HB 535: Penal institutions; credit for time served regarding probation revocation sentencing; provide

House Bill 535 (AS PASSED HOUSE AND SENATE)

By: Representatives Smith of the 18th, Hong of the 103rd, Leverett of the 123rd, Evans of the 57th, and Miller of the 62nd

A BILL TO BE ENTITLED

AN ACT

To amend Part 1 of Article 2 of Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to schedules, offenses, and penalties relative to the regulation of controlled substances, so as to clarify and revise mandatory minimum departure provisions for defendants convicted of trafficking of certain substances; to provide for a statutory sentencing limit applicable to the offense of trafficking in fentanyl; to amend Code Section 42-8-38 of the Official Code of Georgia Annotated, relating to arrest or graduated sanctions for probationers violating terms, hearing, disposition of charge, and procedure when probation revoked in county other than that of conviction, so as to provide for credit for time served regarding probation revocation sentencing; to provide for effective dates and applicability; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Part 1 of Article 2 of Chapter 13 of Title 16 of the Official Code of Georgia Annotated, relating to schedules, offenses, and penalties relative to the regulation of controlled substances, is amended by revising subsections (b.1) and (g) through (i) of Code Section 16-13-31, relating to trafficking in cocaine, illegal drugs, marijuana, or methamphetamine and penalties, as follows:

"(b.1) Except as authorized by this article, any person who sells, manufactures, delivers, brings into this state, or has possession of four grams or more of fentanyl as identified in subparagraph (F) of paragraph (2) of Code Section 16-13-26, the fentanyl analog structural class as identified in paragraph (13) of Code Section 16-13-25, or any salt, isomer, or salt of an isomer thereof, as described in Schedules I and II, of any mixture containing four grams or more of fentanyl any such substance in violation of this article commits the felony offense of trafficking in fentanyl and, upon conviction thereof, shall be punished as follows:

(1) If the quantity of such substances involved is four grams or more, but less than eight grams, the person shall be sentenced to a mandatory minimum term of imprisonment of ten years and shall pay a fine of $75,000.00;

(2) If the quantity of such substances involved is eight grams or more, but less than 14 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of 15 years and shall pay a fine of $150,000.00;

(3) If the quantity of such substances involved is 14 grams or more, but less than 28 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $250,000.00; and

(4) If the quantity of such substances involved is 28 grams or more, the person shall be sentenced to a mandatory minimum term of imprisonment of 35 years and shall pay a fine of $750,000.00."

"(g)(1) The district attorney may move the sentencing court to impose a reduced or suspended sentence upon any person who is convicted of a violation of this Code section who provides substantial assistance in the identification, arrest, or conviction of any of his or her accomplices, accessories, coconspirators, or principals. Upon good cause shown, the motion may be filed and heard in camera. Upon hearing such motion, the sentencing court may impose a reduced or suspended sentence if such court finds that the defendant has rendered such substantial assistance.

(2)(A) The sentencing court may, in its discretion, depart from the mandatory minimum sentence specified for a person who is convicted of a violation of this Code section as set forth in subparagraph (B) of this paragraph if such court concludes that:

(i) The defendant was not a leader of the criminal conduct;

(ii) The defendant did not possess or use a firearm, dangerous weapon, or hazardous object during the crime;

(iii) The criminal conduct did not result in a death or serious bodily injury to a person other than to a person who is a party to the crime;

(iv) The defendant has no prior felony conviction; and

(v) The interests of justice will not be served by the imposition of the prescribed mandatory minimum sentence.

(B) The sentencing departure ranges pursuant to subparagraph (A) of this paragraph shall be as follows:

(i) Any person convicted of violating subparagraph (a)(1)(A) of this Code section, paragraph (2) of subsection (a) of this Code section relating to the quantity of drugs specified in subparagraph (a)(1)(A) of this Code section, or paragraph (1) of subsection (e) or (f) of this Code section, imprisonment for not less than five nor more than ten years and a fine of not less than $100,000.00 nor more than $200,000.00;

(ii) Any person convicted of violating subparagraph (a)(1)(B) of this Code section, paragraph (2) of subsection (a) of this Code section relating to the quantity of drugs specified in subparagraph (a)(1)(B) of this Code section, or paragraph (2) of subsection (e) or (f) of this Code section, imprisonment for not less than seven years and six months nor more than 15 years and a fine of not less than $150,000.00 nor more than $300,000.00;

(iii) Any person convicted of violating subparagraph (a)(1)(C) of this Code section, paragraph (2) of subsection (a) of this Code section relating to the quantity of drugs specified in subparagraph (a)(1)(C) of this Code section, or paragraph (3) of subsection (e) or (f) of this Code section, imprisonment for not less than 12 years and six months nor more than 25 years and a fine of not less than $500,000.00 nor more than $1 million;

(iv) Any person convicted of violating paragraph (1) of subsection (b) or (d) of this Code section, imprisonment for not less than two years and six months nor more than five years and a fine of not less than $25,000.00 nor more than $50,000.00;

(v) Any person convicted of violating paragraph (2) of subsection (b) of this Code section, imprisonment for not less than five years nor more than ten years and a fine of not less than $50,000.00 nor more than $100,000.00;

(vi) Any person convicted of violating paragraph (3) of subsection (b) of this Code section, imprisonment for not less than 12 years and six months nor more than 25 years and a fine of not less than $250,000.00 nor more than $500,000.00;

(vii) Any person convicted of violating paragraph (1) of subsection (b.1) of this Code section, imprisonment for not less than two years and six months nor more than five ten years and a fine of not less than $12,500.00 nor more than $25,000.00 $75,000.00;

(viii) Any person convicted of violating paragraph (2) of subsection (b.1) of this Code section, imprisonment for not less than five years nor more than ten 15 years and a fine of not less than $25,000.00 nor more than $50,000.00 $150,000.00;

(ix) Any person convicted of violating paragraph (3) of subsection (b.1) of this Code section, imprisonment for not less than ten years nor more than 20 25 years and a fine of not less than $50,000.00 nor more than $100,000.00 $250,000.00;

(x) Any person convicted of violating paragraph (4) of subsection (b.1) of this Code section, imprisonment for not less than 15 years nor more than 30 35 years and a fine of not less than $250,000.00 nor more than $500,000.00 $750,000.00;

(xi) Any person convicted of violating paragraph (1) of subsection (c) of this Code section, imprisonment for not less than two years and six months nor more than five years and a fine of not less than $50,000.00 nor more than $100,000.00;

(xii) Any person convicted of violating paragraph (2) of subsection (c) of this Code section, imprisonment for not less than three years and six months nor more than seven years and a fine of not less than $125,000.00 nor more than $250,000.00;

(xiii) Any person convicted of violating paragraph (3) of subsection (c) of this Code section, imprisonment for not less than seven years and six months nor more than 15 years and a fine of not less than $500,000.00 nor more than $1 million; and

(xiv) Any person convicted of violating paragraph (2) of subsection (d) of this Code section, imprisonment for not less than seven years and six months nor more than 15 years and a fine of not less than $125,000.00 nor more than $250,000.00.

(C) If the sentencing court departs from the mandatory minimum sentence pursuant to this paragraph, such court shall specify on the record the circumstances for such departure and the interests served by such departure. Any such order shall be appealable by the State of Georgia pursuant to Code Section 5-7-1.

(D) As used in this paragraph, the term:

(i) 'Dangerous weapon' shall have the same meaning as set forth in Code Section

16-11-121.

(ii) 'Firearm' shall have the same meaning as set forth in Code Section 16-11-131.

(iii) 'Hazardous object' shall have the same meaning as set forth in Code Section

20-2-751.

(iv) 'Leader' means a person who planned and organized others and acted as a guiding force in order to achieve a common goal.

(3) The sentencing court may, in its discretion, depart from the mandatory minimum sentence specified in this Code section for a person who is convicted of a violation of this Code section when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum.

(h)(1) Except as provided in paragraph (2) of this subsection and subsection (g) of this Code section, any Any person who violates any provision of this Code section shall be punished as provided for in the applicable mandatory minimum punishment; provided, however, that any such punishment imposed shall be and for not more than 30 years of imprisonment and by a fine not to exceed $1 million.

(2) Except as provided in subsection (g) of this Code section, any person who violates any provision of subsection (b.1) of this Code section shall be punished as provided for in the applicable mandatory minimum punishment; provided, however, that any such punishment imposed shall be for not more than 40 years of imprisonment and by a fine not to exceed $1 million.

(i) Except as provided in subsection (g) of this Code section and notwithstanding the provisions of Code Section 16-13-2 to the contrary, with respect to any person who is found to have violated this Code section, no portion of the mandatory minimum sentence shall be suspended, stayed, probated, deferred, or otherwise withheld by the sentencing court. Any sentence imposed pursuant to subsection (g) of this Code section shall not be reduced by any earned time, early release, work release, leave, or other sentence-reducing measures under programs administered by the Department of Corrections, the effect of which would be to reduce the period of incarceration ordered by the sentencing court or any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles; provided, however, that during the final year of incarceration, a defendant so sentenced shall be eligible to be considered for participation in a Department of Corrections administered transitional center or work release program."

SECTION 2.

Code Section 42-8-38 of the Official Code of Georgia Annotated, relating to arrest or graduated sanctions for probationers violating terms, hearing, disposition of charge, and procedure when probation revoked in county other than that of conviction, is amended by revising subsection (c) as follows:

"(c) After the hearing, the court may revoke, modify, or continue the probation. If the probation is revoked, the court may order the execution of the sentence originally imposed or of any portion thereof. In such event, the time that the defendant has served under probation shall be considered as time served and shall be deducted from and considered a part of the time he or she was originally sentenced to serve. Regarding any carceral sentence imposed pursuant to a revocation of probation, a person shall be given full credit for time served for each day served in confinement since the date of the commission of the violation in accordance with Code Section 17-10-11, excluding any time tolled in accordance with Code Section 42-8-36."

SECTION 3.

(a) Except as provided in subsection (b) of this section, this Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to offenses committed on or after such date.

(b) Section 2 of this Act shall become effective on July 1, 2026.

SECTION 4.

All laws and parts of laws in conflict with this Act are repealed.