Written by attorney Ernest Dewitt Napier III

Georgia First Offender Act

Georgia First Offender Act

The First Offender Act is an alternative sentencing mechanism that allows someone to accept responsibility for a mistake, pay his or debt to society, and avoid the label “Convicted Felon".

Sentencing under the First Offender Act is discretionary and only available once. O.C.G.A. § 42-8-60 states:

(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.

Pursuant to O.C.G.A. § 42-8-62, “[u]pon 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."

The First Offender Act is a “double-edged" sword. Under O.C.G.A. § 42-8-60, “[u]pon 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."

What happens if I violate the terms of probation

Upon a revocation of a defendant previously sentenced under the First Offender Act, the Court which sentenced the defendant may re-sentence him/her to the maximum sentence penalty allowable under the law.

What Crimes are not available for First Offender Treatment

First Offender Sentencing is not available to defendants in the following classes of cases:

(1) A serious violent felony as defined in Code Section 17-10- 6.1;

(2) A sexual offense as 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.

Interesting First Offender Cases

Wilsonv. State, 259 Ga. App. 627, 578 S.E.2d 260 (2003) - Under O.C.G.A. § 42-8-60(a), a trial court may place a first offender defendant on probation or sentence the defendant to a term of confinement as provided by law and nothing in the statute mandates a probationary period for first offenders; on the contrary, a trial court exercises its discretion in determining whether to grant probation to a first offender. Therefore, defendant, who was sentenced as recommended by the plea agreement, properly had defendant's motion to correct sentence denied.

State v. Stulb, 296 Ga. App. 510, 675 S.E.2d 253 (2009). After a defendant was convicted for statutory rape, the trial court lacked jurisdiction to re-sentence the defendant as a first offender or to rescind the conviction or confinement portion of the sentence. First offender treatment was only permitted before a defendant had been adjudicated guilty and sentenced.

Crawford v. State, 166 Ga. App. 272, 304 S.E.2d 443 (1983). The trial court does not err in imposing a greater sentence on defendant than the original first offender sentence, in revoking defendant's earlier probation, where the first offender sentence of probation plainly stated, "If such probation is revoked or cancelled, the court may adjudge the defendant guilty of the above offense and impose any sentence permitted by law for the ... offense."

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