SB149.html

Chapter 10 of Title 17 of the Official Code of Georgia Annotated, relating to sentencing and punishment in criminal cases, is amended by striking in its entirety Code Section 17-10-2, relating to conducting presentence hearings in felony cases and the effect of reversal for error in presentence hearings, and inserting in lieu thereof the following:
"17-10-2.
(a) 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, provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant´s trial shall be admissible. The judge shall also hear argument by the defendant or the defendant´s counsel and the district attorney, as provided by law, regarding the punishment to be imposed. The ~~district~~ prosecuting attorney shall open and the defendant or the defendant´s counsel shall conclude the argument. 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 17-10-30, ~~and~~ 17-10-30.1, and 17-10-30.2.
(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 or 17-10-30.2, 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."

Said chapter is further amended by striking in its entirety Code Section 17-10-30.1, relating to imprisonment for life without parole, findings of statutory aggravating circumstances required, and the duties of the judge and jury, and inserting in lieu thereof the following:
"17-10-30.1.
(a) Imprisonment for life without parole can be imposed in any murder case in which there is found by the court or jury one or more statutory aggravating circumstances as defined by Code Section 17-10-30 or 17-10-30.2.
(b) In all cases for which life without parole may be authorized, the judge shall consider, or shall include in the judge´s instructions to the jury for it to consider, any mitigating circumstances or any of the statutory aggravating circumstances specified by Code Section 17-10-30 or 17-10-30.2 which may be supported by the evidence.
(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a recommendation of life without parole, shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases the judge shall make such designation. Unless at least one of the statutory aggravating circumstances enumerated in Code Section 17-10-30 or 17-10-30.2 is so found, life without parole shall not be imposed."

Said chapter is further amended by adding following Code Section 17-10-30.1, relating to imprisonment for life without parole, findings of statutory aggravating circumstances required, and the duties of the judge and jury, a new Code Section 17-10-30.2 to read as follows:
"17-10-30.2.
(a) Imprisonment for life without parole may be imposed for the offense of aircraft hijacking or treason in any case.
(b) In all cases of other offenses for which imprisonment for life without parole may be authorized, the judge shall consider, or he or she shall include in his or her instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating circumstances which may be supported by the evidence:
(1) The offense of murder, rape, armed robbery, or kidnapping was committed by a person with a prior record of conviction for a capital felony;
(2) The offense of murder, rape, armed robbery, or kidnapping was committed while the offender was engaged in the commission of another capital felony or aggravated battery, or the offense of murder was committed while the offender was engaged in the commission of burglary or arson in the first degree;
(3) The offender, by his or her act of murder, armed robbery, or kidnapping, knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which would normally be hazardous to the lives of more than one person;
(4) The offender committed the offense of murder for himself, herself, or another, for the purpose of receiving money or any other thing of monetary value;
(5) The murder of a judicial officer, former judicial officer, prosecuting attorney or solicitor-general, or former prosecuting attorney, solicitor, or solicitor-general was committed during or because of the exercise of his or her official duties;
(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person;
(7) The offense of murder, rape, armed robbery, or kidnapping was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim;
(8) The offense of murder was committed against any peace officer, corrections employee, or firefighter while engaged in the performance of his or her official duties;
(9) The offense of murder was committed by a person in, or who has escaped from, the lawful custody of a peace officer or place of lawful confinement; or
(10) The murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody in a place of lawful confinement, of himself, herself, or another.
(c) The statutory instructions as determined by the trial judge to be warranted by the evidence shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict is a recommendation of imprisonment for life without parole, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases the judge shall make such designation. Except in cases of treason or aircraft hijacking, unless at least one of the statutory aggravating circumstances enumerated in subsection (b) of this Code section is so found, imprisonment for life without parole shall not be imposed."