O.C.G.A. § 16-13-2(a) permits a Georgia trial judge to enter sentence a person charged with misdemeanor possession of marijuana under what is commonly referred to as “conditional discharge.”  A “conditional discharge” is a contract between the defendant and the court. The defendant promises the court that he or she will abide by the terms of probation set by the court, and the court promises the defendant that the court will not enter an “adjudication” of guilt against the defendant with regard to the charge of misdemeanor possession of marijuana. If a defendant keeps the promises that he or she makes to the court, the charge of misdemeanor possession of marijuana will be dismissed or “conditionally discharged.”  O.C.G.A. § 16-13-2(a) states: 

“Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against him. Discharge and dismissal under this Code section shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of this Code section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.   

A basic condition of the availability of “conditional discharge” to a defendant is that the defendant “has not previously been convicted of any offense under Article 2 or Article 3 of this chapter or of any statute of the United States or of any state relating to narcotic drugs, marijuana, or stimulant, depressant, or hallucinogenic drugs, pleads guilty to or is found guilty of possession of a narcotic drug, marijuana, or stimulant, depressant, or hallucinogenic drug[.]”  Additionally, “[d]ischarge and dismissal under this Code section may occur only once with respect to any person.” 

Note: Although the wording of O.C.G.A. § 16-13-2(a) would appear that a prior “First Offender” plea to a felony drug-related offense would foreclose the option of a plea and sentence under O.C.G.A. § 16-13-2(a), in our experience, some courts are nonetheless willing to sentence a defendant charged with misdemeanor possession of marijuana under the Conditional Discharge statute. An important lesson can be learned from this apparent anomaly: hire experienced counsel who is willing to work to attain a result that one would (wrongly) assume is clearly foreclosed.   

Generally, a defendant sentenced under the “Conditional Discharge” statute must complete the following:  

• Approximately 12 months probation
• Several clear drug and alcohol tests, which will be submitted randomly
• Approximately 40-80 community service hours
• DUI Alcohol or Drug Risk Reduction course
• Payment of a fine

 

O.C.G.A. § 16-13-2(a) gives the trial judge guidance with regard to what a “conditional discharge” sentence should typically consist of:  

the court may without entering a judgment of guilt and with the consent of such person defer further proceedings and place him on probation upon such reasonable terms and conditions as the court may require, preferably terms which require the person to undergo a comprehensive rehabilitation program, including, if necessary, medical treatment, not to exceed three years, designed to acquaint him with the ill effects of drug abuse and to provide him with knowledge of the gains and benefits which can be achieved by being a good member of society.  

A “conditional discharge” of a misdemeanor possession of marijuana charge is generally a good disposition for our clients who elect not to contest their case and force the State to sustain their burden of proof.  However, there are instances where our clients are unable to complete the conditions imposed by the court for the conditional discharge. If you are unable to complete the terms of your conditional discharge, it is critical that you do not “ignore” the problem.  In almost every case, you will face an attempt by the court to revoke your conditional discharge status. If you are faced with this scenario, please contact Attorneys Sean McIlhinney and Ben Sessions immediately to discuss you particular case free of charge.