10 LC 28
5084ER
Senate
Bill 423
By:
Senators Smith of the 52nd, Hamrick of the 30th, Butterworth of the 50th,
Douglas of the 17th, Mullis of the 53rd and others
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
provide a short title; to amend Part 7 of Article 1 of Chapter 11 of Title 15 of
the Official Code of Georgia Annotated, relating to delinquent and unruly
children, so as to add additional offenses to the definition of "designated
felony act"; to amend Title 16 of the Official Code of Georgia Annotated,
relating to crimes and offenses, so as to increase the penalty for burglary when
more than $500.00 of damage is done to property in the commission of the
burglary of retail property or when a motor vehicle is used to damage property
in order to commit the burglary of retail property; to include within the
definition of criminal damage to property in the first degree violations
involving more than $500.00 of damage to property for the purpose of burglary of
retail property or involving a motor vehicle to cause damage to property in
excess of $500.00; to increase the penalties for certain thefts; to include
within the definition of the crime of contributing to the delinquency,
unruliness, or deprivation of a minor knowingly and willfully hiring,
soliciting, engaging, contracting with, conspiring with, encouraging, abetting,
or directing any minor to commit a burglary of retail property or retail
fencing; to provide for related matters; to provide an effective date and
applicability; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
This
Act shall be known and may be cited as the "Smash and Grab Act."
SECTION
2.
Part
7 of Article 1 of Chapter 11 of Title 15 of the Official Code of Georgia
Annotated, relating to delinquent and unruly children, is amended by revising
paragraph (2) of subsection (a) of Code Section 15-11-63, relating to designated
felony acts, as follows:
"(2)
'Designated felony act' means an act which:
(A)
Constitutes a second or subsequent offense under subsection (b) of Code Section
16-11-132 if committed by a child 13 to 17 years of age;
(B)
If done by an adult, would be one or more of the following crimes:
(i)
Kidnapping or arson in the first degree, if done by a child 13 or more years of
age;
(ii)
Aggravated assault, arson in the second degree, aggravated battery, robbery,
armed robbery not involving a firearm, or battery in violation of Code Section
16-5-23.1 if the victim is a teacher or other school personnel, if done by a
child 13 or more years of age;
(iii)
Attempted murder or attempted kidnapping, if done by a child 13 or more years of
age;
(iv)
The carrying or possession of a weapon in violation of subsection (b) of Code
Section 16-11-127.1;
(v)
Hijacking a motor vehicle, if done by a child 13 or more years of
age;
(vi)
Any violation of Code Section 16-7-82, 16-7-84, or 16-7-86 if done by a child 13
or more years of age;
(vii)
Any other act which, if done by an adult, would be a felony, if the child
committing the act has three times previously been adjudicated delinquent for
acts which, if done by an adult, would have been felonies;
(viii)
Any violation of Code Section 16-13-31, relating to trafficking in cocaine,
illegal drugs, marijuana, or methamphetamine;
(ix)
Any criminal violation of Code Section 16-14-4, relating to racketeering;
or
(x)
Any violation of Code Section 16-10-52, relating to escape, if the child
involved in the commission of such act has been previously adjudicated to have
committed a designated felony;
(C)
Constitutes a second or subsequent adjudication of delinquency based upon a
violation of Code Section 16-7-85 or 16-7-87;
(C.1)
Constitutes any violation of Code Section 16-15-4, relating to criminal street
gangs;
(D)
Constitutes an offense within the exclusive jurisdiction of the superior court
pursuant to subparagraph (b)(2)(A) of Code Section 15-11-28 which is transferred
by the superior court to the juvenile court for adjudication pursuant to
subparagraph (b)(2)(B) of Code Section 15-11-28 or which is transferred by the
district attorney to the juvenile court for adjudication pursuant to
subparagraph (b)(2)(C) of Code Section 15-11-28;
or
(E)
Constitutes a second or subsequent violation of Code Sections 16-8-2 through
16-8-9, relating to theft, if the property which was the subject of the theft
was a motor
vehicle;
(F)
Constitutes any violation of subsection (c) or (d) of Code Section 16-7-1,
relating to burglary;
(G)
Constitutes any violation of paragraph (3) or (4) of subsection (a) of Code
Section 16-7-22, relating to criminal damage in the first degree;
or
(H)
Constitutes any violation of Code Section 16-8-5.2, relating to retail property
fencing."
SECTION
3.
Title
16 of the Official Code of Georgia Annotated, relating to crimes and offenses,
is amended by revising Code Section 16-7-1, relating to burglary, by adding new
subsections to read as follows:
"(c)
Any burglary in which a motor vehicle is used to damage property for the purpose
of committing the burglary of retail property shall be punished by imprisonment
for not less than five nor more than 20 years.
(d)
Any burglary in which a person intentionally causes damage in excess of $500.00
to property for the purpose of committing the offense of burglary of retail
property shall be punished by imprisonment for not less than five nor more than
20 years."
SECTION
4.
Said
title is further amended by revising subsection (a) of Code Section 16-7-22,
relating to criminal damage to property in the first degree, as
follows:
"(a)
A person commits the offense of criminal damage to property in the first degree
when he or
she:
(1)
Knowingly and without authority interferes with any property in a manner so as
to endanger human life;
or
(2)
Knowingly and without authority and by force or violence interferes with the
operation of any system of public communication, public transportation,
sewerage, drainage, water supply, gas, power, or other public utility service or
with any constituent property
thereof;
(3)
Intentionally uses a motor vehicle to cause damage in excess of $500.00 to the
property of another without such other person's consent; or
(4)
Intentionally causes damage in excess of $500.00 to property for the purpose of
committing the offense of burglary of retail
property."
SECTION
5.
Said
title is further amended by revising Code Section 16-8-5.2, relating to retail
property fencing, as follows:
"16-8-5.2.
(a)
As used in this Code section, the term:
(1)
'Retail property' means any new article, product, commodity, item, or component
intended to be sold in retail commerce.
(2)
'Retail property fence' means a person or entity that buys, sells, transfers, or
possesses with the intent to sell or transfer retail property that such person
knows or should have known was stolen.
(3)
'Value' means the retail value of the item as stated or advertised by the
affected retail establishment, to include applicable taxes.
(b)
A person commits the offense of retail property fencing when such persons
receives, disposes of, or retains retail property which was unlawfully taken or
shoplifted over a period not to exceed 180 days with the intent to:
(1)
Transfer, sell, or distribute such retail property to a retail property fence;
or
(2)
Attempt or cause such retail property to be offered for sale, transfer, or
distribution for money or other things of value.
(c)
Whoever knowingly receives, possesses, conceals, stores, barters, sells, or
disposes of retail property with the intent to distribute any retail property
which is known or should be known to have been taken or stolen in violation of
this
subsection
Code
section with the intent to distribute the
proceeds, or to otherwise promote, manage, carry on, or facilitate an offense
described in this
subsection
Code
section, shall have committed the offense
of retail property fencing.
(d)(1)
It shall not be necessary in any prosecution under this Code section for the
state to prove that any intended profit was actually realized. The trier of
fact may infer that a particular scheme or course of conduct was undertaken for
profit from all of the attending circumstances.
(2)
It shall not be a defense to violating this Code section that the property was
obtained by means other than through the commission of a theft offense if the
property was explicitly represented to the accused as being obtained through the
commission of a theft.
(e)
Any property constituting proceeds derived from or realized through a violation
of this Code section shall be subject to forfeiture to the State of Georgia
except that no property of any owner shall be forfeited under this subsection,
to the extent of the interest of such owner, by reason of an act or omission
established by such owner to have been committed or omitted without knowledge or
consent of such owner. The procedure for forfeiture and disposition of
forfeited property under this subsection shall be as provided for under Code
Section 16-13-49.
(f)
Each violation of this Code section shall constitute a separate
offense."
SECTION
6.
Said
title is further amended by revising subsection (a) of Code Section 16-8-12,
relating to penalties for violation of Code Sections 16-8-2 through 16-8-9, as
follows:
"(a)
A person convicted of a violation of Code Sections 16-8-2 through 16-8-9 shall
be punished as for a misdemeanor except:
(1)
If the property which was the subject of the theft exceeded $500.00 in value, by
imprisonment for not less than one nor more than ten years or, in the discretion
of the trial judge, as for a misdemeanor;
(2)
If the property was any amount of anhydrous ammonia, as defined in Code Section
16-11-111, by imprisonment for not less than one nor more than ten years, a fine
not to exceed the amount provided by Code Section 17-10-8, or both;
(3)
If the property was taken by a fiduciary in breach of a fiduciary obligation or
by an officer or employee of a government or a financial institution in breach
of his or her duties as such officer or employee, by imprisonment for not less
than one nor more than 15 years, a fine not to exceed the amount provided by
Code Section 17-10-8, or both;
(4)
If the crime committed was a violation of Code Section 16-8-2 and if the
property which was the subject of the theft was a memorial to the dead or any
ornamentation, flower, tree, or shrub placed on, adjacent to, or within any
enclosure of a memorial to the dead, by imprisonment for not less than one nor
more than three years. Nothing in this paragraph shall be construed as to cause
action taken by a cemetery, cemetery owner, lessee, trustee, church, religious
or fraternal organization, corporation, civic organization, or club legitimately
attempting to clean, maintain, care for, upgrade, or beautify a grave,
gravesite, tomb, monument, gravestone, or other structure or thing placed or
designed for a memorial of the dead to be a criminal act;
(5)(A)
The provisions of paragraph (1) of this subsection notwithstanding, if the
property which was the subject of the theft was a motor vehicle or was a motor
vehicle part or component which exceeded $100.00 in value or if the theft or
unlawful activity was committed in violation of subsection (b) of Code Section
10-1-393.5 or in violation of subsection (b) of Code Section 10-1-393.6 or while
engaged in telemarketing conduct in violation of Chapter 5B of Title 10, by
imprisonment for not less than one nor more than ten years or, in the discretion
of the trial judge, as for a misdemeanor; provided, however, that any person who
is convicted of a second or subsequent offense under this paragraph shall be
punished by imprisonment for not less than one year nor more than 20
years.
(B)
Subsequent offenses committed under this paragraph, including those which may
have been committed after prior felony convictions unrelated to this paragraph,
shall be punished as provided in Code Section 17-10-7;
(6)(A)
As used in this paragraph, the term:
(i)
'Destructive device' means a destructive device as such term is defined by Code
Section 16-7-80.
(ii)
'Explosive' means an explosive as such term is defined by Code Section
16-7-80.
(iii)
'Firearm' means any rifle, shotgun, pistol, or similar device which propels a
projectile or projectiles through the energy of an explosive.
(B)
If the property which was the subject of the theft offense was a destructive
device, explosive, or firearm, by imprisonment for not less than one nor more
than ten years;
(7)
If the property which was the subject of the theft is a grave marker, monument,
or memorial to one or more deceased persons who served in the military service
of this state, the United States of America or any of the states thereof, or the
Confederate States of America or any of the states thereof, or a monument,
plaque, marker, or memorial which is dedicated to, honors, or recounts the
military service of any past or present military personnel of this state, the
United States of America or any of the states thereof, or the Confederate States
of America or any of the states thereof, and if such grave marker, monument,
memorial, plaque, or marker is privately owned or located on privately owned
land, by imprisonment for not less than one nor more than three years if the
value of the property which was the subject of the theft is $300.00 or less, and
by imprisonment for not less than three years and not more than five years if
the value of the property which was the subject of the theft is more than
$300.00;
(8)
If the property that was the subject of the theft was a vehicle engaged in
commercial transportation of cargo or any appurtenance thereto, including
without limitation any such trailer, semitrailer, container, or other associated
equipment, or the cargo being transported therein or thereon, by imprisonment
for not less than three years nor more than ten years, a fine not less than
$5,000.00 nor more than $50,000.00, and, if applicable, the revocation of the
defendant's commercial driver's license in accordance with Code Section
40-5-151, or any combination of such penalties. For purposes of this paragraph,
the term 'vehicle' includes without limitation any railcar;
or
(9)
Notwithstanding the provisions of paragraph (1) of this subsection, if the
property of the theft was ferrous metals or regulated metal property, as such
terms are defined in Code Section 10-1-350, and the sum of the aggregate amount
of such property, in its original and undamaged condition, plus any reasonable
costs which are or would be incurred in the repair or the attempt to recover any
property damaged in the theft or removal of such regulated metal property,
exceeds $500.00, by imprisonment for not less than one nor more than five years,
a fine of not more than $5,000.00, or
both;
(10)
If a violation of Code Section 16-8-5.2, by imprisonment for not less than one
year nor more than ten years; or
(11)
If the property that was the subject of the theft was a motor vehicle and the
motor vehicle was used to assist in the burglary of retail property, by
imprisonment for not less than one year nor more than 20
years."
SECTION
7.
Said
title is further amended by revising subsections (b) and (e) of Code Section
16-12-1, relating to contributing to the delinquency, unruliness, or deprivation
of a minor, as follows:
"(b)
A person commits the offense of contributing to the delinquency, unruliness, or
deprivation of a minor when such person:
(1)
Knowingly and willfully encourages, causes, abets, connives, or aids a minor in
committing a delinquent act as such is defined in Code Section 15-11-2, relating
to juvenile proceedings;
(2)
Knowingly and willfully encourages, causes, abets, connives, or aids a minor in
committing an act which would cause such minor to be found to be an unruly child
as such is defined in Code Section 15-11-2, relating to juvenile
proceedings;
(3)
Willfully commits an act or acts or willfully fails to act when such act or
omission would cause a minor to be found to be a deprived child as such is
defined in Code Section 15-11-2, relating to juvenile proceedings;
(4)
Knowingly and willfully hires, solicits, engages, contracts with, conspires
with, encourages, abets, or directs any minor to commit any felony which
encompasses force or violence as an element of the offense or delinquent act
which would constitute a felony which encompasses force or violence as an
element of the offense if committed by an adult;
or
(5)
Knowingly and willfully provides to a minor any weapon as defined in paragraph
(2) of subsection (a) of Code Section 16-11-127.1 or any weapon as defined in
Code Section 16-11-121 to commit any felony which encompasses force or violence
as an element of the offense or delinquent act which would constitute a felony
which encompasses force or violence as an element of the offense if committed by
an adult;
or
(6)
Knowingly and willfully hires, solicits, engages, contracts with, conspires
with, encourages, abets, or directs any minor to commit any burglary of retail
property, including retail property fencing, which would constitute a felony if
committed by an adult."
"(e)
A person convicted pursuant to paragraph
(4),
or
(5), or
(6) of subsection (b) or paragraph (1) of
subsection (d.1) of this Code section shall be guilty of a felony and punished
as follows:
(1)
Upon conviction of the first offense, the defendant shall be imprisoned for not
less than one nor more than five years; and
(2)
Upon conviction of the second or subsequent offense, the defendant shall be
imprisoned for not less than three years nor more than 20
years."
SECTION
8.
This
Act shall become effective on July 1, 2010, and shall apply to all violations
committed on and after such date.
SECTION
9.
All
laws and parts of laws in conflict with this Act are repealed.