Retroactive First Offender in Georgia

Were you convicted of a felony but later found out that you were entitled to plead guilty or nolo contendere under Georgia’s First Offender Act? Maybe you were not informed by your attorney of the availability of the First Offender Act program. Or, unfortunately, you may not have even had representation at all at your sentencing. If so, your case may be eligible for retroactive application of the First Offender Act and sentencing. If there is any chance to wipe your record clean then it’s a worthy cause to look into because your criminal history will follow you for the rest of the days of your life, negatively impacting your livelihood. But, first, you may be wondering what exactly the First Offender Act entails.

At Bixon Law, we work tirelessly with you to understand all the unique aspects of your case and ensure that every opportunity for a clean slate is pursued vigorously. Our experienced attorneys will guide you through the intricacies of the First Offender Act, advocating for your rights and seeking the best possible outcome. With our expertise and dedication, we strive to provide you with the chance to move forward with confidence and rebuild your life.

What is the First Offender Act?

Under Georgia law, O.C.G.A. § 42-8-60, the First Offender Act is an alternative sentencing option that allows a person with no prior felony convictions to dispose of their criminal case without a conviction. The law 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.

(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; 

Due to the severity of the offense and its potential impact on public safety, the court must adhere to stricter sentencing guidelines.

(2) A sexual offense; 

Given the nature of sexual offenses and the need to protect victims, alternative sentencing options may not be appropriate in these cases.

(3) Sexual exploitation of a minor; 

Protecting vulnerable populations like minors is essential, necessitating stringent consequences for those convicted of exploitation crimes. 

(4) Electronically furnishing obscene material to a minor;

Offenses involving the distribution of obscene material to minors carry significant implications for the well-being and safety of young individuals. 

(5) Computer pornography and child exploitation;

Crimes related to computer pornography and child exploitation pose grave risks to minors and society, warranting rigorous punishment to deter such behavior. 

In short, if a person successfully completes the First Offender Act program then his or her case will be discharged by the court without a conviction and will be removed from their criminal history. However, if a person fails to complete the First Offender Act program or commits a new crime, the judge can revoke the person’s First Offender status. If a person’s First Offender status is revoked then he or she will be convicted of the offense(s) they previously plead guilty to. 

Retroactive Application

In 2015, the Georgia legislature passed a reform allowing for the retroactive application of First Offender sentencing. In 2017, the law was further clarified to make retroactive provisions applicable to any case sentenced on or after March 18, 1968. Under Georgia law, O.C.G.A. § 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, 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 to the petitioner, the prosecuting attorney, and the Georgia Bureau of Investigation. The Georgia Bureau of Investigation shall modify its records accordingly.

Determining Your Eligibility for Retroactive First Offender Relief

STEP 1: The first step to determine if an individual is eligible to receive First Offender status retroactively is to verify that the person was able to receive First Offender treatment at the time he or she was originally sentenced. As outlined in the statute, there are some offenses that disqualify a person from First Offender treatment such as being convicted of a violent felony offense. However, most people qualify as long as they don’t have a prior felony conviction and/or have not previously been sentenced under the First Offender Act. Further, to obtain retroactive First Offender treatment for sentences imposed after October 31, 1982, the person must have been unaware that he or she qualified before being sentenced. Also, if an individual was denied First Offender treatment by a judge previously then he or she would most likely not be eligible to receive First Offender treatment retroactively. 

STEP 2: The second step in the process is to file a petition in the court where the person was convicted. The court will hold an evidentiary hearing to determine whether First Offender treatment should be retroactively granted. In addition, the prosecuting attorney who handled the original case must consent to the filing of the petition. It’s advisable to seek legal representation to navigate the complexities of the petition process effectively. 

STEP 3: The third step in the process is the evidentiary hearing itself, in which, the judge will determine whether to grant the petition. The judge will consider the petitioner’s evidence along with the prosecutor’s evidence. After the evidence has been presented, the judge will issue an order granting or denying the defendant First Offender treatment retroactively.

Contact Bixon Law Today!

Have you been arrested and charged with a crime in Georgia? If so, call Bixon Law today. You need an experienced criminal defense attorney on your side who will defend your legal rights and vigorously advocate on your behalf to have your case dismissed or the charges against you reduced. As experienced trial attorneys, we are also not afraid to take your case to trial if necessary. We represent clients in Atlanta and throughout the state of Georgia. We are lawyers who are committed to helping people in difficult situations and we invite you to call us at 404-551-5684 for a free consultation today. 

If you’re facing criminal charges in Georgia, you may be eligible for relief under the Retroactive First Offender Act, which is a chance to mitigate the consequences of your case. At Bixon Law, we specialize in navigating the complexities of Georgia’s legal landscape, providing tailored defense strategies to protect your rights and explore all available options, including retroactive first-offender treatment. Our compassionate team is dedicated to guiding you through this challenging time, offering personalized support and aggressive advocacy every step of the way. Don’t let uncertainty define your future – contact us today for a free consultation and take control of your legal defense.