Georgia law provides for a special type of sentence under the First Offender Act. The First Offender Act is particularly beneficial to most defendants because it permits a person to honestly state that they have not been convicted of a felony if they successfully complete the terms of the terms of their sentence. This special type of sentence is left to the discretion of the Court and is, by no means, a certainty in any case. Sentencing under the First Offender Act is only available 1 time.
O.C.G.A. § 42-8-60 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:
Pursuant to O.C.G.A. § 42-8-62, “[u]pon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. Except for the registration requirements under the state sexual offender registry and except as otherwise provided in Code Section 42-8- 63.1, the discharge shall completely exonerate the defendant of any criminal purpose and shall not affect any of his or her civil rights or liberties; and the defendant shall not be considered to have a criminal conviction.”
When a defendant has successfully completed the terms of his/her First Offender Sentence, “a discharge…is not a conviction of a crime under the laws of this state and may not be used to disqualify a person in any application for employment or appointment to office in either the public or private sector.” However, O.C.G.A. § 42-8-63.1 provides that “[a] discharge under this article may be used to disqualify a person for employment if:
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(2) The employment is with a public school, private school, child welfare agency, or a person or entity that provides day care for minor children or after school care for minor children and the defendant was discharged under this article after prosecution for the offense of child molestation, sexual battery, enticing a child for indecent purposes, sexual exploitation of a child, pimping, pandering, or incest;
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(3) The employment is with a nursing home, personal care home, or a person or entity that offers day care for elderly persons and the defendant was discharged under this article after prosecution for the offense of sexual battery, incest, pimping, pandering, or a violation of Code Section 30-5-8; or
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(4) The request for information is an inquiry about a person who has applied for employment with a facility as defined in Code Section 37-3-1 or 37-4- 2 that provides services to persons who are mentally ill as defined in Code Section 37-3-1 or mentally retarded as defined in Code Section 37-4-2, and the person who is the subject of the inquiry to the center was prosecuted for the offense of sexual battery, incest, pimping, or pandering.
(b) Any discharge under this article may be used to disqualify a person from acquiring or maintaining a peace officer certification as provided for in Chapter 8 of Article 35 and also may disqualify a person from employment in a certified position with a law enforcement unit where the discharge under this article pertained to a felony offense or a crime involving moral turpitude.
Many defendants mistakenly believe that if they are eligible for First Offender sentencing they will not be sentenced to jail time. A defendant may be sentenced to jail time under the First Offender Act.
For all of its advantages, the First Offender Act is a “double-edged” sword. Under O.C.G.A. § 42-8-60, “[u]pon 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.” Upon a revocation of a defendant previously sentenced under the First Offender Act, the Court which sentenced the defendant may resentence him/her to the maximum sentence penalty allowable under the law.
First Offender Sentencing is not available to defendants in the following classes of cases:
(1) A serious violent felony as such term is defined in Code Section 17-10- 6.1;
(2) A sexual offense as such term is defined in Code Section 17-10-6.2;
(3) Sexual exploitation of a minor as defined in Code Section 16-12-100;
(4) Electronically furnishing obscene material to a minor as defined in Code Section 16-12-100.1; or
Attorneys Sean McIlhinney and Ben Sessions understand the fine details of the First Offender Act in Georgia. If you have questions about Georgia’s First Offender Act or if you would like to schedule a FREE CONSULTATION to discuss your case, contact our office today.
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