In 2012, Georgia’s forgery statutes got an overhaul. There are now multiple degrees of forgery and punishment is doled out more-or-less based on the degree of the offense. Understanding the difference between them can be a little difficult. Hopefully, this article will shed some light on the subject.
O.C.G.A. §16-9-1(b) states that forgery in the first degree occurs “when with the intent to defraud” a person “knowingly makes, alters, or possesses any writing, other than a check, in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.”
O.C.G.A. §16-9-1(c) (second degree forgery) reads exactly the same except for the omission of the words “and utters or delivers such writing.”
First, there must be a “writing” of some kind. This section of the statute specifically excludes “checks”, but it could be any other “writing”. It could be a will, a property deed, a car title and many others.
Secondly, the person charged must “know” they’re in possession of a forged instrument. As such, lack of knowledge is a defense if the person charged happens to have received the forged instrument from someone else believing it to be authentic.
Next, you must have the intent to defraud. This can be manifested in a number of ways, but case law never seems to point to anything done by the accused that does not also speak to the other elements of the offense. But let’s say the accused gives the forged instrument to someone else in exchange for nothing. If they get nothing in return, I would argue there is no intent to defraud.
Finally, first degree forgery requires that the writing be “uttered” or “delivered”. Second degree forgery does not. So, what’s the difference? What does this mean? Going back to the example of the forged title to a car, should the possessor of that title attempted to use it to register the vehicle at the DMV, that would be an example of “uttering” or “delivering” the forged instrument. Mere possession of the forged title would be second degree forgery.
Punishment for the two offenses is different as well. According to O.C.G.A. §16-9-2(a) states that forgery in the first degree is a felony offense and conviction shall be punished by imprisonment for not less than one nor more than 15 years. Whereas O.C.G.A. §16-9-2(b) also makes forgery in the second degree a felony. But conviction is punishable by imprisonment for one to five years.
For forgery in the third degree O.C.G.A. §16-9-1(d) states that “with the intent to defraud” you must “knowingly” do one of the following:
“(1) Makes, alters, possesses, utters, or delivers any check written in the amount of $1,500.00 or more in a fictitious name or in such manner that the check as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority; or (2) Possesses ten or more checks written without a specified amount in a fictitious name or in such manner that the checks as made or altered purport to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority.”
For forgery in the fourth degree, O.C.G.A. §16-9-1(e) states that “with the intent to defraud” you must “knowingly” commit all the elements of forgery in the third degree, with either a dollar amount less than $1,500 or less than 10 total checks.
In layman’s terms, if you have a check, made out to you, by a fictitious person or by a real person who didn’t actually make the check out to you, for an amount more than $1,500, that’s forgery in the third degree.
Note, that there is no difference between trying to pass the check vs. mere possession of the check. If you’re caught with a forged check, it’s forgery in the third degree.
Also, if you happen to have 10 or more forged checks in your possession, without an amount specified, that’s also forgery in the third degree.
For forgery in the fourth degree, the statute is satisfied if you have 1 check for $1,499 or 9 checks without a dollar figure. Again, possession alone is sufficient. The accused need not have tried to “pass” the checks.