Defending Possession Of Firearm Cases In Cobb County And In The Atlanta-Metropolitan Area
The Offense
Elements Of The Crime
The official title of this offense under Georgia law is Possession of Firearm or Knife During Commission of or Attempt to Commit Certain Crimes. Georgia Code 16-11-106 provides that:
Any person who shall have on or within arm's reach of his or her person a firearm or a knife having a blade of three or more inches in length during the commission of, or the attempt to commit:
(1) Any crime against or involving the person of another;
(2) The unlawful entry into a building or vehicle;
(3) A theft from a building or theft of a vehicle;
(4) Any crime involving the possession, manufacture, delivery, distribution, dispensing, administering, selling, or possession with intent to distribute any controlled substance or marijuana as provided in Georgia Code Section 16-13-30, any counterfeit substance as defined in Georgia Code Section 16-13-21, or any noncontrolled substance as provided in Georgia Code Section 16-13-30.1; or
(5) Any crime involving the trafficking of cocaine, marijuana, or illegal drugs as provided in Georgia Code Section 16-13-31.
Criminal Penalties
This Offense Is Classified As A Felony
Violation of this offense is a felony, and upon a conviction, a person shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence which the person has received.
In other words, in addition to any other sentence imposed, if a person is convicted of this offense, the judge must also sentence that person to five years, and that sentence must be served after any other sentence imposed.
Upon a second or subsequent conviction of this offense, the judge must sentence the person to ten years, and that period of ten years may not be suspended or served on probation.
How Can I Be Charged With This Crime If The Gun Was Not Found On Me?
Pay close attention to the precise wording of the statute. Not only is it illegal to possess the firearm in this type of circumstance, but it is also illegal to have within arm's reach of his or her person a firearm or a knife. The Georgia legislature added this language into the law in 1987. When determining when the weapon was within arm's reach, courts look at the unique circumstances and factors of each individual case. For example, in a case where cocaine and a gun were found in a residence controlled by defendant, the judge ordered that the jury could consider evidence of the small size and crowded conditions within the residence and infer that it was inevitable that defendant passed even momentarily within arm's reach of the gun. Gibson v. State, 223 Ga. App. 103 (1996).
Will I Really Have To Serve The Five-Year Mandatory Sentence In Prison?
This is another common question I get from my clients. The answer is it simply depends on the individual facts of your case. Remember, you will not be sentenced for anything until a jury convicts you or you enter a guilty plea.
Often times, plea negotiations can result in some or many charges being reduced or dismissed altogether. In addition, with this offense, a criminal defense attorney and a prosecutor can agree that this five-year sentence-which has to be served after any other sentence that is imposed-can be suspended, meaning that the five-year sentence can be deferred, or suspended, while the defendant completes a period of probation. If that person can do so successfully, then he or she will not have to serve that sentence in custody. It is important to keep in mind, however, that this sentencing option will normally not be available to people upon a second or subsequent conviction for this offense.
As you can see, this charge is very serious, and can carry some very harsh criminal penalties. That is why you need to hire an experienced criminal defense attorney who is equipped to help you in this type of case.