May Charge as Felony or Misdemeanor

FELONIES, MISDEMEANORS, & QUASI-CRIMINAL DOMESTIC MATTERS

MAY CHARGE AS FELONY OR MISDEMEANOR

Georgia law allows for certain criminal offenses to be punishable as either felonies or misdemeanors. The charging determination depends largely on the individual circumstances and facts of the case. Some of the most commonly charged offenses in this category are described in further detail below.

Drug Charges

Key factors determining how drug-related offenses are charged include the type and classification of drug itself, quantity, intent, and prior history (or lack thereof) of similar charges. Laws prohibiting the possession, sale, or distribution of drugs, including marijuana, are codified as the Georgia Controlled Substances Act (“the Act”). The Act categorizes drugs into five groups, or “schedules.”

Schedule I drugs have no current medically accepted use, including MDMA, heroin, LSD, and others.  Schedule II drugs include substances that have a recognized medical use, but only under severe restrictions due to their high potential for abuse and dependence, such as oxycodone and other opiates. Schedules III, IV, and V encompass a broad range of drugs with lower potentials for abuse, and which may be possessed when lawfully prescribed, such as Xanax and Valium.

If you have been accused of a possession charge, it is important to note that Georgia law recognizes two distinct types of possession: actual and constructive. Actual possession occurs when an individual knowingly has direct physical control over a thing at a given time—for example, if drugs are found in your pocket during a police search. If, however, a person does not physically possess the drugs, but knowingly has both the power and intention to exercise authority or control over them, he or she is considered to have constructive possession.

Georgia’s Controlled Substances Act provides for several different drug crimes, types of offenses, and types of defenses—all of which depend upon the unique facts of a case. The existing laws are extremely restrictive and often carry with them substantial possible penalties. These include but are not limited to:

CHARGE

FELONY/MISDEMEANOR

PENALTY

Possession of one ounce or less of marijuana

Misdemeanor

Up to 12 months in jail and fine of up to $1000

Possession of greater than one ounce of marijuana

FELONY

Up to ten years in prison and fines

Trafficking of marijuana

  • 10 – 2,000 pounds
  • 2,000 – 10,000 pounds
  • 10,000+ pounds
 

FELONY

FELONY

FELONY

 

Mandatory minimum sentence of five years

Mandatory minimum sentence of seven years

Mandatory minimum sentence of 15 years

Possession of cocaine

FELONY

Trafficking of cocaine

  • 28 – 200 grams
  • 200 – 400 grams
  • 400+ grams
 

FELONY

FELONY

FELONY

 

Mandatory minimum sentence of ten years

Mandatory minimum sentence of 15 years

Mandatory minimum sentence of 25 years

Trafficking of morphine or opium (including heroin)

  • 4 – 14 grams
  • 14 – 28 grams
  • 28+ grams
 

FELONY

FELONY

FELONY

 

Mandatory minimum sentence of five years

Mandatory minimum sentence of ten years

Mandatory minimum sentence of 25 years

Possession of Schedule I or II Substance (1st offense)

FELONY

Two to 15 years in prison and fines

Possession of Schedule I or II Substance (2nd or more offense)

FELONY

Five to 30 years in prison and fines

Possession of Schedule III, IV, or V Substance (1st offense)

FELONY

One to five years in prison and fines

Possession of Schedule III, IV, or V Substance (2nd or more offense)

FELONY

One to ten years in prison and fines

Theft & Fraud

Having a theft or fraud-related charge can have a devastating and life-long impact on a person’s future. Not only will a conviction result in possible increased sentencing and punishments, it will appear on a permanent criminal record, and may restrict an individual from many job opportunities. In Georgia, theft may be carried out in several different ways, and with a broad spectrum of possible punishments. 

        • Theft by Taking. A person commits theft by taking when he or she illegally takes another’s property and intends to deprive that person of said property.
        • Theft by Deception. Theft may also be carried out through deception where a person deceitfully acquires the property of another, and intends to deprive that person of said property.
        • Theft of Services. Georgia law additionally recognizes that services may be stolen where an individual attains services and has the intention of evading payment for the services rendered.
        • Theft by Conversion. Theft may also occur by conversion. This happens when a person lawfully obtains funds or property belonging to another under an agreement or legal obligation to apply the funds in a certain way, or to carry out some action with the property, but instead uses the property for himself.

This is not a complete list of theft charges under Georgia law; these are mere examples of common theft-related charges. A conviction of any of the above-mentioned theft crimes is a misdemeanor, except in cases where the value of the property exceeds $500. If the value of the property is greater than $500, a conviction will generally result in a prison sentence between one to ten years, though the trial judge may exercise discretion and convict the defendant of a misdemeanor or an escalated felony charge.

There are several exceptions and special circumstances that must be considered. For example, conviction for theft by deception against a person who is 65 years or older and valued at over $500 will generally result in a felony carrying a prison sentence between five and ten years. Additionally, property stolen by an individual in a fiduciary capacity or as an employee of a financial or government institution, in violation of his or her obligations, may result in a felony sentence of one to 15 years.

Georgia also recognizes several variations of fraud-related offenses. There are several different forms of fraud charges, including but not limited to: bank and check fraud; identity theft and credit card fraud; and deposit account fraud. Fraud offenses are generally comprised of several common elements:

  1. a false representation must be made;
  2. the person making the representation must know that it is false, or have a reckless disregard for its truth;
  3. the representation must be made to induce another party into doing something; and
  4. the other party must rely on this false representation and incur actual damages.

Given the complexities and nuances of defending theft or fraud charges, as well as the significant potential impacts, it is critical to obtain guidance from an experienced attorney if you are facing any of these accusations in Georgia. It is also important to understand that theft and fraud charges may be easily combined to increase potential consequences. Contact my office today for a free consultation to discuss your possible options and charge implications.

Assault & Battery

Assault and battery are two of the most common charges in cases involving crimes against people. Both charges have ‘simple’ and ‘aggravated’ versions, with the simple charges classified as misdemeanors, and the aggravated charges classified as felonies; battery has a third charging option that is based on frequency. Because of the five different possible charges and/or combinations of these charges, it is important to understand what you are actually charged with as these offenses do not always coincide with each other.

The general descriptions and penalties for each are summarized in the below chart—please note that this is not exhaustive, and you should contact an experienced attorney for a more thorough, comprehensive, and individualized assessment. 

CHARGE

CATEGORY

GENERAL DESCRIPTION

POTENTIAL SENTENCES

Simple Assault

Misdemeanor

Occurs when a person either attempts to commit a violent injury to the person of another; or commits an act which places another in reasonable apprehension of immediately receiving a violent injury

No more than 12 months in jail and fines

Aggravated Assault

FELONY

An assault that is committed with the intent to rob, rape, or murder, with a deadly weapon or object that can be used in a manner that results in serious bodily injury or strangulation, or by discharging a firearm from a vehicle

One to 20 years in prison

Simple Battery

Misdemeanor

Occurs when a person either intentionally makes insulting or provoking physical contact with another, or intentionally causes physical harm to another.

No more than 12 months in jail and fines

Battery

Misdemeanor OR Felony

Occurs when a person intentionally causes substantial physical harm or visible bodily harm to another.

Misdemeanor—unless it’s the second conviction against the same victim (ten days to 12 months in jail); or a third conviction against the same victim (one to five years in prison)

Aggravated Battery

FELONY

Occurs when a person maliciously causes bodily harm to another, potentially disfiguring them or rendering a part of their body unusable

One to 20 years in prison

It is critically important to note that aside from this general breakdown, there are a variety of different circumstances that can convert a “simple” charge to a “high and aggravated” charge, which carries with it increased sentences and fines. Additional extenuating circumstances, ranging from age to incident environment, will also have a substantial impact in the outcome and sentencing of your case.

Considering these complexities, it is imperative to find a knowledgeable attorney who is well-versed in each of these situations and familiar with any relevant unique factors or circumstances in each case. Don’t take chances or settle for anything less than the best. Contact my office today for a free consultation and case evaluation.