GA Code § 17-10-17 (2021)
2021 Georgia Code|Title 17 - Criminal Procedure|Chapter 10 - Sentence and Punishment|Article 1 - Procedure for Sentencing and Imposition of Punishment|§ 17-10-17. Sentencing of Defendants Guilty of Crimes Involving Bias or Prejudice; Identification of Increased Sentence

  As used in this Code section, the term "designated misdemeanor" means:   Simple assault as defined in Code Section 16-5-20;   Simple battery as defined in Code Section 16-5-23;   Battery as defined in Code Section 16-5-23.1;   Criminal trespass as defined in Code Section 16-7-21; and   Misdemeanor theft by taking as defined in Code Section 16-8-2.     Subject to the notice requirement provided in Code Section 17-10-18 and in enhancement of the penalty imposed, if the trier of fact determines beyond a reasonable doubt that the defendant intentionally selected any victim or group of victims or any property as the object of the offense because of such victim's or group of victims' actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability, the judge imposing sentence shall:   If the offense for which the defendant was convicted is a designated misdemeanor, impose a sentence of imprisonment for a period of not less than six nor more than 12 months, and a fine not to exceed $5,000.00; or   If the offense for which the defendant was convicted is a felony, impose a sentence of imprisonment for a period of not less than two years, and a fine not to exceed $5,000.00.     The judge shall state when he or she imposes the sentence the amount of the increase of the sentence based on the application of subsection (b) of this Code section.     (Code 1981, §17-10-17, enacted by Ga. L. 2020, p. 10, § 1/HB 426.)   Cross references.   - Rights of citizens generally, § 1-2-6.    Bias crime report, § 17-4-20.2.   Editor's notes.   - This Code section formerly pertained to sentencing and parole of defendants guilty of crimes involving bias or prejudice. The former Code section was based on Ga. L. 2000, p. 224, § 1 and was repealed by Ga. L. 2020, p. 10, § 1/HB 426, effective July 1, 2020.   JUDICIAL DECISIONS   Former O.C.G.A.    § 17-10-17, as enacted, was unconstitutionally vague. - Absent some qualification on "bias or prejudice," former O.C.G.A. § 17-10-17 was so vague that persons of common intelligence must necessarily guess at the statute's meaning and differ as to the statute's application and, thus, former § 17-10-17 was too vague to justify the imposition of enhanced criminal punishment for its violation and additionally, former § 17-10-17 could not be upheld because the statute impermissibly delegated basic policy matters to police officers, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications; therefore, the sentence enhancement that the defendants selected the defendants' victims because of racial bias and prejudice violated defendants' due process rights under U.S. Const., amend. 1, 5, 8, and 14 and the corresponding state constitutional provisions; accordingly, the defendants' sentence enhancements were reversed. Botts v. State, 278 Ga. 538, 604 S.E.2d 512 (2004).    Cited in Palmaka v. State, 280 Ga. App. 761, 634 S.E.2d 883 (2006); Laseter v. State, 294 Ga. App. 12, 668 S.E.2d 495 (2008).   RESEARCH REFERENCES   Am. Jur. 2d.   - 15 Am. Jur. 2d., Civil rights, § 21 et seq.