Monday, September 5, 2011

Georgia's First Offender Act


There are few circumstances in life that are more devastating than being charged with a felony offense.  A felony conviction is even worse.  Convicted felons face prison time, loss of constitutional rights, school opportunities, and job opportunities.  Additionally, there is the obvious stigma as being labeled in society as convicted felon. 

Fortunately in Georgia, the legislature has provided for a rare second chance for some people facing a felony prosecution.  Defendants who qualify as a first offender may be available to avail themselves to the provisions of OCGA 42-8-60 which provides in pertinent part:

    (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 judgement of guilt and with the consent of the defendant:

        (1)    Defer further proceedings and place the defendant on probation as provided by law.

This means that a first time offender can enter a plea in his case and the adjudication of guilt will be withheld until the period of probation is over.  If the defendant successfully completes the term of probation, he is discharged without a court adjudication of guilt.  This means no conviction.

As with most things in life, there is a balancing down side to being sentenced as a first offender.  If the defendant is on first offender probation and violates the terms or conditions of probation, he can be brought back before the same judge who gave him first offender treatment and faces having his first offender status revoked and being sentenced to up to the maximum allowed under the criminal statute that he plead to.  Hearings on first offender revocations are not pleasant.

The trial judge may use his sound discretion in determining whether or not to impose first offender punishment on a defendant who is eligible for such treatment.  However, the defendant may not receive first offender treatment unless he consents to such a disposition of his case. 

The Court of Appeals has described first offender treatment rather accurately.  “In a strict legal sense, first offender treatment does not constitute a sentence at all.  Rather, under the Act, “sentence” is deferred while the defendant is given the opportunity by the trial court to show that he is capable of comporting himself as a responsible, law abiding citizen...”  O.Ree v. State, 172 Ga. App. 51 (1995). 

The bottom line is that when a good person has made a terrible mistake, the State of Georgia gives that person an opportunity for a  second chance.  Second chances in life provide the foundation for some of the best individuals that you will see during your lifetime. 

1 comment:

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