GA Code § 16-11-131 (2021)
2021 Georgia Code|Title 16 - Crimes and Offenses|Chapter 11 - Offenses Against Public Order and Safety|Article 4 - Dangerous Instrumentalities and Practices|Part 3 - Carrying and Possession of Firearms|§ 16-11-131. Possession of Firearms by Convicted Felons and First Offender Probationers

  As used in this Code section, the term:   "Felony" means any offense punishable by imprisonment for a term of one year or more and includes conviction by a court-martial under the Uniform Code of Military Justice for an offense which would constitute a felony under the laws of the United States.   "Firearm" includes any handgun, rifle, shotgun, or other weapon which will or can be converted to expel a projectile by the action of an explosive or electrical charge.     Any person who is on probation as a felony first offender pursuant to Article 3 of Chapter 8 of Title 42, who is on probation and was sentenced for a felony under subsection (a) or (c) of Code Section 16-13-2, or who has been convicted of a felony by a court of this state or any other state; by a court of the United States including its territories, possessions, and dominions; or by a court of any foreign nation and who receives, possesses, or transports any firearm commits a felony and, upon conviction thereof, shall be imprisoned for not less than one year nor more than ten years; provided, however, that upon a second or subsequent conviction, such person shall be imprisoned for not less than five nor more than ten years; provided, further, that if the felony for which the person is on probation or has been previously convicted is a forcible felony, then upon conviction of receiving, possessing, or transporting a firearm, such person shall be imprisoned for a period of five years.   This Code section shall not apply to any person who has been pardoned for the felony by the President of the United States, the State Board of Pardons and Paroles, or the person or agency empowered to grant pardons under the constitutions or laws of the several states or of a foreign nation and, by the terms of the pardon, has expressly been authorized to receive, possess, or transport a firearm.   A person who has been convicted of a felony, but who has been granted relief from the disabilities imposed by the laws of the United States with respect to the acquisition, receipt, transfer, shipment, or possession of firearms by the secretary of the United States Department of the Treasury pursuant to 18 U.S.C. Section 925, shall, upon presenting to the Board of Public Safety proof that the relief has been granted and it being established from proof submitted by the applicant to the satisfaction of the Board of Public Safety that the circumstances regarding the conviction and the applicant's record and reputation are such that the acquisition, receipt, transfer, shipment, or possession of firearms by the person would not present a threat to the safety of the citizens of Georgia and that the granting of the relief sought would not be contrary to the public interest, be granted relief from the disabilities imposed by this Code section. A person who has been convicted under federal or state law of a felony pertaining to antitrust violations, unfair trade practices, or restraint of trade shall, upon presenting to the Board of Public Safety proof, and it being established from said proof, submitted by the applicant to the satisfaction of the Board of Public Safety that the circumstances regarding the conviction and the applicant's record and reputation are such that the acquisition, receipt, transfer, shipment, or possession of firearms by the person would not present a threat to the safety of the citizens of Georgia and that the granting of the relief sought would not be contrary to the public interest, be granted relief from the disabilities imposed by this Code section. A record that the relief has been granted by the board shall be entered upon the criminal history of the person maintained by the Georgia Crime Information Center and the board shall maintain a list of the names of such persons which shall be open for public inspection.   As used in this Code section, the term "forcible felony" means any felony which involves the use or threat of physical force or violence against any person and further includes, without limitation, murder; murder in the second degree; burglary in any degree; robbery; armed robbery; home invasion in any degree; kidnapping; hijacking of an aircraft or hijacking a motor vehicle in the first degree; aggravated stalking; rape; aggravated child molestation; aggravated sexual battery; arson in the first degree; the manufacturing, transporting, distribution, or possession of explosives with intent to kill, injure, or intimidate individuals or destroy a public building; terroristic threats; or acts of treason or insurrection.   Any person sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42 or sentenced pursuant to subsection (a) or (c) of Code Section 16-13-2 and subsequently discharged without court adjudication of guilt as a matter of law pursuant to Code Section 42-8-60 or 16-13-2, as applicable, shall, upon such discharge, be relieved from the disabilities imposed by this Code section.    (b.1)Any person who is prohibited by this Code section from possessing a firearm because of conviction of a forcible felony or because of being on probation as a first offender or under conditional discharge for a forcible felony and who attempts to purchase or obtain transfer of a firearm shall be guilty of a felony and upon conviction shall be punished by imprisonment for not less than one year nor more than five years; provided, however, that upon a second or subsequent conviction, such person shall be punished by imprisonment for not less than five nor more than ten years.   (Code 1933, § 26-2914, enacted by Ga. L. 1980, p. 1509, § 1; Ga. L. 1982, p. 1171, § 2; Ga. L. 1983, p. 945, § 1; Ga. L. 1987, p. 476, §§ 1, 2; Ga. L. 1989, p. 14, § 16; Ga. L. 2000, p. 1630, § 5; Ga. L. 2012, p. 899, § 8-5/HB 1176; Ga. L. 2014, p. 426, § 4/HB 770; Ga. L. 2014, p. 444, § 2-5/HB 271; Ga. L. 2016, p. 443, § 6C-2/SB 367; Ga. L. 2017, p. 417, § 3-1/SB 104; Ga. L. 2018, p. 550, § 4-4/SB 407.)    The 2016 amendment,  effective July 1, 2016, substituted "as a matter of law pursuant to Code Section 42-8-60" for "pursuant to Code Section 42-8-62" near the middle of subsection (f).    The 2017 amendment,  effective July 1, 2017, in the middle of subsection (e), inserted "hijacking a" and inserted "in the first degree".    The 2018 amendment,  effective July 1, 2018, in subsection (b), inserted ", who is on probation and was sentenced for a felony under subsection (a) or (c) of Code Section 16-13-2," near the middle, inserted "year", and substituted "ten years" for "five years" in the middle, in the proviso, inserted "upon a second or subsequent conviction, such person shall be imprisoned for not less than five nor more than ten years; provided, further, that", and substituted "for" for "as to" in the middle of the proviso; in paragraph (b.1), inserted "or under conditional discharge", deleted "pursuant to this Code section" following "forcible felony" near the middle, inserted "upon conviction", inserted "year" in the middle, and added the proviso; and, in subsection (f), substituted "sentenced" for "placed on probation" near the beginning, and, in the middle, inserted "or sentenced pursuant to subsection (a) or (c) of Code Section 16-13-2" and inserted "or 16-13-2, as applicable,".   Cross references.   - Unauthorized possession of weapon by person confined in penal institution, § 42-5-63.   Code Commission notes.   - Pursuant to Code Section 28-9-5, in 1988, "of" was deleted following "Chapter " in subsection (e) (now (f)).   Pursuant to Code Section 28-9-5, in 1996, "18 U.S.C. Section 925" was substituted for "18 U.S.C. 925" in the first sentence of subsection (d).   Editor's notes.   - Ga. L. 2012, p. 899, § 9-1(a)/HB 1176, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense and shall be considered a prior conviction for the purpose of imposing a sentence that provides for a different penalty for a subsequent conviction for the same type of offense, of whatever degree or level, pursuant to this Act."   Administrative Rules and Regulations.   - Brady Handgun Violence Prevention Act, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Crime Information Center Council, § 140-2-.17.   Law reviews.   - For annual survey of criminal law, see 56 Mercer L. Rev. 153 (2004). For article on the 2012 amendment of this Code section, see 29 Ga. St. U.L. Rev. 290 (2012). For article on the 2016 amendment of this Code section, see 33 Ga. St. U.L. Rev. 139 (2016). For article on the 2017 amendment of this Code section, see 34 Ga. St. U.L. Rev. 61 (2017). For annual survey on criminal law, see 69 Mercer L. Rev. 73 (2017). For article on the 2018 amendment of this Code section, see 35 Ga. St. U.L. Rev. 45 (2018). For annual survey on criminal law, see 70 Mercer L. Rev. 63 (2018).   JUDICIAL DECISIONS   ANALYSIS    General Consideration   Double Jeopardy    OPINIONS OF THE ATTORNEY GENERAL    Former Code 1933, § 26-2914 (see now O.C.G.A. § 16-11-131) was only an additional qualification to requirements presently provided in former Code 1933, § 26-2904 (see now O.C.G.A. § 16-11-129(b)(3)). 1980 Op. Att'y Gen. No. U80-32.   Restoration, pursuant to pardon, of right to receive, possess or transport firearm.   - State Board of Pardons and Paroles has authority to restore, in a pardon to a Georgian convicted of a felony, the right to receive, possess or transport in commerce a firearm, so long as the pardon expressly uses wording which appears in 18 U.S.C. appx. § 1203(2). 1980 Op. Att'y Gen. No. 80-122.    An order of restoration of civil rights granted by the State Board of Pardons and Paroles which expressly authorizes an individual to receive, possess, or transport a firearm satisfies the requirements of O.C.G.A. § 16-11-131(c) mandating the granting of a pardon. 1986 Op. Att'y Gen. No. 86-4.   RESEARCH REFERENCES   ALR.   - Propriety of using single prior felony conviction as basis for offense of possessing weapon by convicted felon and to enhance sentence, 37 A.L.R.4th 1168.   Sufficiency of evidence as to nature of firearm in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms, 37 A.L.R.4th 1179.   Fact that weapon was acquired for self-defense or to prevent its use against defendant as defense in prosecution for violation of state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons, 39 A.L.R.4th 967.   Sufficiency of prior conviction to support prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons, 39 A.L.R.4th 983.   Sufficiency of evidence of possession in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying, or using firearms or weapons, 43 A.L.R.4th 788.   What amounts to "control" under state statute making it illegal for felon to have possession or control of firearm or other dangerous weapon, 66 A.L.R.4th 1240.   Fact that gun was broken, dismantled, or inoperable as affecting criminal responsibility under weapons statute, 81 A.L.R.4th 745.   What constitutes "constructive possession" of unregistered or otherwise prohibited weapon under state law, 88 A.L.R.5th 121.   What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 USCS § 5861, 133 A.L.R. Fed. 347.   Validity of state gun control legislation under state constitutional provisions securing right to bear arms - convicted felons, 85 A.L.R.6th 641.   Construction and application of state statutes and local ordinances regulating licenses or permits to carry concealed weapons, 12 A.L.R.7th 4.   Removal of Trustee in Bankruptcy Under 11 U.S.C.A. § 324(a), 44 A.L.R. Fed. 3d Art. 1.   Waiver or Loss of Protection of Federal Attorney 'Work Product' Protection for Expert Witnesses Under Fed. R. Civ. P. 26(b)(3), 44 A.L.R. Fed. 3d Art. 2.   Proscription of 18 U.S.C.A. § 922(g)(3) that Persons Who Are Unlawful Users of or Addicted to Any Controlled Substance Cannot Possess Any Firearm or Ammunition in or Affecting Commerce, 44 A.L.R. Fed. 3d Art. 3.   Balloon Payments in Chapter 13 Bankruptcy Proceedings, 44 A.L.R. Fed. 3d Art. 4.   Adoption, Rejection, and Use of "Receipt of Benefits” Test Under 11 U.S.C.A. § 523(a)(2), 44 A.L.R. Fed. 3d Art. 5.   Foreign Agents Registration Act of 1938, As Amended (22 U.S.C.A. §§ 611 et seq.), 44 A.L.R. Fed. 3d Art. 6.   Application of National Environmental Policy Act (NEPA) Antisegmentation Principle to Dredge or Fill Projects, 45 A.L.R. Fed. 3d Art. 1.   Extradition Treaties Between United States of America and United Kingdom of Great Britain and Northern Ireland - United States and United Kingdom Cases, 45 A.L.R. Fed. 3d Art. 6.