on the record that by entering a plea of guilty or nolo contendere, he or she would waive:

(A) The right to trial by jury;

(B) The presumption of innocence;

(C) The right to confront witnesses against the defendant;

(D) The right to subpoena witnesses;

(E) The right to testify and to offer other evidence;

(F) The right to assistance of counsel during trial; and

(G) The right not to incriminate himself or herself and that by entering a plea of not guilty or remaining silent and not entering a plea, the defendant would obtain a jury trial; and

(3) Informing the defendant on the record:

(A) The terms of any negotiated plea;

(B) The maximum possible sentence on the charge, including that possible from consecutive sentences and enhanced sentences where provided by law; and

(C) If applicable, the mandatory minimum sentence.

(b) The information contained in subsection (a) of this Code section may be developed by questions from the judge, the district attorney, or the defense attorney, or a combination of any of these, and, in the case of a defendant who has properly declined to be represented by counsel, by the defendant.

17-7-97.9.

(a) Notwithstanding the acceptance of a plea of guilty, the judgment shall not be entered upon such plea without an inquiry on the record as may satisfy the judge that there is a factual basis for such plea. If the court intends to reject the plea agreement, the court shall, on the record, inform the defendant personally that:

(1) The court is not bound by any plea agreement;

(2) The court intends to reject the plea agreement presently before it;

(3) The disposition of the present case may be less favorable to the defendant than that contemplated by the plea agreement; and

(4) The defendant may withdraw his or her guilty plea as a matter of right.

(b) The court shall, on the record, also inform the prosecuting attorney that the court intends to reject the plea agreement presently before it and that the state may withdraw its plea agreement. After informing the state of its intention to reject the plea agreement, the court shall provide the prosecuting attorney a reasonable opportunity to withdraw the plea agreement. If neither the plea nor the plea agreement is then withdrawn by the defendant or the state, respectively, sentence may be pronounced.

17-7-97.10.

A verbatim record of the proceedings at which a defendant enters a plea of guilty or nolo contendere shall be made and preserved. The record shall include:

(1) The inquiry into the voluntariness of the plea;

(2) The advice to the defendant;

(3) The inquiry into the accuracy of the plea; and

(4) If applicable, the notice to the defendant and to the prosecuting attorney that the court intends to reject the plea agreement and the defendant's and the state's rights to withdraw the plea or the plea agreement before sentence is pronounced.

17-7-97.11.

(a) After sentence is pronounced, the judge shall allow the defendant to withdraw his or her plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant shall not be allowed to withdraw a plea of guilty or nolo contendere as a matter of right once sentence has been pronounced by the judge."

SECTION 2.

All laws and parts of laws in conflict with this Act are repealed.