Commonly Asked Questions

It is hard for anyone to understand the stress and uncertainty that comes with being detained or arrested. If it happens to you, it is in your best interest to exercise your right to remain silent and seek legal representation immediately. The attorneys at Garland, Samuel & Loeb, P.C. are here to protect your rights and ensure that you receive fair treatment under the law.

Key Considerations:

1. Right to Remain Silent: Under the Fifth Amendment of the U.S. Constitution, you have the right to remain silent. This means you are not obligated to answer any questions posed by law enforcement officers.

2. Avoid Self-Incrimination: Anything you say can be used against you in court. Even seemingly innocent statements can be misconstrued or taken out of context to support a case against you.

3. Request an Attorney: Immediately and clearly request to speak with an attorney. This invokes your Sixth Amendment right to legal representation. Our experienced attorneys at Garland, Samuel & Loeb, P.C. can provide the guidance and protection you need during police interactions.

4. Exceptions: There are certain situations where you may be required to provide basic identifying information, such as your name. Beyond that, it is generally advisable to refrain from further discussion until you have legal counsel present.

5. Stay Calm and Polite: It is important to remain calm and polite when interacting with law enforcement. Clearly state your intention to remain silent and your request for an attorney without engaging in confrontation.

If you have been charged with a crime, it is crucial to find a lawyer to lead you through the complex and confusing process of defending a criminal case. At Garland, Samuel & Loeb, P.C., we understand that you future depends on the outcome of your criminal case. Our firm, with over 200 years of experience in complex criminal defense, is dedicated to providing you with the best possible representation.

Why Hire a Lawyer?

1. Expertise and Experience: Our attorneys possess over 200 years of combined legal experience, making us exceptionally qualified to handle a wide range of criminal cases. We have a deep understanding of the law and the judicial system, and our team is renowned for its skill in criminal defense.

2. Strategic Defense: Each case is unique and requires a tailored approach. Our lawyers conduct a thorough review and analysis to develop innovative and strategic solutions aimed at achieving the best possible outcome for you. We leverage our extensive trial experience and legal knowledge to vigorously defend your rights.

3. Trial-Ready Representation: At Garland, Samuel & Loeb, we are not afraid to take your case to trial. Our attorneys are seasoned trial lawyers who consistently secure victories for our clients in court. Whether your case requires negotiation or litigation, we are prepared to fight for you every step of the way.

4. Reputation and Results: Our firm’s reputation is built on decades of successful advocacy. We are dedicated to obtaining justice for every client, and our track record speaks for itself. Clients choose us because they trust in our ability to deliver results.

5. Compassionate Service: We understand the gravity of the situation you are facing. Our lawyers provide compassionate and personalized service, ensuring that you feel supported and informed throughout the legal process. Your future is our priority, and we are committed to protecting it.

When charged with a crime, the stakes are incredibly high. The attorneys at Garland, Samuel & Loeb, P.C. are here to provide you with the expert defense you need.

Illegal searches by law enforcement are a serious infringement on your constitutional rights and personal freedom. If you believe you have been subjected to an unlawful search, you must know your rights and the potential remedies available.

Your Rights and Remedies:

The Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures. If the police search you illegally, the primary remedy is the exclusion of any evidence obtained as a result of that illegal search. This principle, known as the “exclusionary rule,” prevents illegally obtained evidence from being used against you in court. Additionally, any evidence derived from the illegal search, often referred to as “fruit of the poisonous tree,” may also be excluded.

What Constitutes an Illegal Search?

An illegal search occurs when law enforcement conducts a search without a valid warrant or without meeting one of the recognized exceptions to the warrant requirement.

Warrantless Searches

Generally, police must obtain a search warrant based on probable cause before conducting a search. A warrant is a legal document issued by a judge or magistrate that authorizes law enforcement to search a specific location and seize specific items. If the police conduct a search without a warrant, it is presumed to be unreasonable unless it falls under one of the established exceptions.

Exceptions to the Warrant Requirement

There are several notable exceptions where a warrantless search may be deemed legal:

1. Consent: If you voluntarily consent to the search, the police do not need a warrant. It is important to note that you have the right to refuse consent.

2. Exigent Circumstances: These are emergency situations where law enforcement believes that waiting to obtain a warrant would result in imminent danger, the destruction of evidence, or the escape of a suspect.

3. Search Incident to Lawful Arrest: Police may conduct a limited search of a person and the immediate area around them without a warrant at the time of a lawful arrest to ensure officer safety and prevent the destruction of evidence.

4. Plain View Doctrine: If an officer is lawfully present and observes evidence in plain view, they may seize it without a warrant.

5. Automobile Exception: Due to the mobile nature of vehicles, police can search a vehicle without a warrant if they have probable cause to believe it contains evidence of a crime.

6. Stop and Frisk: Also known as a Terry stop, police may stop a person and conduct a limited pat-down for weapons if they have reasonable suspicion that the person is involved in criminal activity and is armed and dangerous.

Challenging an Illegal Search

Determining whether a search was illegal involves a careful analysis of the specific circumstances and the applicability of any exceptions. At Garland, Samuel & Loeb, P.C., our skilled attorneys have extensive experience in scrutinizing the legality of searches and seizures. We are dedicated to protecting your constitutional rights and will vigorously challenge any evidence obtained through illegal means.

Generally, there are three ways to post bond, though every county and even the different federal courts have different requirements:

(1) you can hire a licensed bondsman to post the bond. This is essentially an insurance policy. You pay a premium to the bondsman (generally about 12% of the total bond amount) and the bondsman guarantees that entire bond will be paid if the defendant flees. The downside of this method is that you never get your 12% premium back (just like you never get your insurance premium back, even if you don’t have a car accident;

(2) You pay the entire amount of the bond to the sheriff. If you appear at trial, you will get all the money back.

(3) You use property as the guarantee to the sheriff that if you don’t appear at trial, you will surrender the title to your house. This procedure is different in every county. Some sheriffs require that the property be “free and clear” – meaning there is no mortgage. Other counties require that the property must be in the same county. Other counties require that the property is owned by somebody other than the defendant.

Generally, an appeal is a vehicle for challenging a conviction at trial. In the Georgia Court of Appeals, the appeal is heard by three entirely new judges. In the Georgia Supreme Court, nine Justices hear the appeal. In federal cases tried in Georgia, Florida and Alabama, three judges in the Eleventh Circuit Court of Appeals will hear the appeal.

The defendant, having been found guilty, will assert in the appeal that the trial was unfair for a variety of reasons: The prosecutor was permitted to introduce evidence that was inadmissible (such as hearsay); the defense was prohibited from introducing evidence that should have been admitted; the defendant’s Fourth Amendment rights to be free from an illegal search or seizure were violated and the trial judge did not correctly decide this issue in the trial court; the evidence at trial was not sufficient to support the conviction, notwithstanding the decision of the jury; the defendant’s trial counsel was either incompetent, or made a significant mistake at trial, or in preparing for trial and locating favorable witnesses. These are just a sample of the types of errors that can support a successful appeal.

With limited exceptions, a successful appeal does not end the case entirely. Rather, in most cases, the appellate court (the Georgia Court of Appeals, or the Georgia Supreme Court, or the Eleventh Circuit Court of Appeals) will send the case back to the trial court to conduct a new trial but without the error that led to the reversal of the conviction. Nevertheless, often, when a case is sent back to the trial court, the prosecutor will not be interested in trying the case again and may offer a far more lenient plea bargain to be done with the case.

A habeas corpus petition is somewhat like an appeal, but rather than challenging the conviction in the Court of Appeals or the Supreme Court, the defendant challenges some aspect of the conviction in the county in which the defendant is incarcerated. The habeas petition is filed in the Superior Court of that county. Unlike an appeal, in a habeas case, the defendant may present evidence to show why the original trial was unfair, or the defendant’s constitutional rights were violated. Generally, a habeas petition is filed after the defendant has lost the direct appeal.

In the state courts of Georgia, Magistrates are, in fact, judges. But they have limited authority. Generally, magistrates in criminal cases preside over the initial appearance of the defendant (who has just been arrested) and for further proceedings prior to an indictment, such as bond hearings. Once the case has been indicted, or a formal accusation has been filed, the case will be assigned to a State Court judge (for misdemeanors) or a Superior Court Judge (for felonies). At that point, the Magistrate Judge has no further role in the case.In federal court, the Magistrate Judges fulfill some of the same responsibilities, but federal Magistrate Judges continue to play a role in the case, even after indictment, including hearing motions that challenge the legality of a search or seizure and challenges to the validity of an indictment. Only the judge, though, can preside over the trial of a felony in federal court.

Grand juries initiate formal criminal charges in felony cases in both state and federal court. Though historically, the grand jury was supposed to prevent “abusive” or unfair prosecutions, these days, the grand jury basically votes on an indictment and very rarely votes against returning an indictment. The defense has no role whatsoever in the grand jury process and does not appear at the grand jury (except in cases involving police officers as defendants). The prosecutor simply presents evidence why the grand jury should indict and the grand jury does exactly what the prosecutor requests. The prosecutor is only required to present “probable cause” that the defendant committed the crime, not proof beyond a reasonable doubt.

This is a very complex question that cannot be answered without an in-depth knowledge of your case. This is why it is imperative that you hire an experienced criminal defense lawyer who has the expertise to give you the best advice as to how to handle your case.

The fee for a criminal defense lawyer can vary widely depending on the nature of the charge, the venue in which the case is being prosecuted, and other facts and circumstances particular to your case. You should not settle for a certain lawyer just because he or she quoted the lowest fee. The cost to hire a lawyer should be a factor in your decision as to which lawyer to hire, but it should not be the controlling factor.

A criminal defense attorney is your advocate in the courtroom and outside the courtroom with the prosecutor and perhaps even the media. You need someone who will zealously present your case so that you get the best result possible. A criminal defense attorney is loyal to her clients and has their best interests at heart.

A criminal defense attorney focuses on analyzing the evidence in your case and applying those facts to the relevant legal principles to provide you with the best defense for your case.

The primary responsibility of the defense attorney is to get her client the best result possible in the case. She handles every aspect of her client's case: appearing in court for every hearing, filing motions, and preparing the case for trial. A defense attorney should also give the client advice as to how to proceed in the case in order to get the best result.

There is no on "common result" in a criminal case when you have a defense lawyer. However, it is almost guaranteed that you will get a better result when you have an experienced criminal defense lawyer representing you in court than if you try to represent yourself. The rules that apply in court and the laws that apply to criminal cases are very complicated and require a legal expert - a criminal defense lawyer - in order to apply them to your case to get the best result. 

A criminal defense attorney casts doubt by pointing out the weaknesses and holes in the prosecution's case. The prosecution has the burden of proof to convince a jury, if they can, with proof beyond a reasonable doubt of the defendant's guilt before that person can be convicted. A criminal defense attorney will challenge the prosecution's evidence in order to show there is reasonable doubt and the prosecution can't meet their burden of proof. 

It is critical to tell your defense attorney the truth and the whole truth about your case. Your attorney cannot do their best to represent you without knowing the entire truth. Attorney-client privilege means that anything you tell your lawyer that relates to your case must be kept strictly confidential, unless and until you give your lawyer permission to share that information. Therefore, you must be completely honest with your lawyer in order to get the best result. 

We’ve all heard the saying “don’t make a federal case out of it.” That’s because, in order to file a civil case in federal court, there needs to be a federal question involved (like a civil rights claim, or federal civil racketeering, etc.) or the case must involve citizens of different states with damages in excess of $75,000. It is the burden of the plaintiff (the person filing the action) to prove this statutory minimum.

Other cases are filed in the state court system. The state court system is divided into state and superior courts, which have overlapping, although not identical, jurisdiction. Most claims for bodily injury can be brought in either state or superior court and should be filed in the county where at least one defendant resides.

The statute of limitations is the time within which a lawsuit must be filed. In Georgia, the statute of limitations for bodily injury cases is two years. After the case is filed, it must be served promptly on the defendants you are suing. But it is never a good idea to wait until the last minute to start exploring your claim.

For instance, in some circumstances, like when there is a governmental entity involved, there are anti-litem (before litigation) notices that are due within six months or 12 months of the injury, depending on the entity, and your claim may be barred even if you file within the two-year statute of limitations.

Also, in the case of medical malpractice actions in Georgia, the case must be filed with an affidavit of an expert knowledgeable in the same field of medicine as the subject of the case. Without that affidavit, the complaint will be considered insufficient under Georgia law and will be dismissed.

Other examples of statutes of limitations are: there is a one-year statute of limitations for defamation cases (libel and slander); there is a four-year statute of limitations for injuries to personalty, and there are several different statutes of limitations pertaining to actions for breach of contract the shortest being a four-year statute of limitations for breach of an oral contract, and then increasing if the contract is in writing (6 years) or is under seal (20 years). (Different statutes apply to actions for the breach of contract for the sale of goods and to negotiable instruments.)

But there are some notable exceptions to the rule. The statute of limitations can be “tolled” in certain circumstances. For instance, the statute of limitations is tolled in malpractice actions when a defendant intentionally conceals an act of professional negligence from a plaintiff, causing the plaintiff to be deterred from bringing a claim. It can also be tolled in the event of mental incompetence if the one claiming the disability suffered from such unsoundness of mind as to be incapable of managing the ordinary affairs of life.

Also, importantly, the statute of limitations in a birth injury case is two years for the parents’ claim for the injury to the child during his or her minority, but the child has until age 7 to have the claim brought in his or her own behalf.

There are many examples of exceptions to the statute of limitations; however, it is imperative to get a legal opinion about the statute of limitations as soon as possible in any case you plan to bring, since missing that deadline can be fatal to the case.

Cerebral palsy is an often misunderstood term. It applies to a number of different conditions caused by a number of different medical situations, but all of which cause motor deficits due to an interruption in the connection between the brain and the nervous system and musculature of the body. Birth injury is one of those causes. Birth injury occurs when the fetus suffers a lack of sufficient oxygenated blood or blood flow to brain tissue during labor and delivery. Warning signs of impending injury are apparent on the fetal heart rate tracing. Health care providers who heed the warning signs can prevent injury by changing the plan of care to ensure timely delivery, while those who ignore the signs will allow the problem to progress to a point of no return. Birth injury can lead to cerebral palsy, but the injury may be restricted to cognitive impairment that does not include the motor deficits of what we think of as cerebral palsy. Newborn depression, low APGARS, intensive care, and brain radiology studies are the kind of complications often, but not always, associated with a birth injury.

In Georgia, you can be held without bond for 90 days. This is covered by Section 17-7-50 of Georgia Law. After 90 days, the law requires arrested defendants to receive a grand jury hearing.

The time Georgia has to indict on a crime is known as the statute of limitations. Different types of violent crimes have different limitations attached to them. Prosecution for crimes punishable by death or life imprisonment must be commenced within seven years. Prosecutions for other felonies need to be started within four years. 

In the state of Georgia, domestic violence offenses, generally, are crimes such as physical violence, threats, harassment, and stalking committed by one person against another person living in the same home.

There are also federal offenses involving domestic violence. These offenses include interstate travel to commit domestic violence, interstate stalking, and interstate travel to violate a protective order (18 U.S.C. §§ 2261, 2261A, 2262); as well as various firearm offenses concerning domestic violence and violation of a protective order (18 U.S.C. §§ 922(d)(8-9) and 922(g)(8-9)).

Assault and battery are separate offenses. The short answer is simple assault is putting a person in fear of injury and simple battery is actually causing the injury. (For example, if you see someone throw a rock at you, it’s assault. If the rock hits you, it’s battery.)
The maximum punishment for Misdemeanor Assault and Battery is up to 12 months in jail plus fines.
Aggravated Assault and Aggravated Battery are both felonies with a maximum punishment of up to 20 years in prison plus fines. An assault becomes “aggravated” when a someone commits assault with the intent to murder, rape or rob; or s/he uses a deadly weapon (such as a gun or car) against another person. Generally, a “deadly weapon” is any object or device that will likely cause death or serious injury. Aggravated Battery happens when someone disfigures another person or removes a part of his/her body.

There are factors that could increase exposure to imprisonment, like if the alleged victim is a member of a protected class (such as a child or an officer).

Yes. In Georgia, you can commit simple assault (misdemeanor), by attempting to injure someone or by placing someone in fear of being injured. You can commit aggravated assault (felony), when you use some kind of weapon that, when used against someone, can cause death of serous bodily injury (such as pointing a gun at a person or chasing them with your car).

In Georgia, spitting on someone may be considered misdemeanor battery.

Generally, violent crimes in Georgia can include murder, assault, battery, rape/sexual assault, and robbery.

Generally, violent crimes in Georgia can include murder, assault, battery, rape/sexual assault, and robbery. Misdemeanor violent crimes are punishable up to 1 year in jail while felonies are punishable up to 30 years or less depending on the offense. 

According to a national survey by the Pew Research Center in Washington, D.C., robbery was the violent crime most likely to be reported to law enforcement in 2022 (64.0%). It was followed by aggravated assault (49.9%), simple assault (36.8%) and rape/sexual assault (21.4%). These statistics exclude homicide.

In Fulton County, both the Georgia Bureau of Investigation and the Atlanta Police Department monitor annual crime statistics. Fulton County, which encompasses the city of Atlanta, has a crime rate of 32.11 per 1,000 people.
For more detailed reports, see the Georgia Bureau of Investigation's Crime Statistics. 

Federal crimes can only be pardoned by the U.S. president. These are the only types of crimes that the president can pardon. In the same way, state Governors are incapable of pardoning federal crimes and can only pardon state crimes.

Federal crimes are tried by a United States attorney in a United States District Courthouse. The state of Georgia has three federal district courts: the U.S. District Courts for the Northern, Middle, and Southern Districts of Georgia. 

Mail fraud, money laundering, drug trafficking, firearm offenses, and public corruption are all examples of federal crimes.

Offenses where a bank was a victim, such as bank frand, have a 10-year statute of limitations.

Federal crimes are investigated by federal law enforcement agencies like the FBI, DEA, Secret Service, and Postal Inspectors. Sometimes state law enforcement agencies are also involved. 

Drug offenses, firearm offenses, mail fraud, and immigration offenses are commonly prosecuted in federal court.

Felonies are prosecuted in both federal and state court; in either court, all felonies are serious crimes. But sometimes federal crimes have harsher punishments that can make them seem more serious than state crimes.

Mail fraud, large drug trafficking cases, serious firearm offenses, bank fraud, bank robbery, and public corruption cases are examples of crimes that are prosecuted in federal court. 

Drug offenses, firearm crimes, and RICO are examples of crimes that are prosecuted in both state and federal court. 

You can usually tell whether a case is state or fedearl by which agency is conducting the investigation. If the investigating agency is a police department or sheriff's office, then it is likely a state case which is prosecuted by the local district attorney. If the investigating agency is a federal agency like the FBI, DEA, Secret Service, IRS, or Postal Inspector, then it is likely a federal case which will be prosecuted by the U.S. Attorney's Office.

The time you have to appeal your case depends on why the appeal you’re making. Most appeals in Georgia must be filed within 30 days of the conviction. State habeas corpus petitions can be filed within four years, and there are other exceptions. You should speak to a lawyer to verify you are still eligible to appeal.

Unfortunately, like many processes in the criminal justice system, appeals will involve a lot of waiting. How long you need to wait will depend significantly on the type of appeal you’re seeking. Several months to several years or longer is the only answer general enough to apply without knowing the details of your case. 

All lawyers who argue in appellate courts can be considered appellate lawyers. You should work with a lawyer with experience in appellate courts, and with the criminal appeals process. We have several lawyers, including Atlanta federal appeals lawyers, who may be able to offer the expertise you need. 

In Georgia, most appeals in state cases begin with a Motion for New Trial. This is presented to the trial judge. This motion argues that there were legal errors that occurred at the trial which require either a reversal of the conviction or a new trial. The motion may also argue that the evidence was insufficient to convict the accused with proof beyond a reasonable doubt. If that motion is denied, then a Notice of Appeal is filed and the case goes either to the Georgia Court of Appeals or the Supreme Court of Georgia, depending on the charges of conviction. The appellate process in your case may differ slightly depending on the specific facts of your case.

Winning an appeal depends very much on the issues in your case and the knowledge and skill of your appellate attorney, among other things. While criminal appeals generally succeed around 12 percent of the time, an experienced appellate attorney can help get your case heard on the merits where that percentage increases considerably. Garland, Samuel & Loeb has assisted clients with appeals for nearly 100 years, succeeding now for three generations.

We win appeals by demonstrating reversible errors or Constitutional violations that occurred before or during trial. Winning depends on spotting the strongest issues, providing skilled legal writing and argument, and broad experience of case law and appellate procedure. The hallmark of effective appellate advocacy is winnowing out weaker arguments and focusing on those most likely to prevail.

Roughly 30 percent of appeals are lost at the outset due to various procedural issues. Your appeal could get rejected without even being heard if you or your attorney fail to meet crucial deadlines, fail to include specific information in various filings, or neglect the details of other statutory requirements. This is just one reason it is crucial to hire an experienced appellate attorney for your appeal.

Once an appeal is accepted and heard on the merits, the appellate court may still decide in favor of the other party. Likewise, an appellate court may decide that even though certain errors occurred in the trial court, those errors did not prejudice the defendant enough to require a reversal of the conviction. This is called “harmless error.”

Once the appellate court accepts and “dockets” an appeal, the parties must then meet deadlines to file written briefs, detailing their cases. If the court considers the issues important enough, it will also allow oral argument after the briefs are filed. The court will then consider the arguments from both sides and issue its opinion. The full process may take anywhere from a few months to nearly a year.

If the higher court decides in favor of with the appealing party (the “appellant”), it will “reverse” or “vacate” the lower court’s judgment. The appellate court may vacate all or part of a conviction or lower court’s ruling. It will then require the lower court to “redo” the case (or part of the case), this time following the higher court’s new directions.

Importantly, a “win” on an appeal does not in most cases mean your charges have been dropped. Vacating the lower court’s judgment removes the conviction and clears the way for a possible retrial.

If a defendant appeals their conviction and loses the appeal, the conviction is “affirmed,” and the appellant must face the trial court’s sentence. This may involve serving the sentence, or seeking other post-conviction relief, such as a petition for habeas corpus.

Defense attorneys’ mistakes at trial often actually violate a defendant’s Constitutional right to effective assistance of counsel and lead to new trials. Likewise, trial courts commonly make crucial errors in admitting or excluding evidence, allow violations of other Constitutional rights, or provide incorrect jury instructions. A skilled appellate attorney can review your case and spot any of dozens of types of crucial errors that may win on appeal. 

Whether a ground for appeal is strong or weak depends entirely on your individual case and the knowledge and skill of your appellate attorney. Seemingly obscure issues may lead to reversals in some cases, and apparently obvious issues in others may prove harmless or irrelevant to the conviction. It is important for any appeal to have an attorney versed in the hundreds of ground on which previous cases have been reversed: deficient performance of trial counsel, evidentiary errors, Constitutional violations, mis-readings of statutes, and much more. 

How your criminal defense attorney chooses to defend you will depend heavily on the details of your case. For example, your lawyers may challenge the validity of the evidence against you, which involves calling the credibility of witnesses into question.

One way to overcome the charges against you is to have them thrown out. If the charges were not appropriately filed, or there was insufficient evidence to charge you, your lawyer can focus on these issues, and they may argue that police officers or other law enforcement agents abused their rights or powers.

Trafficking is the manufacturing, distribution, delivery, sale, or possession of large amounts of a controlled substance. The police do not need to significantly prove that you intended to deliver, sell, or distribute any of the drugs you possess. Merely possessing amounts over the limits can be considered enough to charge you with trafficking. 

In every criminal case, the prosecution has the burden of proof to provide evidence that demonstrate's the accused's guilt beyond a reasonable doubt. That burden never shifts to the defense.

The sentences for drug trafficking can vary widely. There are some drug trafficking offenses that carry mandatory minimum penalties (starting at 5 years and going up from there). Some drug trafficking offenses can be punished by a sentence of life, depending on the defendant's prior criminal history and the facts and circumstances of the drug trafficking offense.

Some drug trafficking charges do not have a mandatory minimum; some can have minimums that are 5 years, 10 years, or more. It depends on the drug type, the drug weight, and the criminal history of the accused.

It depends on whether the case is in state court or federal court; it also depends on the drug type and drug weight. For example, in Georgia, if someone sells or intends to sell more than 28 grams of cocaine, that is drug trafficking.

Drug trafficking cases commonly have undercover agents or confidential informants who are used to prove the government's case. Confidential informants are usually people who have been arrested and choose to cooperate with the government in order to get a better result for their own charges. There may also be surveillance audio or video of alleged drug deals, or wiretap evidence that is used as evidence in drug trafficking cases. 

Drug dealing and drug trafficking can be interchangeable terms. "Drug trafficking" is a legal term that depends on the drug type and drug weight that are alleged to be at issue in the case.

Drug trafficking is a more severe charge than mere drug distribution. Drug distribution is sometimes referred to as "possession with intent to distribute." Drug trafficking charges usually carry more severe penalties than drug distribution charges.

The potential sentence for intent to distribute in Georgia depends on the drug type and drug weight. For example, possession of marijuana with intent to distribute carries a potential sentence of 1-10 years (depending on the defendant's prior criminal history.)

You can get probation for a felony drug charge in Georgia. Georgia also has a specific statute that is sometimes called a "drug first offender" which applies only to certain drug cases. If you qualified for that deferred adjudication, then you can avoid having a conviction on your record.

Your prior criminal history is very important in determining the potential outcome in your case. Generally, first time offenders are treated more leniently than those who have prior criminal offenses on their record.

Many sexual offenses have a seven-year statute of limitations in Georgia. This limit applies to many of the most common offenses, including statutory rape and aggravated sexual battery. In most cases, the time limit begins when the offense is committed. However, for many crimes against children, the limit does not start until the crime is discovered.

Rape and sexual assault are often seen as equivalent by the general public, but they mean different things to the law. Rape is covered by Georgia law O.C.G.A. § 16-6-1. This law makes it a felony to engage in forcible carnal knowledge.

There are some sex crimes that require the perpetrator to have some kind of authority over the victim when engaging in sexual contact with them. Professionals in positions of authority and trust, such as law enforcement officers, teachers, and psychologists, are examples of positions that could be abused for sexual assault.

Georgia imposes stringent mandatory minimum sentences for serious sex crimes, with limited discretion for judges to adjust sentencing, underscoring the state's strict approach to punishing these offenses

1. Rape
• Mandatory Minimum Sentence: 25 years in prison.
• Governing Code Sections: O.C.G.A. § 16-6-1 and § 17-10-6.1.
• Details: For individuals convicted of rape, the minimum sentence is 25 years, with potential for life imprisonment or even the death penalty in extreme cases. This sentence cannot be reduced, suspended, or deferred.

2. Aggravated Child Molestation
• Mandatory Minimum Sentence: 25 years in prison.
• Governing Code Sections: O.C.G.A. § 16-6-4(c) and § 17-10-6.1.
• Details: For aggravated child molestation involving victims under 16, a mandatory minimum of 25 years applies. If the offense results in physical injury to the child, parole eligibility may be severely limited or eliminated.

3. Child Molestation
• Mandatory Minimum Sentence: 5 years for a first offense, 10 years for a second or subsequent offense.
• Governing Code Sections: O.C.G.A. § 16-6-4 and § 17-10-6.2.
• Details: A first conviction for child molestation requires a minimum of 5 years in prison, while a second conviction carries a minimum of 10 years. Sentences cannot be reduced or suspended under these statutes.

4. Aggravated Sexual Battery
• Mandatory Minimum Sentence: 25 years in prison.
• Governing Code Sections: O.C.G.A. § 16-6-22.2 and § 17-10-6.1.
• Details: Convictions for aggravated sexual battery require a minimum of 25 years without eligibility for parole, highlighting the serious nature of this offense.

5. Sexual Battery
• Mandatory Minimum Sentence: 1 year in prison for a second conviction of sexual battery. No mandatory minimum for a first offense of sexual battery.
• Governing Code Sections: O.C.G.A. § 16-6-22.1 and § 17-10-6.1.
• Details: Sexual battery is a misdemeanor if the victim is 16 or older and there are not prior convictions for sexual battery. Otherwise it is a felony that carries 1 to 5 years.

6. Statutory Rape
• Mandatory Minimum Sentence: 1 year in prison for offenders under 21. 10 years in prison for offenders 21 and over.
• Governing Code Sections: O.C.G.A. § 16-6-3(b) and § 17-10-6.1.
• Details: If the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor.

7. Possession of Child Pornography
• Mandatory Minimum Sentence: 5 years.
• Governing Code Sections: O.C.G.A. § 16-12-100(b)(8) and § 17-10-6.1.
• Details: Each image or video can carry up to 20 years in prison, with potential consecutive sentences for multiple counts, resulting in significant cumulative prison time.

Sex Offender Registration for most sex crimes
• Mandatory Requirement: Most sex crimes require lifetime registration as sex offender.
• Governing Code Sections: O.C.G.A. § 42-1-12.
• Details: Registration often has lifetime implications on residency, employment, and other civil liberties.

In Georgia, O.C.G.A. § 42-1-15 outlines specific restrictions on where registered sex offenders can live, and work. Here are the primary restrictions set forth under this statute:

1. Residence Restrictions

•  Prohibited Locations: Registered sex offenders are prohibited from residing within 1,000 feet of certain places where children are commonly present. Specifically, they cannot live within:
•  A child care facility (defined as a licensed daycare or preschool)
•  A school (public or private K-12 institutions)
• A church (places of worship, such as temples, synagogues, or churches)
•  Areas designated for the use and recreation of children, which includes public parks, playgrounds, and recreation facilities
• Exception for Pre-existing Residences: If an offender established a residence prior to July 1, 2008 or a restricted facility moves within 1,000 feet an offender established a residence (e.g., a new school or daycare is opened near the offender’s home), the offender may continue living there.

2. Employment Restrictions

• Prohibited Locations for Employment: Registered sex offenders cannot work or volunteer within 1,000 feet of:
• A child care facility
• A school
• A church
• Areas designated for the use and recreation of children (Only applies to offenders classified as to Sexually dangerous predators by the Sexual Offender Risk Review Board)
• Exception for Employment Prior to Registration: If an offender was employed at a location before being required to register as a sex offender or before a restricted facility was established within 1,000 feet of their employment, the offender may continue working there.

3. Measuring Distance: The 1,000-foot distance is measured in a straight line from the edge of the offender's property to the edge of the restricted property's property line.

4. Exemptions

• Residence or employment established prior to July 1, 2008: If an offender established a residence or employment prior to July 1, 2008 the offender does not have to move or change work locations even if a restricted location is within 1,000 feet. 

• Residence or employment established prior a restricted location moves within 1,000 feet: If an offender established a residence or employment and then a restricted location moved within 1,000 feet, the offender does not have to move or change work locations.
• Incapacitation: Individuals with severe disabilities or those who are completely incapacitated may be exempt from certain restrictions based on their condition.

Violating these restrictions can lead to felony charges and additional penalties, including potential prison time.

Defending against a sex crimes charge requires a strategic and meticulous approach, as these cases often hinge on the alleged victim's testimony and may lack physical evidence. Given the potential for severe consequences, a skilled attorney can build a powerful defense by focusing on several essential areas.

1. Challenging Allegation Reliability and Accuracy
To begin, an attorney must scrutinize the circumstances surrounding the allegations, seeking any factors that could impact their credibility. This involves evaluating the relationship between the alleged victim and the defendant, any past conflicts, and potential biases or motivations that could influence the charges. Family dynamics, workplace or social conflicts, and other relationship factors may shed light on the context behind the allegations, allowing the defense to provide a fuller, clearer picture of events.

2. Developing a Strong Evidence-Based Defense
A critical part of defending against sex crime allegations is gathering evidence that directly contradicts the alleged victim's account. Establishing an alibi or using records, like GPS data, surveillance footage, or witness testimony, to show that the defendant could not have been involved in the alleged incident can undermine the prosecution’s case and support the defendant’s credibility.

3. Leveraging Expert Testimony
Expert analysis plays a significant role in challenging the reliability of the alleged victim's account. Forensic experts in psychology, memory science, and forensic interview techniques can reveal the limitations of human memory and the effects of suggestion. These experts may highlight inconsistencies in the alleged victim's statements, raising questions about accuracy and potential external influence, which can strengthen the defense.

4. Demonstrating Defendant Character and History
Character evidence is also crucial. A defense team may present the defendant’s history, conduct, and reputation to illustrate that the allegations are inconsistent with their character. Showing a lack of prior misconduct or presenting positive aspects of the defendant’s character can support the argument that these allegations do not align with who the defendant is as a person.

By strategically addressing these elements and presenting a comprehensive, evidence-based defense, a dedicated attorney can challenge the prosecution’s case and advocate for justice. For more information on defending against sex crimes charges, please visit our Sex Crimes page.

Some felonies have mandatory minimum sentences (for example, murder = life in prison; rape = 25 years in prison.) Other felonies have no mandatory minimum, so the judge can impose a sentence of probation, or 20 years. The sentence will reflect the seriousness of the offense, the background of the defendant, and other factors that might suggest that a longer, or sentence is appropriate.

For most felonies (those that do not require a mandatory minimum, such as rape, armed robbery, and murder), the minimum is one year of probation.

For most felonies, but not all, the statute of limitations is four years, but there are exceptions that can extend that time limit.

Yes. The decision to “drop” a felony, or dismiss the charge is up to the prosecutor, though the judge, for good cause, can also dismiss a charge.

The short answer is “forever” but there are exceptions, for example, if the sentence is imposed pursuant to the first offender act, the felony is removed from the defendant’s record when the period of probation ends.

Yes, unless the felony is for an offense, such as rape, armed robbery, murder, aggravated child molestation, which require a mandatory minimum sentence with very few exceptions.

A judge has the authority to send a first-time felony offender to jail, though for “lower level” felonies, it is less likely to receive jail time.

The term “stay open” is not a legal term. But if the defendant has been indicted, the defendant can insist on a speedy trial (which, depending on the county, would require a trial within 6 – 8 months). Otherwise, the crowded dockets in some counties may result in delays for a couple years before a trial is held.

Yes, unless the judge orders otherwise. The defendant must make sure that if there is a search of the house, the police will readily see that the gun is owned and possessed by somebody other than the defendant.

Yes. The prosecutor can always reduce the charges as part of a plea agreement, or because the facts of the case do not support a felony disposition.

There are felonies that have mandatory minimum sentences, such as murder, armed robbery, rape, aggravated child molestation.

Any crime for which the sentence can be higher than 12 months. If the maximum sentence is 12 months or less, the crime is a misdemeanor.

It is hard to say, but drug offenses are prosecuted all throughout the metro Atlanta area.

Unless the defendant’s civil rights are restored, a felon cannot possess a gun. A felon cannot vote while on probation (once someone's case is totally over, including any time on probation, they are eligible to vote again). There are various professions that would prohibit a felon from getting licensed (with exceptions). And for some offenses, the sexual registry would limit what a defendant can do (or where the defendant can live or work).

Fraud charges, bribery, insider trading, and public corruption are examples of white collar crimes.

The term "white collar" comes from the types of people who were historically accused of these types of crimes - they tended to be people who worked "white collar" jobs (executives, sales people, etc.) as opposed to people who worked "blue collar" jobs.

Fraud charges encompass a wide variety of allegedly criminal behavior and are often prosecuted. Fraud charges can include wire fraud, mail fraud, bank fraud, and health care fraud, just by way of example.

Many times, the defense in a white-collar case focuses on the accused's intent or state of mind. Often the defense does not dispute the facts, but does dispute the accused's intention when undertaking the allegedly criminal action. For example, if someone is charged with bank fraud because they made a misrepresentation on a loan application, the ultimate question is whether that misrepresentation was an unintentional mistake (and therefore not a crime), or whether it was a knowing and voluntary misrepresentation (in which case it would be a crime).

Evidence in white collar cases tends to consist of emails, text messages, bank records, and testimony from other individuals who participated in the conduct. Emails and text messages play an increasingly important role in criminal trials as our digital devices become more and more capable or storing information for long periods of time. Often, the government is able to access emails and text messages that are years old and use those as evidence in its case-in-chief.

The government always has the burden of proof to prove guilt beyond a reasonable doubt. In white collar crimes, they will focus their evidence on documents and testimony that shows the accused's state of mind at the time the allegedly criminal conduct was committed.

Many people think that white collar criminals get off with a "slap on the wrist" or get sentenced to serve their time at "Club Fed." This is not true. More and more, white collar defendants are sentenced to hefty sentences - often decades in prison - and ordered to pay millions, if not billions, in restitution.

There is no "average" sentence for a white collar crime. The sentece can vary widely depending on the jurisdiction, the amount of money involved in the offense, the number of victims, and other factors like the defendant's criminal history. It is vital to have an experienced attorney, like those at Garland, Samuel, & Loeb, who can evaluate all of these factors and give you the best advice as to how to handle your particular matter.

The answer to this question varies widely depending on factors like the jurisdiction of the case and the nature of the crime. By way of example, in the Northern District of Georgia in 2023, over 70% of defendants who were sentenced in a fraud case were sentenced to serve prison time.

You can get a job after a white-collar crime, though having a criminal conviction on your record can make it much harder to get employment after a conviction.

Yes, Georgia has a "Romeo and Juliet" law. It applies if these 2 factors are met: 1. The alleged victim is between 14-16 years old. 2. The alleged offender is either 18 or no more than 4 years older than the alleged victim. In this limited exception, the offender could face a misdemeanor charge rather than a felony charge.

In Georgia, statutory rape is a felony and involves sexual intercourse with a person under the age 16. (There are limited exceptions, such as marriage or a “Romeo and Juliet” exception.)

Generally, any person can report suspected statutory rape, and, in some circumstances, certain classes of people have a duty to report suspected conduct (teachers, therapists). However, it is the state or federal prosecutor who will file formal charges against a suspected defendant.

It depends on how the offense is charged. For an offense of statutory rape committed between July 1, 1992 to June 30, 2012, the statute of limitations is 7 years and the 7 years does not begin until the victim turns 16. After July 1, 2012, if the victim is under 16, there is no statute of limitations.

This answer varies greatly depending on the case and the jurisdiction. Some cases move quickly—particularly where a defendant has asserted their right to a speedy trial—while other cases can take years.

Georgia does not have an “aggravated” statutory rape law.

A statutory rape conviction will result in 5 to 20 years imprisonment, plus fines, and requires registration on the Sex Offender Registry.

The general aim of the statute is to protect minors from adult conduct, regardless of whether the adult knew they were engaged with a minor. While it is not a legal defense, the facts and circumstances involved in your case are important and should be discussed with your attorney. This information may provide vital mitigation evidence and could result in a better resolution of your case.

Yes. Although there may be mitigating evidence that is important for your lawyer to know and that may result in a more successful resolution of your case.

Depending on the content of the messages, yes, sexting with a minor may be both a state and a federal crime. Georgia has preexisting laws at the state and federal levels against such conduct such as sexual exploitation of a minor and child pornography.

This is a registry that you will have to register up for if you are convicted of a sex crime in the state of Georgia. You will have to report your movements to the state for as long as you live there, and you will be banned from living or visiting many typical spaces in your community.

It depends on whether you are prohibited from carrying a gun for some reason. Anyone with a felony conviction cannot legally possess a gun. If you are on "first offender probation" you cannot possess a gun. If you have been convicted of a family violence offense (even a misdemeanor) or are subject to a protective order, then you cannot legally possess a gun.

Georgia used to require a permit in order to carry a gun in a concealed manner. That law was changed in 2022. Now, Georgia law provides: "Any person who is not prohibited by law from possessing a handgun or long gun may have or carry on his or her person a weapon or long gun on his or her property or inside his or her home, motor vehicle, or place of business."

Yes, as long as you are a "lawful weapons carrier." A lawful weapons carrier is: "any person who is licensed or eligible for a license pursuant to Code Section 16-11-129 and who is not otherwise prohibited by law from possessing a weapon or long gun, any resident of any other state who would otherwise be eligible to obtain a license pursuant to such Code section but for the residency requirement, and any person licensed to carry a weapon in any other state."

Yes, you can carry a loaded gun in Georgia, presuming that you are legally authorized to possess a firearm.

The sentence depends on the person's criminal history. Generally, someone who is convicted of felon in possession of a firearm will be sentenced somewhere between one and ten years. That range can change depending on whether it's the person's first conviction for such a crime, and whether their prior conviction was for a forcible felony.

No. Georgia law does not distinguish between the types of felons who are prohibited from carrying a weapon.

Defending against a gun possession charge will depend on the circumstances of your case. You need an experienced lawyer who can analyze your case to see if there were any legal errors with the search of your property, or whether there is a defense as to whether or not you actually possessed the firearm.

The sentence depends on the person's criminal history. Generally, someone who is convicted of felon in possession of a firearm will be sentenced somewhere between one and ten years. That range can change depending on whether it's the person's first conviction for such a crime, and whether their prior conviction was for a forcible felony.

Once someone has been convicted of a felony, the only way their gun rights can be restored is by obtaining a pardon from the Georgia Board of Pardons and Parole. The cost to submit such an application can vary.

A lawyer is vital to defending you against a firearms offense case. A lawyer can analyze the facts of your case to see if there were any legal problems with the search of your property, or to determine whether you have a valid defense as to whether you actually possessed the firearm.

The amount of jail or prison time you may be facing depends on the charge you are facing. For some gun-related felony offenses, you may be facing 20 years or more in prison due to the combination of multiple charges. Charges can be combined in many ways, so you’ll need to discuss your case with a lawyer to understand the time you face.

Federal law forbids anyone who is convicted of a family violence or domestic violence crime from possessing a firearm. Georgia misdemeanors and felony crimes can both count as these types of charges.

Determining the best defense tactic for your case will depend heavily on the circumstances of your case. You need an experienced lawyer to analyze the circumstances of your case to look for legal defenses (such as self-defense or defense of others) or factual defenses (like you did not do what the prosecution accuses you of doing).

One common defense in murder cases is self-defense. A variation on this is defense of others or defense of property. Georgia law allows someone to use deadly force to defend themselves, others, or their property when they believe the attacker is likely to cause death or great bodily harm to them. Or if you believe someone is entering your house to commit a forcible felony.

"Homicide" is not a legal term in Georgia. In Georgia, we use the term murder to mean an intentional killing of another human being. We also have felony murder, which is occurs when someone commits a felony and in the process of committing that felony causes the death of another person, even if unintentional. "Homicide" is a term that is used by medical examiners and it means a death that occurs not by accident or natural causes.

In Georgia, someone cannot be prosecuted for murder if they were lawfully acting in self-defense, defense of others, or defense of property. This is a decision that the judge can make prior to trial

Both Malice Murder and Felony Murder have the same mandatory minimum sentence which is Life with the Possibility of Parole. A person with a life sentence cannot be considered for parole until after they have served 30 years of their sentence.

We do not really have degrees of murder in Georgia. We have Malice Murder and Felony Murder. There is a charge called "Second Degree Murder" but it applies only in instances where someone commits the offense of cruelty to children in the second degree and causes the death of another person, irrespective of malice.

Malice murder means an intentional killing of another human being that is done with "malice aforethought." "Malice" means an unlawful intent to kill without justification, excuse, or mitigation. It does not necessarily mean ill will or hatred.

In Georgia, Malice Murder and Felony Murder are both eligible to be punished by death, so they are both capital offenses. Second Degree Murder can be punished by 10 to 30 years.

Attempted murder happens when someone intends to commit murder and performs any act which constitutes a substantial step towards the commission of that murder. For example, buying a gun with the intent to murder someone with that gun would be attempted murder.

Georgia has both Voluntary Manslaughter and Involuntary Manslaughter. Involuntary Manslaughter is punishable by a sentence of 1-10 years. Voluntary Manslaughter is punishable by a sentence of 1-20 years.

The standard of proof for every crime is the same: the prosecution must prove someone's guilt beyond a reasonable doubt. The elements of Voluntary Manslaughter that the prosecution must prove are that someone caused the death of another but acted solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person (without any kind of "cooling off" period.)

Manslaughter is a serious crime, but it is separate from murder. Georgia recognizes voluntary manslaughter and involuntary manslaughter.

Voluntary manslaughter occurs when a person intentionally kills another person while influenced by sudden and violent passions. There will need to be significant evidence that the passion was provoked by something beyond a typical person’s ability to deal with responsibly. If you are found guilty, you can face up to 20 years in prison.

Involuntary manslaughter occurs when a person kills another person unintentionally. In order to be charged with manslaughter rather than a less serious charge, there must be evidence that your behavior was illegal or reckless at the time.

A writ of habeas corpus is a legal order by a court to restore liberty to individuals unlawfully restrained in any way. “Habeas corpus” literally means, “You shall have the body.” It requires a civil legal action producing someone from jail, prison, or even probation for the purpose of challenging the legality of their restraint.

Both state and federal courts will hear habeas corpus cases. To file a habeas action in a federal court, however, the individual must first exhaust all state-level remedies, include state habeas actions. Attorneys experienced in habeas corpus cases specialize in the protection of your constitutional right to liberty and can help you navigate the complicated terrain of habeas corpus law.

Individuals incarcerated in prison often file a petition for a writ of habeas corpus to challenge unconstitutional aspects of their trials or appeals that were not properly addressed on appeal. There are many, many constitutional violations that could have occurred at the trial court or at the appeals court level. Even a single such violation could prove sufficient for a court to order the individual’s freedom from prison, or to terminate their probation.

The right to appeal refers to the right to have a higher court review your case for errors. Georgia law provides for appeals from various judgments and rulings by lower courts to be reviewed by the Georgia Court of Appeals or the Supreme Court of Georgia. Appeals may follow by right directly from the judgment in your case, or may be allowed earlier with an “interlocutory” appeal depending on the issue. A knowledgeable attorney can spot many potential errors in your case and maximize your chances of winning on appeal.

The cost for an appeal case in Georgia can vary widely depending on several factors: the length of trial, the age of your conviction, the nature of the legal challenges, and the number of charges of conviction. You should contact our office for a free consultation so we can better understand the unique facts and circumstances of your case in order to discuss a fee for representation.

While criminal appeals generally succeed only around 12 percent of the time, an experienced appellate attorney can help get your case heard on the merits where that percentage increases considerably. Garland, Samuel & Loeb has assisted clients with appeals for nearly 100 years, succeeding now for three generations.

One of the most famous habeas corpus cases is Gideon v. Wainwright, decided by the United States Supreme Court in 1963. A Florida court tried Clarence Earl Gideon, an indigent person who did not have an attorney, and found him guilty of breaking and entering a local establishment. Gideon had requested the court appoint him an attorney because he could not afford one, but Florida law did not require it at the time. Gideon’s case served to establish for the first time that state courts must honor the constitutional right to counsel and provide appointed counsel for indigent defendants in criminal cases.

Not every habeas case has the same national scope, but we consider each one as just as important for our client.

Habeas corpus actions are initiated at the level of a trial court (Superior Court). Therefore, if the trial court grants your petition for a writ of habeas corpus, the opposing party (usually a warden) will have the right to appeal that decision to the Supreme Court of Georgia. If the State appeals, the outcome will depend on the Supreme Court’s decision.

If the Supreme Court affirms the trial court’s grant of a writ of habeas corpus, the trial court will likely order the individual’s release. The case will then proceed much like a case overturned on appeal: the State may decide to retry the case.

A judge could grant a writ of habeas corpus for literally scores of reasons because there are so many possible ways to violate the Constitution. Defense attorneys’ mistakes at trial or on appeal often actually violate a defendant’s Constitutional right to effective assistance of counsel and lead to new trials. Likewise, trial courts may make any of several errors that violate due process or the right to a fair trial. A skilled appellate attorney can review your case and spot any of dozens of types of crucial errors that may provide grounds for habeas relief.

All constitutional rights affected by the proceedings which resulted in your conviction are fair game for a habeas actions. Likewise, a court may grant a habeas action based on newly discovered evidence that could not have been known at the time of trial. More rarely, habeas relief is available where trial proceedings involved a “miscarriage of justice” or other exceptional circumstances.

You may have grounds for appeal without even knowing it. There are many grounds that can be used by a talented legal team. Some of the most common examples include:

• Improper admission of evidence

• Improper exclusion of evidence

• Conviction without sufficient evidence

• Ineffective assistance of counsel

• Misconduct by the prosecutor

• Misconduct by the jury

• Misconduct or abuse of discretion by the judge

This is not a complete list of the reasons an appeal could be filed. If you believe any behavior during your trial prejudiced the proceedings against you, you should contact our lawyer to discuss the details.

If your appeal fails, you should strongly consider filing a petition for a “writ of certiorari” where you ask the Supreme Court of Georgia (for State cases) or the United States Supreme Court (for Federal cases) to take the case. The Supreme Court isn’t required to review this petition in most cases, though they may choose to do so. Should you choose not to do that, or if that fails you should explore filing a Writ of Habeas Corpus which is often the last opportunity for someone to seek relief against a criminal conviction.

There are several different ways in which the offense of mortgage fraud can be committed, but the most common is providing inaccurate information to the lender about the borrower’s assets, income, employment, or the appraisal on the property. These types of misrepresentations are “material” to the lender’s decision to loan the money, so those types of misrepresentations, unless trivial, will support a mortgage fraud prosecution.

FHA mortgage fraud is the same as other types of mortgage fraud, except the lender (the bank) may have used the FHA process to further support the loan (that is, the bank will look to the federal government to back up the loan in case the borrower defaults)

If the person is convicted of mortgage fraud, the sentence (in federal court) will often depend on several factors: (1) what was the amount of the loan; (2) has the defendant defaulted on the loan, or is the loan current; (3) does the defendant have a criminal record. the same considerations will usually apply in state cases, though with less formality and certainty.

There was a time after the financial crisis that began in 2008 that there were many mortgage fraud prosecutions because of the number of defaulted loans and the bank practices (and brokers’ practices) that were very lax (in part because the lenders were selling the loans and did not monitor the borrower’s background or applications with sufficient care). Because of the substantial losses that resulted from these lax practices, the lenders are now far more careful about the loans that are made and consequently, fewer fraudulent loans occur and fewer criminal prosecutions.

Competent counsel will fight every aspect of the prosecution: the defense may insist that the mortgage application was accurate, or that the broker informed the borrower that insistence on meticulous accuracy was not necessary; or that any error in the application did not affect the lender’s decision to fund the loan. the amount of “loss” suffered by the lender is also frequently disputed.

Often mortgage fraud is committed by brokers, as opposed to the actual lender. Other than that, most mortgage fraud prosecutions involve borrowers.

The FBI is often the law enforcement agency that investigates mortgage fraud, but it is also possible that the IRS criminal division, or Secret Service will also investigate these types of financial crimes.

The Georgia Mortgage Fraud Act is codified at OCGA §16-8-100. It primarily criminalizes deliberate misrepresentation or fraud in mortgage lending processes. Key prohibited acts include:

Making deliberate misstatements, misrepresentations, or omissions during the mortgage lending process with the intent to defraud
Receiving proceeds or any other funds in connection with a mortgage fraud scheme
Filing or causing to be filed with the official registrar of deeds any document that contains deliberate misstatements, misrepresentations, or omissions
Participating in a pattern of residential mortgage fraud (defined as involving two or more properties)

The Act defines "mortgage lending process" broadly to include:

The solicitation, application, origination
The making of a mortgage loan
The underwriting, signing, closing and funding of a mortgage loan
The recording and releasing of liens
The servicing of a mortgage loan

Violations can result in serious criminal penalties, including:

Imprisonment for 1-10 years
Fines
Restitution to victims

The GBI is the principal investigative agency in Georgia.

You may be found to be engaging in a pattern of residential mortgage fraud if you make

“One or more misstatements, misrepresentations, or omissions during the mortgage lending process involving two or more residential properties with the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics.”

"Mortgage shotgunning" or "mortgage slamming" occurs when a person takes out multiple loans secured by the same home or piece of property. The object of this fraud is often to gain loans that exceed the property's value by a significant amount.