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Unofficial Opinion 96-14

Unofficial Opinion 96-14

August 1, 1996
To: 

Superior Court Judge
Northern Judicial Circuit

Re: 

In imposing criminal drug surcharges pursuant to O.C.G.A. § 15-21-100(a), only court costs relating to an offense prohibited by O.C.G.A. § 16-13-30, 16-13-30.1, or 16-13-31 should be included in determining the amount of the original fine.

You have requested my unofficial opinion with respect to the inclusion of court costs in the calculation of criminal drug surcharges pursuant to O.C.G.A. § 15-21-100(a). Official Code of Georgia Annotated § 15-21-100(a) provides that "[i]n every case in which any court shall impose a fine, which shall be construed to include costs, for any offense prohibited by Code Section 16-13-30, 16-13-30.1, or 16-13-31 . . . there shall be imposed as an additional penalty a sum equal to 50 percent of the original fine."

You have inquired as to whether the fine upon which the fifty percent (50%) surcharge is imposed should include court costs. Official Code of Georgia Annotated § 15-21-100(a) states that an additional penalty shall be imposed in every criminal drug case in which any fine has been imposed. Moreover, the statute specifically provides that a fine "shall be construed to include costs." O.C.G.A. § 15-21-100(a). Of course, "shall" is a word of command. Cole v. Frostgate Warehouses, Inc., 150 Ga. App. 320, rev'd on other grounds, 244 Ga. 782 (1979). Although the Code Section assesses the surcharge based on the "original fine," a reading of the entire statute shows that this term refers to the first part of the sentence containing the language "to include costs."

Therefore, it is my conclusion that in imposing criminal drug surcharges pursuant to O.C.G.A. § 15-21-100(a), all court costs relating to offenses prohibited by O.C.G.A. § 16-13-30, 16-13-30.1, or 16-13-31 should be included in determining the amount of the original fine. It does not appear, however, that the surcharge should be assessed under this Code Section for counts unrelated to the specified drug offenses.

Prepared by:

KYLE A. PEARSON
Assistant Attorney General