RETROACTIVE FIRST OFFENDER IN GEORGIA

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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 does the First Offender Act entail?

WHAT IS THE FIRST OFFENDER ACT?

Under Georgia law, O.C.G.A. § 42-8-60, 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; 

(2) A sexual offense; 

(3) Sexual exploitation of a minor; 

(4) Electronically furnishing obscene material to a minor; or, 

(5) Computer pornography and child exploitation. 

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 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.

STEPS TO DETERMINING YOUR ELIGIBILITY FOR RETROACTIVE FIRST OFFENDER

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 has 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 that handled the original case must consent to the filing of the petition. 

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 Georgia criminal defense lawyer 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.