First Offender Pleas in the State of Georgia

Posted about 2 years ago. Applies to Georgia, 1 helpful vote

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First Offender Pleas in the State of Georgia

Despite its significant pitfalls and severe consequences for non-compliance with sentence conditions, the State of Georgia's First Offender Act provides individuals not previously convicted of a felony with the opportunity to plead guilty to a criminal charge, pursuant to the provisions of the law, and avoid adjudication of guilt if they comply with the conditions of their sentence. Recognizing the need to provide certain individuals who have not previously been convicted of a felony with the opportunity for a second chance, the State of Georgiaenacted the provisions of Georgia Code (O.C.G.A.) §42-8-60 et. seq. The provisions of the First Offender Act are available for most charges; however, it does not apply to serious violent felonies and does not exempt sexual offender registration requirements or disclosure for background checks for individuals seeking employment providing care for minor children or the elderly.

Following the plea of guilty under the First Offender Act, the judge withholds the adjudication of guilt that would normally follow and instead defers judgment in the case and sentences the Defendant to a term of probation or incarceration (or a combination of both) along with other conditions of the sentence. Upon successful completion of the sentence conditions, a discharge is filed which "completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties." Accordingly, the individual does not have a criminal conviction in connection with the case pled under the First Offender Act and, thus, isnota convicted felon, may continue to vote, own or possess lawfully a firearm, and maintain other rights or liberties that would be lost with a felony conviction.

The Cost of Exoneration

The First Offender Act does not, however, provide a Get Out of Jailfreecard. In fact, the potential for complete exoneration comes at a potentially hefty cost. As set forth in O.C.G.A. 42-8-60(b), a violation of the terms of the first offender sentence affords the court the opportunity to enter the adjudication of guilt and sentence the Defendant to the maximum punishment allowable under the law. By contrast, with a traditional sentence a violation of the terms of probation can result in a revocation of only the remaining term of probation.

What is Probation?

It is important to note that probation is essentially a sentence of confinement that allows a Defendant to serve the allotted time outside of jail as long as they meet certain conditions. Upon a violation of those conditions, the probation can be revoked and the Defendant sentenced to confinement for any period of time up to the remaining term of probation.

By contrast, a sentence of probation under the First Offender Act operates under different rules. Violations of probation in such cases (or conviction of another crime, which would likely be a violation of probation) can result in the judge sentencing the offender to the maximum term allowable based on the charge, even if that sentence would result in confinement for a period longer than the original probated sentence.

As a hypothetical example, Defendant X pleads guilty to felony burglary in violation of O.C.G.A. Section 16-7-1 and is sentenced to three years probation under the First Offender Act. Two years into his sentence he violates the terms of his probation. Defendant Y also pleads guilty to felony burglary, but he agrees to a traditional plea of guilty without invoking the benefits of the First Offender Act and is sentenced to three years probation. Two years into his sentence he violates the term of his probation. Both Defendants go before the same judge on the same day for probation revocation hearings. The judge can adjudicate Defendant X as guilty and sentence him to as much as twenty (20) years in prison, likely with credit for time served. On the contrary, Defendant Y may have his probation revoked; however, the judge can only sentence him to the one year of confinement remaining in his original probated sentence.

Due Process

During a plea under the First Offender Act, the prosecutor will usually require the Defendant to state on the record that s/he has not pled guilty or been otherwise convicted of a felony in the past and that s/he has never used first offender protection. To ensure that the Defendant understands the ramifications of a plea under the First Offender Act, both good and potentially bad, the presiding judge will likely inquire of the Defendant on the record whether s/he understands the benefits and drawbacks of the program. In the event that a otherwise eligible individual is pleading guilty to a felony and electing not to use the provisions of the First Offender Act, the judge will likely also have the Defendant state on the record that they do not want to be afforded first offender status.

Additional Resources

O.C.G.A. § 42-8-60: (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. § 42-8-62. Discharge of defendant without adjudication of guilt (a) Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8-63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction. It shall be the duty of the clerk of court to enter on the criminal docket and all other records of the court pertaining thereto the following: "Discharge filed completely exonerates the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties, except for registration requirements under the state sexual offender registry and except with regard to employment providing care for minor children or elderly persons as specified in Code Section 42-8-63.1; and the defendant shall not be considered to have a criminal conviction. O.C.G.A. 42-8-62."

Georgia Code (O.C.G.A.)

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