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Can a first offender "plea" 21 years ago be used to enhance a charge 21 years later? Can a motion be filed to drop the use of it

Atlanta, GA |

The Defendent has a possession of Marijuan charge whe he was 19. He used the first offenders act then. He was picked up 21 years later on conspiracy charges, and they used that FOA to enhance the conspiracy chage.

Attorney Answers 4

Posted

Dear ?,

If the possession of mj charge was a felony, then, in most states there are statutes providing for enhanced penalties for anyone with a felony conviction who is later charged with another felony. There is no time limit on these statutes.

Yours sincerely,
Tim Provis
Cal. Bar No. 104800
Wis. Bar No. 1020123
Member: U.S. Supreme Court Bar

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Posted

Thank you for your response. From what im reading it was a misdemeanor.

Posted

If the earlier charge was sentenced under the "First Offender" act and all of the terms and conditions met, then there was no conviction. It is possible that the actual discharge was never entered after the probationary period had been completed. ave your lawyer look into that for sure.

I am an attorney, practicing throughout the state of Georgia, but primarily in the areas around Augusta, Statesboro and Savannah, Georgia. You may review more information about my practice by going to: http://www.avvo.com/attorneys/30809-ga-elmer-young-540135/reviews.html. The information I am providing you should only be considered for your general knowledge and educational purposes. Consider it as a good first step in your knowledge acquisition, but not as legal advice. Indeed, any information I provide is based on the extremely limited facts you have provided and new facts could substantially alter any answer or reply. My opinion should be understood to apply only to the laws of the State of Georgia. You should always consult with a local attorney about your situation if you live outside of the State of Georgia.

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Posted

Ok thank you but we need to obtain a new lawyer. If you could recommend one I would appreciate it. We feel that the first lawyer was ineffective in representing the dependent.

Posted

Was the most recent case is in Federal Court? If so, that may be the reason.

Thanks for reading my response to this question. If your found this answer "Helpful" or "The Best Answer" PLEASE MARK IT, because Avvo awards me points. Thank you! Note that the questioner and any reader do not have an attorney-client relationship formed by our communications on this website. Advice given by me on this website is general advice based on partial information. You should not rely on any advice given without first hiring a lawyer in the area where the case is pending, and providing that lawyer with full information.

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Posted

Thank. Your for your response. Yes the charge where the enhancement was applied is in federal.

Posted

The federal courts do use first offender adjudications in certain instances for sentence enhancements. It would be unlikely that it could occur however if the offense was a mere possession charge because there are time constraints on those convictions. Where people get hurt in these situations is where it was a distribution offense and a sentencing enhancement is filed by the government under section 851 of the federal code. If however it is a state enhancement, it should not be able to be used because the code section in Georgia regarding first offender specifically said at that time it was not a conviction and could not be used against you. I need to know more about the current charges; where they are; and, if you successfully completed the first offender probation. By the way it would also be important to know if the original sentence was a felony or a misdemeanor.
Based on what I know about your current situation these are some issues I see, however, until I know more about both cases it is impossible to determine how it might play out.
LDWolfe

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Posted

Thank you in advance for your time taken in answering my questions. Now from what I can read and understand it was a misdemeanot and i have a copy of his "Order of Discharge". It is a possession charge less than 1 oz.

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Posted

He has been sentenced in the northern district of Georgia.

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