Understanding the 5th Amendment
The Fifth Amendment protects people from having to testify against themselves. Therefore, the prosecution must use evidence and witnesses instead of the testimony of the accused person to convict them. The point of the 5th Amendment is to protect people from saying something incriminating. However, people who invoke this right and refuse to say anything are often thought of as guilty or have something to hide. It seems that either way you are doomed because if you talk, you could mistakenly say something that could be used against you but if you do not, people assume you are guilty. If you do decide to talk to the police, you could make mistakes when explaining where you were at the time of the crime or you could be tricked into saying the wrong thing, and those statements could lead to you being convicted of a serious crime.
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- Published in Criminal, Criminal Defense, Moral Terpitude
Why a Person Should Never Speak to The Police
As stated eloquently by Supreme Court Justice Robert Jackson, “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.”
A criminal defense attorney would be a fool to ever let his client speak to the police. One of the foremost experts, Professor James Duane, lectured upon reasons why people should never talk to the police. Our office is very thankful that he has allowed us to put these ideas on our website and we have included his 45-minute video presentation that explains why a person should never speak to the police under any circumstances whatsoever along with his lecture on: “You Have the Right to Remain Innocent.” We recommend that you purchase his book “You have the Right to Remain Innocent” as well. We also tell anyone who calls our office to “never talk to the police.”
In our law practice, we comprised some examples of when our clients spoke to the police before retaining our office. It is of our opinion that of all the things that we have placed on our website, if a reader only looks at this one section of our website, then that would be more important than anything else we have posted. NEVER SPEAK TO THE POLICE.
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- Published in Criminal, Criminal Defense, Moral Terpitude
What Does Not Constitute an Acceptable Defense of Armed Robbery in Georgia
I didn’t have a real weapon, just a toy: Even if you used a toy gun, you could be guilty of armed robbery. The Court looks at whether it was a believable replica and if it was, you will still be charged with armed robbery.
I had consent at the beginning to have the property: Recent case law has found that even if you had permission to have custody of the property at the beginning, you could still be guilty of robbery if you forcefully dissuaded the owner from making you return the object. An example of this is if you had permission to borrow a necklace and then when they asked you to return it, you forced them through violence to let you keep it. Even though you had consent at the beginning, it is still robbery because you used force to retain the property.
The victim never saw a weapon: Even if the victim never sees a weapon, a defendant can still be guilty of armed robbery. Since the purpose of using any weapon or device is to create a reasonable apprehension that an offensive weapon is being used, it is immaterial whether the fear is created by seeing or by any other sense, provided the apprehension is reasonable under the circumstances. An example of this is when a defendant told the victim “do as I say or I’ll blow your head off.” Although the victim never saw the weapon, the statement was enough that the robbery had been accomplished by use of an offensive weapon.
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- Published in Aggravated Felony, Criminal, Criminal Defense, Moral Terpitude, Theft
Is a Threat of Harm Alone Sufficient to be Found Guilty of Armed Robbery?
In 2006, the Court found a defendant guilty of armed robbery where he threatened the victim with a knife and took money from him. The defendant threatened the man with a knife and then threw the knife on the bed. While the defendant admitted holding a knife in his hand, he argued that since he never harmed the victim, he was not guilty of robbery. The Court found that the defendant’s threats and demands were sufficient to establish the element of intimidation and that he did not have to actually harm the victim to be guilty. By testifying to the threats and holding a knife over him, the victim satisfied the requirements, and the defendant was convicted.
What about words alone?
In another case, in 2008, the Court of Appeals affirmed the conviction of armed robbery of the defendant. The Defendant, Jerome LeMon, went to a party with some friends. While at the party, he held a video camera in the face of girls and would ask them inappropriate questions. The host made LeMon leave, and he got into a car with two other men. While in the car, LeMon became infuriated and started yelling at the two other men. LeMon ordered them to turn over their cell phones, and when they refused, LeMon told them that he had a knife in his pocket, and he was going to stab him in the heart if he didn’t give up his phone. The man gave LeMon the phone, and he threw them on the floor of the car. The Court found him guilty of armed robbery because he threatened the two men with his knife to get them to turn over their cell phones.
Penalty for Armed Robbery in Georgia
Armed robbery is is a felony conviction in Georgia. The penalties for Armed Robbery in Georgia are very stiff. A conviction of Armed Robbery carries a potential sentence of ten to twenty years in prison with the very minimum being ten years in prison with no early release. Prison terms for life are another common penalty for Armed Robbery.
The most severe penalty in Georgia for Armed Robbery is the death penalty.
There are even stricter penalties for Armed Robbery of a Pharmacy. If you rob a pharmacy and steal prescription drugs and also inflict serious bodily injury upon someone during the crime, you will face a prison sentence of no less than fifteen years. You must do at least ten years in prison with no early release program available to you.
If you have a serious violent felony conviction anywhere in the United States, and then you are convicted or another serious felony in Georgia that does not require the death penalty, you will be sentenced to life in prison without parole.
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- Published in Aggravated Felony, Criminal, Criminal Defense, Felony, Theft
What Constitutes an Offensive Weapon in Armed Robbery
Georgia Courts have gone back and forth through the years as to what constitutes an offensive weapon as well as if replica or toys can be considered offensive weapons. After years of debating, it has been established that an offensive weapon includes not only weapons which are offensive per se, but also embraces other instrumentalities not normally considered to be offensive in and of themselves but which may be found by a jury likely to produce death or great bodily injury depending on the manner and means of their use.
Weapons that have been found to be offensive per se include a machete, sword, knife, and gun. These have been categorized as offensive per se because they do not have innocent qualities to them. Weapons that have honest qualities to them are things like ordinary razors, or penknives because they have an innocent purpose. The Court decided that hands and feet do not constitute weapons under the armed robbery statute.
The test for other unconventional weapons is whether the manner in which it was used constituted an offensive weapon. Whether an instrument represents a deadly or offensive weapon is one for the jury’s determination. Over the years, a starter pistol, nun chucks, tire tool, screwdriver, pellet gun, and skillet are just some of the things the jury found to be an offensive and/or a deadly weapon.
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- Published in Aggravated Felony, Battery, Criminal, Criminal Defense, Felony
Have you Been Charged with Armed Robbery in Georgia?
If you or a loved one has been charged with Armed Robbery in Georgia, we can help. While robbery is primarily taking the property of another from that person; armed robbery means that you used a weapon during the taking. Armed Robbery is considered a serious violent felony in Georgia. The offense of robbery by intimidation is a lesser-included offense of the crime of armed robbery.
Georgia Law on Armed Robbery
Georgia Code §16-8-41 states that a person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device have the appearance of such weapon.
Also, there is a new type of Armed Robbery in Georgia, Armed Robbery of a Pharmacy. This category carries stiff penalties and requires a different strategy.
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- Published in Aggravated Felony, Criminal, Criminal Defense, Felony, Theft
Punishments for Violating the Age of Consent in Georgia
Georgia has eight statutory sexual abuse charges on the books which are used to prosecute age of consent and child abuse related crimes within the state. One or more of these charges may be used to prosecute violations of the Georgia Age of Consent, as statutory rape or the Georgia equivalent of that charge.
The severity of the criminal charge (felony, misdemeanor, etc) depends on the specifics of the acts committed and the relative ages of the perpetrator and victim. Click any charge for more detailed information.
| Criminal Charge | Severity | Punishment |
|---|---|---|
| Aggravated child molestation | Felony; Misdemeanor | Punishable by life imprisonment or 25-life followed by probation for life; Jail time not to exceed 12 months and/or a fine not to exceed $1,000.00 |
| Aggravated sexual battery | Felony | Life in prison or a split sentence of 25- life, followed by probation for life |
| Aggravated sodomy | Felony; Misdemeanor | Minimum of 25 years; Jail time not to exceed 12 months and/or a fine not to exceed $1,000.00 |
| Child molestation | Felony | Punishable by imprisonment for10-30 years or by imprisonment for life.; Punishable by imprisonment for not less than five nor more than 20 years |
| Incest | Felony | 25-50 years |
| Sexual Battery | Felony | 1-5 years in prison |
| Statutory Rape | Felony; Misdemeanor | 10-20 years in prison.; 1-20 years in prison ; Jail time not to exceed 12 months and/or a fine not to exceed $1,000.00 |
| Trafficking a person for labor or sexual servitude | Felony | 25-50 years or life imprisonment |
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- Published in Criminal, Criminal Defense, Felony, Sex Offender
Statutory Rape Crime & Punishment in Georgia
The Georgia code § 16-6-3 defines two degrees of the crime statutory rape, each with associated punishments. The degree of the punishment depends on the specifics of the crime committed, with higher degrees of the charge generally receiving harsher punishments.
| Severity | Statutory Rape – Charge Description | Punishment |
|---|---|---|
| Felony STATUTORY |
|
|
| Misdemeanor STATUTORY |
If victim under age of 16 not a spouse of the offender and victim is 14-15, and offender is no more than three years older than victim | Jail time not to exceed 12 months and/or a fine not to exceed $1,000.00 |
Georgia law allows statutory rape to be enforced as a statutory charge. This means that this charge can be applied to cases in which the victim is younger than the Georgia Age of Consent, even if the victim willingly engages in sexual relations with the defendant.
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- Published in Battery, Criminal, Criminal Defense, Domestic Violence, Felony, Moral Terpitude, Sex Offender
What is the Georgia Age of Consent?
The Georgia Age of Consent is 16 years old. In the United States, the age of consent is the minimum age at which an individual is considered legally old enough to consent to participation in sexual activity. Individuals aged 15 or younger in Georgia are not legally able to consent to sexual activity, and such activity may result in prosecution for statutory rape.
Georgia statutory rape law is violated when a person has consensual sexual intercourse with an individual under age 16 who is not their spouse. While no close in age exemptions exist in Georgia, if the offender is under age 19 and the victim is no more than 4 years younger, the offense is classified as a misdemeanor rather than a felony.
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- Published in Aggravated Felony, Criminal, Criminal Defense, Felony, Moral Terpitude, Sex Offender
What are False Pretenses?
When an individual commits the crime of false pretenses, they misrepresent a fact in order to acquire someone else’s property. Obtaining property through false pretenses is a crime, punishable in most states by fines and imprisonment. While state laws vary in defining this crime, the general idea is the same: to be found guilty of false pretenses, the prosecutor must show that the individual acquired the property at issue by intentionally misstating a fact. This means that if an individual obtains another’s property by stating a fact that they mistakenly believe to be true, they have not committed the crime of false pretenses. Depending on the state statute, the property acquired by false pretenses can include tangible property, like a car or house, and intangible property, such as information that has been obtained.
False Pretenses vs. Larceny-by-Trick
False pretenses is often confused with the crime of larceny-by-trick. Larceny-by-trick is almost identical to the crime of false pretenses. However, there is one big difference: In the crime of false pretenses, the title to the property is actually transferred to the perpetrator, whereas someone found guilty of larceny-by-trick does not hold the title. A party commits larceny-by-trick when they steal another party’s property by deception. Therefore, no actual transfer of title occurs with larceny-by-trick. For instance, if an individual tells an elderly man that she is his long-lost daughter with the intent of causing him to transfer the title of his vacation house to her, she has committed the crime of false pretenses. If, instead, the individual convinced the elderly man that she was just going to borrow his car but never came back with it, this would be larceny or larceny-by-trick.
False Pretenses vs. Fraudulent Misrepresentation
The crime of false pretenses has a civil counterpart as well: a civil cause of action known as fraudulent misrepresentation. While fraudulent misrepresentation has the same legal elements as false pretenses, the court system in which a party will be charged for the crime differs. If a party intentionally deceives another, causing them to transfer title of their property, the city or state will prosecute the perpetrator for the crime of false pretenses. However, to allow the victim a remedy for the crime, the civil courts allow an individual to bring a fraudulent misrepresentation action for damages against the thief.
Getting Legal Help
If you believe that you have been defrauded by false pretenses, contact the appropriate authorities. On the other hand, if you have been accused of defrauding by false pretenses, speak to a criminal defense attorney right away. Being found guilty of the crime of false pretenses carries with it the possibility of severe punishment, and you will benefit from having a knowledgeable criminal defense lawyer on your side.
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- Published in Criminal, Criminal Defense, Felony, Moral Terpitude, Theft