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Getting a new charge while on first offender probation?

Covington, GA |

My fiance was charged with a felony back in 2011 for possession of marijuana w/ intent to distribute. The judge gave him 1st offender & a 10 do 1. He served 9 months in prison & then was released. A few days before Christmas in 2012 he was arrested & charged w/ criminal trespassing(misdemeanor). At the end of July when he reported to his probation officer they arrested him for picking up a new charge. He has been in jail for about 75 days now. The probation officer told our lawyer today that if the District Attorney decides to not revoke his 1st offender then the P.O. will write a waiver & have him released. How do they determine whether or not to revoke his 1st offender? My fiance is up to date on all of his fines, will still have his job when he gets out, & has maintained good behavior.

Attorney Answers 3


  1. The primary thing to remember about the First Offender Act and conditional discharge is that being allowed to serve a sentence pursuant to either of those is because of judicial and legislative grace; at no time is a court required to permit FOA or CD status as part of the original sentence. Therefore, if a person serving a sentence pursuant to those incurs additional charges, they can be revoked & re-sentenced on the original charge up to the max sentence allowed under the law, with credit for whatever time, etc., was already served and paid. Also, as the FOA in the original case in your fiancé's situation was likely part of a sentencing or plea deal, it doesn't matter that your fiancé may be up-to-date on his probation and payment of fines, etc.; if the FOA is revoked, he faces a potential re-sentence up to 10 yrs, with credit for time served. If your fiancé does not already have an attorney, he needs to hire one or apply for a public defender immediately.


  2. They are going to look at the circumstances of his original crime, the new charge, and how he was doing while he was on first offender probation. Also, if he has completed any requirements that he had to while on probation such as drug classes, treatment, or community service that will help him. The DA will make the decision based on all of these circumstances, and a few more minor ones.

    James L. Yeargan, Jr. is licensed to practice law in the State of Georgia. All information given is based only on Georgia law, and is not directly applicable to any other jurisdictions, states, or districts. Any answer given assumes the person who asked the question holds a Georgia Drivers License, and this license is not a commercial drivers license (CDL). This response, or any response, is not legal advice. This response, or any response, does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information. Any state specific concerns should be directed to an attorney who is licensed to practice law in that respective state.


  3. In Newton County, if the probationer gets a new misdemeanor charge while on probation, they usually revoke some of the probation. Usually, the probationer receives about 6 months of time in the PDC (where there is no credit for the time served, and no 2 for 1 credit) for a new misdemeanor. There is certainly a chance they will not revoke the First Offender, especially if this is his first probation violation in his life.

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