Georgia Code Title 17. Criminal Procedure § 17-10-6.2

(a) As used in this Code section, the term “sexual offense” means:

(1) Aggravated assault with the intent to rape, in violation of Code Section 16-5-21 ;

(2) False imprisonment, in violation of Code Section 16-5-41 , if the victim is not the child of the defendant and the victim is less than 14 years of age;

(3) Sodomy, in violation of Code Section 16-6-2 , unless subject to the provisions of subsection (d) of Code Section 16-6-2 ;

(4) Statutory rape, in violation of Code Section 16-6-3 , if the person convicted of the crime is 21 years of age or older;

(5) Child molestation, in violation of subsection (a) of Code Section 16-6-4 , unless subject to the provisions of paragraph (2) of subsection (b) of Code Section 16-6-4 ;

(6) Enticing a child for indecent purposes, in violation of Code Section 16-6-5 , unless subject to the provisions of subsection (c) of Code Section 16-6-5 ;

(7) Improper sexual contact by employee or agent, as provided in Code Section 16-6-5.1 ;

(8) Incest, in violation of Code Section 16-6-22 ;

(9) A second or subsequent conviction for sexual battery, in violation of Code Section 16-6-22.1 ;  or

(10) Sexual exploitation of children, in violation of Code Section 16-12-100 , unless subject to the provisions of paragraph (2) or (3) of subsection (f) of Code Section 16-12-100 .

(b) Except as provided in subsection (c) of this Code section, and notwithstanding any other provisions of law to the contrary, any person convicted of a sexual offense shall be sentenced to a split sentence which shall include the minimum term of imprisonment specified in the Code section applicable to such sexual offense.  No portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the court.  Any such sentence shall include, in addition to the mandatory term of imprisonment, an additional probated sentence of at least one year;  provided, however, that when a court imposes consecutive sentences for sexual offenses, the requirement that the court impose a probated sentence of at least one year shall only apply to the final consecutive sentence imposed.  No person convicted of a sexual offense shall be sentenced as a first offender pursuant to Article 3 of Chapter 8 of Title 42 or any other provision of Georgia law relating to the sentencing of first offenders.

(c)(1) In the court's discretion, the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, when the prosecuting attorney and the defendant have agreed to a sentence that is below such mandatory minimum or provided that:

(A) The defendant has no prior conviction of an offense prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16, nor a prior conviction for any offense under federal law or the laws of another state or territory of the United States which consists of the same or similar elements of offenses prohibited by Chapter 6 of Title 16 or Part 2 of Article 3 of Chapter 12 of Title 16;

(B) The defendant did not use a deadly weapon or any object, device, or instrument which when used offensively against a person would be likely to or actually did result in serious bodily injury during the commission of the offense;

(C) The court has not found evidence of a relevant similar transaction;

(D) The victim did not suffer any intentional physical harm during the commission of the offense;

(E) The offense did not involve the transportation of the victim;  and

(F) The victim was not physically restrained during the commission of the offense.

(2) If the court deviates in sentencing pursuant to this subsection, the judge shall issue a written order setting forth the judge's reasons.  Any such order shall be appealable by the defendant pursuant to Code Section 5-6-34 , or by the State of Georgia pursuant to Code Section 5-7-1 , unless the sentence imposed was pursuant to an agreement by the prosecuting attorney and the defendant.

(d) If the court imposes a probated sentence, the defendant shall submit to review by the Sexual Offender Registration Review Board for purposes of risk assessment classification within ten days of being sentenced and shall otherwise comply with Article 2 of Chapter 1 of Title 42.


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