24 LC 48 1126
House Bill 1201
By: Representatives Gaines of the 120
th
, Smith of the 18
th
, Jones of the 47
th
, Silcox of the
53
rd
, Hong of the 103
rd
, and others
A BILL TO BE ENTITLED
AN ACT
To amend Code Sections 17-10-21 and 35-3-37 of the Official Code of Georgia Annotated,
1
relating to vacating of sentence for trafficking victim defendants and review of individual's2
criminal history record information, definitions, privacy considerations, written application3
requesting review, and inspection, respectively, so as to provide for the vacating of sentences4
of victims of trafficking sentenced under Article 3 of Chapter 8 of Title 42, relating to first5
offenders; to provide for related matters; to repeal conflicting laws; and for other purposes.6
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:7
SECTION 1.8
Code Section 17-10-21 of the Official Code of Georgia Annotated, relating to vacating of9
sentence for trafficking victim defendants, is amended by revising paragraphs (1), (4), and10
(5) of subsection (a) as follows:11
"(1) A defendant convicted of an offense and sentenced, or a defendant who was
12
sentenced pursuant to Code Section 42-8-60 or 16-13-2, as a direct result of the defendant13
being the victim of an offense of trafficking under Code Section 16-5-46 may petition the14
court imposing the sentence to vacate such conviction and sentence or the sentence15
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imposed pursuant to Code Section 42-8-60 or 16-13-2. Such court shall maintain the16
jurisdiction, power, and authority to vacate such conviction and sentence."17
"(4) If the prosecuting attorney, to the court, consents in writing to the vacatur of such18
conviction or fails to respond to such petition within 30 days of service, the court19
imposing the conviction and sentence or the sentence imposed pursuant to Code Section20
42-8-60 or 16-13-2 shall, without notice or hearing, issue an order vacating the21
conviction and sentence or the sentence imposed pursuant to Code Section 42-8-60 or22
16-13-2 and shall also issue an order restricting access to criminal history record23
information for such offense.24
(5)(A) If the prosecuting attorney, to the court, objects in writing to the petition, the25
court shall hold a hearing within 90 days of the filing of the petition. The court shall26
hear evidence and determine, by a preponderance of the evidence, whether the27
defendant committed such offense as a direct result of being the victim of an offense28
of trafficking under Code Section 16-5-46. If the court finds, by a preponderance of29
the evidence, that the defendant committed such offense as a direct result of being the30
victim of an offense of trafficking under Code Section 16-5-46, the court may issue31
an order vacating the conviction and sentence or the sentence imposed pursuant to32
Code Section 42-8-60 or 16-13-2. The vacatur of a sentence under this paragraph33
which was imposed pursuant to Code Section 42-8-60 or 16-13-2 shall result in the34
discharge and dismissal of the action.35
(B) If such order to vacate is issued, the court shall also issue an order restricting36
access to criminal history record information for such offense and no fee shall be37
charged by the Georgia Crime Information Center or any other entity for restricting38
access to criminal history record information under this paragraph.39
(C) As used in this paragraph, the term 'restrict' shall have the same meaning as set40
forth in Code Section 35-3-37."41
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SECTION 2.
42
Code Section 35-3-37 of the Official Code of Georgia Annotated, relating to review of43
individual's criminal history record information, definitions, privacy considerations, written44
application requesting review, and inspection, is amended by revising paragraph (6) of45
subsection (j) as follows:46
"(6)(A) A defendant convicted of an offense and sentenced, or a defendant who was
47
sentenced pursuant to Code Section 42-8-60 or 16-13-2, while such individual was a48
victim of an offense of trafficking under Code Section 16-5-46 may petition the court49
imposing the sentence to restrict such conviction and the sentence or sentence imposed50
pursuant to Code Section 42-8-60 or 16-13-2. Such court shall maintain the51
jurisdiction, power, and authority to restrict such conviction and sentence.52
(B) The defendant shall serve the petition provided for under paragraph (1) of this53
subsection upon the prosecuting attorney, and such petition:54
(i) Shall be submitted on a form promulgated by the Attorney General; and55
(ii) May include documentation of a defendant's status as a victim of an offense of56
trafficking under Code Section 16-5-46 at the time of the offense; provided, however,57
that official documentation shall not be required to obtain relief under this paragraph. 58
Such documentation shall create a rebuttable presumption that the defendant was a59
victim of trafficking under Code Section 16-5-46. As used in this subparagraph, the60
term 'official documentation' includes, but is not limited to, the following:61
(I) A copy of an official record, certification, or eligibility letter from a federal,62
state, tribal, or local proceeding showing that the defendant was a victim of63
trafficking under Code Section 16-5-46;64
(II) An affidavit, a letter, or sworn testimony from a member of the clergy, medical65
professional, member of a victim services organization, or certified, licensed, or66
registered professional from whom the defendant has sought assistance, counseling,67
or legal counsel related to his or her victimization; or68
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(III) Any other evidence that the court determines is of sufficient credibility or
69
probative value.70
(C) If the prosecuting attorney, to the court, consents in writing to the restriction of71
such conviction and sentence or the sentence imposed pursuant to Code Section
72
42-8-60 or 16-13-2 or fails to respond to such petition within 30 days of service, the73
court imposing the conviction and sentence or the sentence imposed pursuant to Code74
Section 42-8-60 or 16-13-2 shall, without notice or hearing, issue an order restricting75
the conviction and sentence access to criminal history record information for such76
offense.77
(D) If the prosecuting attorney, to the court, objects in writing to the petition, the court78
shall determine, by a preponderance of the evidence, whether the defendant committed79
such offense while such individual was a victim of an offense of trafficking under Code80
Section 16-5-46. If the court finds, by a preponderance of the evidence, that the81
defendant committed such offense while such individual was a victim of an offense of82
trafficking under Code Section 16-5-46, the court may issue an order restricting the83
conviction and sentence access to criminal history record information for such offense. 84
The court shall hold a hearing within 90 days of the filing of the petition to hear85
evidence for purposes of making a determination under this subparagraph or make a86
determination upon the pleadings or record.87
(E) When the petition provided for under subparagraph (A) of this paragraph is filed,88
it shall be filed under seal.89
(F) For purposes of considering such petition, testimony from the defendant or any90
other party may be taken by the court by remote electronic means.91
(G) No fee shall be charged to an individual for restricting access to criminal history92
record information under this paragraph."93
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SECTION 3.
94
All laws and parts of laws in conflict with this Act are repealed.95
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