I respectfully dissent because, contrary to the ruling in Division 1, the court’s charge as to the authority responsible for the defendant’s destiny under the possible verdicts did not constitute reversible error in this case. Appellant complains that the portion of the court’s charge in this respect, which is quoted in the majority opinion, is an incorrect and incomplete statement of the law and is ambiguous and misleading.
Defendant had requested a charge on OCGA § 17-7-131 (b) (3) (A), which states the prescribed disposition for persons found not guilty by reason of insanity. He did not submit a request for OCGA § 17-7-131 (b) (3) (B), which provides the disposition for a person found guilty but mentally ill. It is apparent from the submitted *211charges, especially Request No. 9, and the discussion at the charge conference, that defendant did not particularly want such a charge because he was afraid that if the jury found he was mentally ill at the time of the crime, it would find him guilty but mentally ill instead of not guilty by reason of insanity. Although he agreed with the court that “guilty but mentally ill” was one of the verdicts the jury could consider, he thought the charge would confuse the jury. He acknowledged that it was in the pattern charge book. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., p. 60.
Defendant reminded the court of the statutory language and the court indicated that it would give the substance of OCGA § 17-7-131 (b) (3) (A) and (B), telling the jury that if it finds defendant was insane or mentally ill at the time of the act, he would be taken and handled as required by law.
The court gave a lengthy charge on insanity and mental illness, the distinction between the two, the test to be applied in determining the existence of each, and the verdict which should be entered upon a finding of either one. It tracked the charge in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., pp. 55-61, omitting the inappropriate charges on delusional insanity and mental retardation and the paraphrases of OCGA § 17-7-131 (a) (3) (A) and (B).2 At a logical point near the end of the instructions on this whole subject, the court gave the charge at issue. In it, the court explained that if either verdict was returned, the defendant would be committed to “the proper state facility until the Court” is satisfied and orders him released in accordance with the law.
After conclusion of the jury instructions, defendant objected to the charge enumerated as error: “[W]hen the Court charged the jury down here that, if — if they found — sort of like a sideline, if you find him not guilty by reason of insanity or mental illness — I don’t think mental illness is in that statute — you told them they would be committed until the Court figured out what to do with them. That’s not in the statute either. That’s in the law, but it’s not in the statute that’s supposed to be charged to them. They’re just supposed to be told that the defendant will be committed to the Department of Human Resources for further evaluation.”3
The Supreme Court reversed the conviction in Spraggins v. *212State, 258 Ga. 32 (364 SE2d 861) (1988), because the trial court did not give the jury instruction mandated by OCGA § 17-7-131 (b) (3) (B) concerning the dispositional consequences of a verdict of “guilty but mentally ill,” of which mental condition there was evidence at trial. The trial court did give OCGA § 17-7-131 (b) (3) (A) regarding insanity. The Supreme Court applied the rule that, since the language of the statute is mandatory, “the failure to comply with a mandatory rule is presumptively harmful.” Id. at 33. It considered the purpose of a charge on subsection (B) and concluded that it was not fulfilled. The purpose “is to ensure that the jury understands that a verdict of guilty but mentally ill does not mean that the defendant will be released.” Id. at 34. The Court found that, since the jury was not so informed and the prosecutor’s argument strongly implied that such a verdict would result in defendant’s release, the presumption of harm was not overcome.
The Court pointed to Loftin v. State, 180 Ga. App. 613, 615 (3) (349 SE2d 777) (1986), for comparison. In that case, instead of the problem being a prosecutor’s misleading argument, the trial court itself instructed the jury that on a verdict of not guilty by reason of insanity, the defendant could be released by a state mental institution after examination. This court ruled that the statement was clearly erroneous because “[t]he ultimate power to order the release from a mental institution of an insanity acquittee is one which rests, not in the institution, but in the trial court.” Id. This is so, we explained, in that “[t]he trial court is entirely free to reject the recommendation of the staff of the institution.” Id. A new trial was ordered because this court could not be certain the jury understood that if it found defendant not guilty of the homicide by reason of insanity, there was the procedural safeguard of a judicial determination that it was safe to release her, before any release occurred, not merely a mental institution determination.
In Guilford v. State, 258 Ga. 253 (368 SE2d 116) (1988), a few months after Spraggins, the Supreme Court reversed the conviction and required a new trial because the trial court failed to give the dis-positional charge relating to a verdict of not guilty by reason of insanity, OCGA § 17-7-131 (b) (3) (A).4 The authority cited is Spraggins. At that time, the prescribed charge when the defense of insanity was interposed was that “should [the jury] find the defendant not guilty by reason of insanity at the time of the crime, this court will maintain custody and control of the defendant until the court is satisfied that the defendant is not a danger to himself or to others.” Id. at *213254.
The year before, in Prophitt v. State, 183 Ga. App. 332 (1) (358 SE2d 892) (1987), this court held that, although the trial court charged the jury OCGA § 17-7-131 (b) (3) (A) and (B), it erred in a recharge when the jury asked for a “ ‘brief definition’ ” of possible verdicts. As pertinent to the issue on appeal, the trial court attempted to condense by instructing that “ ‘a verdict of not guilty by reason of insanity would discharge (the appellant) from the offense charged, (and) he would be committed to the Department of Human Resources until he is no longer a danger to himself or others.” We concluded that this was “at best ambiguous with regard to the crucial issue of who would have custody and control of the appellant and who would ultimately have the authority to discharge him in the event he were found not guilty by reason of insanity. . . .” Id. at 333. This is precisely in line with what Spraggins later held.
In the month following Spraggins, this court decided Cranford v. State, 186 Ga. App. 862 (369 SE2d 50) (1988), a case involving the defense of mental illness but not insanity. The court rejected appellant’s contention that he was entitled to a jury charge on sentencing if he should be found guilty but mentally ill. In support of his contention, Cranford cited Prophitt, supra; Loftin, supra; and Price v. State, 179 Ga. App. 598, 601 (1) (347 SE2d 608) (1986). We distinguished them as holding that instructions on the consequences of a verdict of insanity or mental illness must not mislead the jury into thinking that defendant would be released outright. “The error in those cases,” we said, “was in either allowing the jury to compromise by finding that defendant did not know right from wrong or suffered a delusional compulsion and returning a verdict of guilty but mentally ill, or in the court’s misleading the jury as to defendant’s treatment and release if found insane, thereby depriving him of his insanity defense.” Id. at 863. Cranford acknowledged that he could not prove insanity, and he did receive an instruction on the guilty but mentally ill verdict. We held that “[h]e was not entitled to an instruction on the sentencing options of that verdict, as that would have no bearing on his guilt or innocence. [Cit.]” By continuing to recognize that it would be error to mislead the jury as to the consequences of finding no guilt by reason of insanity or guilt but mental illness, our view was in conformity with Spraggins, although it was not cited.
Since these cases were decided, the statutory provision has been materially changed with respect to subdivision (A). As it applied in all the cases cited above up through Guilford, it read: “I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, this court will maintain custody and control of the defendant until the court is satisfied that the defendant is not a danger to himself or to others.” Now it reads, as relates to Moore’s case: *214“I charge you that should you find the defendant not guilty by reason of insanity at the time of the crime, the defendant will be committed to a state mental health facility until such time, if ever, that the court is satisfied that he or she should be released pursuant to law.”
No longer is the court to instruct that it will maintain custody and control of defendant, even though it will retain legal control; literally taken, the instruction is misleading because an insane acquittee is sent to and detained in the custody of a state mental health facility selected by the Department of Human Resources for evaluation and report to the court which retains jurisdiction. OCGA § 17-7-131 (d). Thereafter the trial judge decides whether the person is to be released or committed to the Department of Human Resources for involuntary treatment. OCGA § 17-7-131 (e). An acquittee so committed may be discharged from Department of Human Resources custody only by the committing court, in accordance with OCGA § 17-7-131 (f).
The key thread running through all of these cases, and subsection (b) (3) of the statute, is that the court will decide if and when a defendant who the jury finds was insane or mentally ill at the time of the crime will be released. The jury is to be disabused of any fear that such a person will be released outright or will be released upon the judgment of mental health authorities. The jury is to be assured that the trial court itself, which the jury knows has the sentencing power, will retain control of the question of release.
That is precisely what the court charged in Moore’s case. After having already described at length the legal definitions of insane and mentally ill and the verdicts appropriate for each, should one or the other be found, the court instructed the jury that if it found one or the other, the defendant would be committed to the proper state facility until the court was satisfied he should be released as provided by law.
It is true that the court did not use the words of the Code. It did not say that defendant would go to a state mental health facility if acquitted by reason of insanity or to the Department of Corrections or the Department of Human Resources if convicted but found mentally ill by the jury. That would be fairly confusing, because the jury would not necessarily know that the state mental health institutions are under the aegis of the Department of Human Resources. It would also be misleading, because subsection (B) does not advise that a defendant found guilty but mentally ill will not be released without court order. Yet that would be the ultimate result. OCGA § 17-7-131 (g). Further, charging in the precise words of subsection (B) is obtuse, because a jury would not know why defendant would go to Corrections instead of Human Resources or vice versa, or who would decide. Which state agency or institution is given physical custody of defendant is not the jury’s concern; it is the trial court’s. OCGA § 17-7-131 *215(g). Yet the charge implicates those two departments of state government.
Decided March 17, 1995 Reconsideration denied March 31, 1995 Daniel B. Kane, for appellant. Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.What is the jury’s concern is that, should it find that defendant was insane or mentally ill when committing the act, defendant would not be released without court order. Of that it was assured in Moore’s case. He was not deprived of his insanity defense or of the defense of mental illness, which he eschewed but was permitted anyway as an alternative to the more ominous verdict of guilt outright. The court’s instruction, particularly taken in the context of its entire charge on the defenses and the alternative verdicts, fulfilled the judicially-recognized purpose of the legislated jury charge in OCGA § 17-7-131 (b) (3). For this reason, I respectfully dissent.
I am authorized to state that Presiding Judge McMurray, Judge Andrews, and Judge Ruffin join in this dissent.
The pattern charge for subsection (A) is: “If this [not guilty by reason of insanity] is your verdict, the defendant will be committed to a state mental health facility until the court is satisfied that the defendant should be released under the law.” The pattern charge for subsection (B) is: “If that [guilty, but mentally ill] is your verdict, the defendant will be given over to the Department of Corrections or to the Department of Human Resources, as the mental condition of the defendant may warrant.” Id. at 58, 60.
Mental illness is in the statute, as subsubsection (3) (B), and it is that provision which involves the Department of Human Resources.
Subsubsection (3) (B) was not involved, but the same would apply to it. Spraggins, supra at 33.