Georgia’s Recidivist Statute: Your Past Comes Back to Haunt You

As I sat in court one day waiting my turn to sentence a case, the judge said something very profound to a young man prior to imposing his sentence. To paraphrase, he said that a person’s criminal history follows them around like a shadow. With the enactment of O.C.G.A. § 17-10-7, the Georgia Legislature made this illustration a reality.

This statute provides prosecutors with a tool to seek increased punishment for individuals with prior felony convictions. First, under O.C.G.A. § 17-10-7(a), if someone has one prior felony conviction, prosecutors have authority to file notice asking the judge to sentence that person to the maximum time allotted for their crime. Many clients have come to me fearing that having a prior felony requires them to serve jail time. However, this statute merely states that the judge is required to impose the maximum sentence. It does not require the judge to send that person to jail. The judge has the discretion to probate or suspend the entire sentence. For example, if the maximum sentence for a crime is ten years; the judge must give a person ten years. But, that ten years could be served on probation, at the judge’s discretion.

Another portion of the recidivist statute is what people commonly refer to as the “three strikes” law and it is found at O.C.G.A. § 17-10-7(c). It states that whatever time the judge sentences a person to serve in jail, that person must serve the entire term of confinement without early release. This subsection in no way requires the judge to put a defendant in jail. Therefore, three strikes doesn’t necessarily mean you’re out, but you are facing an uphill battle.

In advising my clients, I always explain that if a prosecutor files notice pursuant to O.C.G.A. § 17-10-7 (a) and (c), there is hope. These two sections combined merely mean that the judge must sentence a person to the maximum required for the crime charged and in the judge’s discretion, he or she may require that sentence to be served on probation. However, if the judge decides to sentence a person to time in jail, then that person must serve the full period of incarceration without the hope of parole or early release. In other words, even with prior felonies, a person has a chance of walking out of the courtroom instead of into a holding cell. But, when someone is to facing down in court that criminal history that haunts them, having an attorney by their side to help fight the battle is extremely important.