As a result of our win on appeal, we were able to have our client's sentence of probation reinstated. Saving him years in prison.
Our client was a highly respected teacher who met someone through an adult online dating app who turned out to be a minor. The minor lied about his age, saying he was 18, and even looked like an 18-year-old when they met in person.
They met once and had sex at a hotel. After this was discovered by the minor’s parents, our client was arrested. He never knew this person was a minor until the police were arresting him.
It turned out that several other men were fooled by this minor as well. They too were arrested and prosecuted.
Since Georgia still does not recognize a mistake of fact defense, our client had little choice but to enter a guilty plea to the child molestation charge. He was represented by a different attorney at that time.
At sentencing, the State was recommending a prison sentence but the judge sentenced our client to 10 years probation.
At some point before the written sentence was signed, but well after our client began serving his sentence, the judge realized that our client was not eligible for probation. Since the client drove the minor to the hotel to have sex, the judge was required to sentence him to the mandatory minimum 5-year prison sentence for child molestation. In certain situations, the Court can deviate from the mandatory minimum but not when the “offense involved the transportation of the victim.”
The Court issued an order vacating the probated sentence and scheduled the case for re-sentencing. Our client was now facing a prison sentence of at least 5 years.
We were then hired to represent him and we immediately filed a motion to reinstate our client’s sentence of probation.
We argued that the State failed to present any evidence at the time of the plea or sentencing that the client was not eligible for a deviation from the mandatory minimum. It never submitted any argument or evidence regarding the transportation of the victim at either proceeding.
We also argued that since the client had already begun serving his sentence, any attempt to now increase that sentence would be a violation of his double jeopardy rights.
The trial court denied our motion and we immediately appealed to the Georgia Court of Appeals.
On appeal, the Court of Appeals agreed that it was the State’s burden to show at the time of the plea or sentencing that the defendant was not eligible for a deviation from the mandatory minimum sentence. As such, it held that the sentence of probation was a valid sentence and could not be vacated by the Court.
Moreover, the Court of Appeals agreed that even though the written sentence had never been issued, once our client began serving the sentence, any increase in that sentence would constitute a double jeopardy violation.
Not only did our client begin serving the sentence by reporting to probation and registering as a sex offender, but he was also ordered to vacate his residence as it was initially found to be in violation of the sex offender residency restrictions. As such, he had to declare himself homeless and sleep in a tent in a parking lot until it could be determined that he could eventually return to his residence.
As a result, the Court of Appeals reversed the trial court and held that our client’s original sentence of probation must be reinstated.
Categories | Appeals,