GEORGIA’S FIRST OFFENDER ACT
Under Georgia’s First Offender Act (OCGA § 42-8-60), when a person has not been previously convicted of a felony offense, the court may, upon a guilty verdict or plea of guilty or nolo contendere and before an adjudication of guilt, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place the defendant on probation; or sentence the defendant to a term of confinement.
THE GOOD
A. The sentencing Court must include a Behavioral Incentive Date (BID Date).
After sentencing a person under Georgia’s First Offender Act, if the Court sentences the person to a term of probation or not more than 12 months of imprisonment followed by a term of probation, the court shall include a behavioral incentive date in its sentencing order that does not exceed three (3) years from the date such sentence is imposed. [OCGA § 17-10-1(b)(i)]
This means that you may be released from First Offender probation within three years of your sentencing date if you have:
Paid all restitution owed;
Not had your probation revoked for any reason in the immediately preceding 24 months (2 years); and
Not been arrested for anything other than non-serious traffic offenses (as defined by OCGA § 35-3-37.) [OCGA § 17-10-1(b)(i)].
B. Access to Your Criminal Record may be restricted during First Offender Probation Term.
At the time of sentencing, a person may seek to limit public access to his or her first offender sentencing information, and the court may, in its discretion, order any of the following:
Restrict dissemination of the defendant's first offender records;
The criminal file, docket books, criminal minutes, final record, all other records of the court, and the defendant's criminal history record information in the custody of the clerk of court, including within any index, be sealed and unavailable to the public; and
Law enforcement agencies, jails, or detention centers to restrict the defendant's criminal history record information of arrest, including any fingerprints or photographs taken in conjunction with such arrest.
When considering the defendant's request under this subsection, the court shall weigh the public's interest in the defendant's criminal history record information being publicly available and the harm to the defendant's privacy and issue written findings of fact thereupon. [OCGA § 42-8-62.1(b)].
This means that no one (individuals, non-law enforcement jobs, apartment complexes, etc.) is allowed to access your First Offender court records without a court order or for non-law enforcement / prosecutorial purposes.
C. After you successfully complete your First Offender probation, you will be considered to be exonerated of guilt and discharged.
Successful completion of your First Offender probation allows you to be exonerated of guilt. A person sentenced to the Georgia First Offender Act shall be exonerated of guilt and shall stand discharged as a matter of law as soon as the defendant:
Completes the terms of his or her probation, which shall include the expiration of the sentence by virtue of the time frame of the sentence passing, provided that such sentence has not otherwise been tolled or suspended;
Is released by the court prior to the termination of the period of his or her probation; or
Is released from confinement and parole, provided that the defendant is not serving a split sentence. [OCGA § 42-8-60(e)].
D. A discharge under Georgia’s First Offender Act cannot be used to disqualify a person from employment or appointment to office.
A discharge under the Georgia First Offender Act is not a conviction of a crime under the laws of Georgia and shall not be used to disqualify an individual in any application for employment or appointment to office in either the public or private sector. OCGA § 42-8-63.
This means, although there are some exceptions to this general rule (see OCGA § 42-8-63.1), you are still eligible for most jobs and able to run for public office.
THE BAD
A. First Offender Treatment can only be used once.
Under Georgia law, you may only be sentenced under Georgia’s First Offender Act once. Even if you successfully complete your First Offender probation sentence and are discharged without a conviction, you are not allowed to be sentenced under the provisions of Georgia First Offender Act a second time. [See OCGA § 42-8-60(l)].
B. First Offender Treatment cannot be used for certain charges.
Unfortunately, not all criminal charges are available to be discharged under Georgia’s First Offender Act. A person cannot be sentenced under Georgia’s First Offender Act if he or she is found guilty of or entered a plea of guilty or a plea of nolo contendere for the following criminal offenses:
Driving under the influence of Alcohol or Drugs;
A serious violent felony as such term is defined in OCGA § 17-10-6.1;
A sexual offense as such term is defined in OCGA § 17-10-6.2;
Trafficking of persons for labor or sexual servitude as prohibited by OCGA § 16-5-46;
Neglecting disabled adults, elder persons, or residents as prohibited by OCGA § 16-5-101;
Exploitation and intimidation of disabled adults, elder persons, and residents as prohibited by OCGA § 16-5-102;
Sexual exploitation of a minor as prohibited by OCGA § 16-12-100;
Electronically furnishing obscene material to a minor as prohibited by OCGA § 16-12-100.1;
Computer pornography and child exploitation as prohibited by OCGA § 16-12-100.2; and/or
Any violent felony committed against a law enforcement officer while such officer is engaged in the performance of his or her official duties. [OCGA § 42-8-60(j)].
THE UGLY
If you violate your probation, you could be adjudicated guilty and resentenced to the maximum possible sentence.
A potential risk of using Georgia’s First Offender Act is the Court’s power to adjudicate guilt and resentence you under certain conditions. The sentencing Court may enter an adjudication of guilt and proceed to sentence the defendant as otherwise provided by law if:
The Defendant violates the terms of his or her first offender probation;
The Defendant is convicted for another crime during the period of his or her first offender sentence; or
The Court determines that the defendant is or was not eligible for first offender sentencing under this article. [OCGA § 42-8-60(d)].
This means that you will now be considered a convicted felon and are no longer eligible to be treated as a First Offender. This felony conviction is now considered to be permanent. It also means that the Court could resentence you to the maximum possible sentence (including spending the entirety of the remaining sentence in prison).
