Georgia First Offender Act
Georgia First Offender Act
Georgia’s First Offender program makes it possible for certain first-time offenders to avoid conviction and prevent having a public criminal record.
What Can the Program Do For Me?
The First Offender Act is a form of alternative sentencing that makes it possible for someone with no prior felony conviction to avoid customary prosecution by completing a set of requirements. The result is avoiding incars=ceration and not having a record of being convicted for a crime.
Wikipedia describes the Georgia First Offender Act in this way, "The Georgia First Offender Act (Georgia Code § 42-8-60) is a legal resource for certain first time criminal offenders to not plead guilty, and have their records expunged if they comply with the law’s provisions. Upon successful compliance with this law, the defendant’s criminal record is expunged on application to the court." 1
How Does the First Offender Act Work?
If you are allowed to be treated under the rules of the First Offender Act program, and successfully satisfy all of the requirements, the court will discharge your case. However, if you fail to satisfy all requirements, commit other crimea, the court can revoke First Offender status. You will then be convicted on all prior charges to which you plead guilty, and sentenced accordingly.
An initial part of the First Offender program is that you must enter a plea of guilty. This does not mean that you will be convicted at that pint, however: it puts you on the hook in case you fail to complete the requirements.
You will be in a probationary status as you complete the requirement. You may be required to pay fines, restitution, cost of any required counseling or treatment programs. Every case is slightly different so consult with a lawyer to learn what you can expect.
Georgia First Offender Act Eligibility
The best way to know if your qualify is to speak with a criminal justice lawyer who understands First Offender laws.
Generally speaking, First Offender treatment may be available to a person charged with either a misdemeanor or a felony crime. In fact, in a letter written by Georgia Attorney General in January of 2000, relative to O.C.G.A. 42-8-60 he states, "There is no language in the above statute limiting its application to felony offenses. Furthermore, I am aware of no other provision in Georgia law that operates to limit the Act to felonies. In the absence of any limiting language, the statute should be construed as applicable to both felony and misdemeanor offenses."2
It should be understood that First Offender treatment is not available for everybody accused of a crime in Georgia. In order to purse this alternative sentencing, the following must apply to your case:
- the accused cannot have any prior convictions in any state
- you cannot have previously been treated as a first offender
- the accused must accept responsibility and plead guilty to the charge(s)
People who are specifically not eligible are people charged with DUI and very serious crimes such as murder, rape, kidnapping, most felony sexual offenses.
First Offender for DUI in Georgia
The State of Georgia does not allow First Offender treatment for any DUI arrest. If you are arrested for any DUI or DUI Less Safe offense in Georgia, you are subject to standard prosecution. Because First Offender is not available you could be facing restrictions or revocation of driving privileges, fines, community service, jail time or more.
About Georgia Code O.C.G.A. 42-8-60
Georgia law for fist offenders deals with probation prior to adjudication of guilt; violation of probation; and review of criminal record by judge. Specifically, it reads as follows:
- (a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:
- (1) Defer further proceeding and place the defendant on probation as provided by law; or
- (2) Sentence the defendant to a term of confinement as provided by law.
- (b) Upon violation by the defendant of the terms of probation, upon a conviction for another crime during the period of probation, or upon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. No person may avail himself or herself of this article on more than one occasion.
- (c) The court shall not sentence a defendant under the provisions of this article and, if sentenced under the provisions of this article, shall not discharge the defendant upon completion of the sentence unless the court has reviewed the defendant’s criminal record as such is on file with the Georgia Crime Information Center.
- (d) The court shall not sentence a defendant under the provisions of this article who has been found guilty of or entered a plea of guilty or a plea of nolo contendere for: (1) A serious violent felony as such term is defined in Code Section 17-10-6.1;
- (2) A sexual offense as such term is defined in Code Section 17-10-6.2;
- (3) Sexual exploitation of a minor as defined in Code Section 16-12-100;
- (4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12-100.1; or
- (5) Computer pornography and child exploitation, as defined in Code Section 16-12-100.2.
Early Discharge First Offender Act
In felony probation situations your lawyer may be able to file a motion, have a hearing, and obtain early dismissal of your case. Generally speaking, you can apply for early release from probation after three years of probation. To do so, you must not have had your probation revoked, been charged for other crimes, and paid any required restitution.
Per the Georgia Justice Project website, if you file for early discharge from probation, here is what you can expect:
- Your probation officer will be notified of your eligibility and, depending on your sentence, may submit an order to terminate your probation.
- The Court must grant the order to terminate your probation unless the prosecutor or the judge requests a hearing within 30 days.
- If a hearing is requested, it will be scheduled within 90 days. At the hearing, you will be able to present to the Judge why you should no longer be on probation.
- If a hearing is requested by the prosecutor or the Judge, it will still be the Judge’s decision whether to terminate your probation early.
Georgia First Offender Act Background Check
This is a slightly complicated matter. Successful completion of a First Offender Program mandates that a person’s conviction shall be vacated and any record thereof sealed from a Georgia criminal history report. It is important to know that without a formal Record Restriction a deep background check may find conviction records. Additionally, as stated on the Asset Control website, "Certain First Offender records related to serious sexual or violent offenses will remain available for employment with children, elderly, and the mentally disabled. First Offender records will also be available for law enforcement and criminal justice purposes. "4
The article further states, "Court records of First Offender cases are kept by the clerk of court and remain publicly available after discharge. The First Offender Act requires the clerk notate the file to indicate discharge and exoneration, but the records remain publicly available.".
First Offender Expungement (Records Restriction)
Expungements, now called Records Restriction, is possible but it’s not always easy. The records restriction processFor misdemeanor convictions, four years after completing the full sentence, a person may petition the court to restrict the record of up to two convictions. For felony convictions, a person must receive a pardon for their offense before being eligible to petition the court to restrict the record.
Success with requesting Records Restriction is a sure thing. Every record restriction petition submitted to the court must pass a thorough review and approval process. One such element is cited in an article published on the JD Supra website. There recent legal article states, “In deciding whether or not to grant the petition, the court will weigh the harm to the individual versus the public’s interest in knowing about the conviction.”5.
Retroactive First Offender Statute | O.C.G.A. 42-8-66
First Offender treatment may be available for someone who has already been convicted and sentenced in Georgia. The Georgia Legislature added a provision to the First Offender Act which makes it possible for certain individuals to have their case reconsidered.
Per this provision, your defense lawyer can file a petition for discharge and exoneration including a hearing for the retroactive grant of first offender status.
About Georgia Code 42-8-66
- (a) An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment may, with the consent of the prosecuting attorney, petition the superior court in the county in which he or she was convicted for discharge and exoneration pursuant to this article.
- (b) The court shall hold a hearing on the petition if requested by the petitioner or prosecuting attorney or desired by the court.
- (c) In considering a petition pursuant to this Code section, the court may consider any:
- (1) Evidence introduced by the petitioner;
- (2) Evidence introduced by the prosecuting attorney; and
- (3) Other relevant evidence.
- (d) The court may issue an order retroactively granting first offender treatment and discharge the defendant pursuant to this article if the court finds by a preponderance of the evidence that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced and the ends of justice and the welfare of society are served by granting such petition.
- (e) The court shall send a copy of any order issued pursuant to this Code section to the petitioner, the prosecuting attorney, and the Georgia Bureau of Investigation. The Georgia Bureau of Investigation shall modify its records accordingly.
- (f) This Code section shall not apply to a sentence that may be modified pursuant to subsection (f) of Code Section 17-10-1.
Do you want help in obtaining First Offender alternative sentencing? We encourage you to contact us and arrange an appointment with a friendly First Offender lawyer in Georgia
FOOTNOTES & CREDITS
- 1Wikipedia“Georgia First Offender Act”, April 1, 2021, Available from Wikipedia
- 2Attorney General Thurbert E. Baker, “Official Opinion 2000-1”, January 30, 2000, Available from Office of the Attorney General
- 3 Nathan Lyle, “Georgia Early Termination of Probation”, January 15, 2023, Available from Georgia Justice Project
- 4 Russ Rosenberg, “Georgia First Offender Law”, September 9, 2015, Available from Asset Control
- 5 Stokes Wagner, “Georgia’s SB 288: Giving Rehabilitated Individuals a Second Chance”, May 18, 2021, Available from JD Supra
- Photo by Ekaterina Bolovtsova, available at PEXELS