Georgia’s First Offender Act

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by Casey Cleaver

What is it?

Under Georgia Code § 42-8-60, the First Offender Act is a sentencing option which allows a person with no prior felony convictions to dispose of their criminal case without a conviction. The law can be paraphrased as follows:

Where a defendant has not been previously convicted of a felony, the court may, upon a verdict or plea of guilty or nolo contendere, and before adjudication of guilt, without entering a judgment of guilty and with the consent of the defendant, defer future proceedings and place the defendant on probation or sentence the defendant to a term of confinement.

O.C.G.A. § 42-8-60(a). Essentially, this means that if a guilty verdict or plea of guilty or nolo contendere is entered against a first-time offender, the State will delay entering a judgment and place the first-time offender on probation or in confinement (or a hybrid of both). The First Offender Act is not a substitute for punishment, but rather an alternative to a conviction.

Although the first-time offender is “sentenced” to probation or confinement, if the person successfully completes their sentence (along with any accompanying terms, fines, and/or programs) then the case is discharged by the court without a conviction and disappears from their criminal history for most employment purposes.

However, if a person fails to complete all the applicable terms of their sentence or commits a new crime, the judge can revoke that person’s First Offender status, and they will be automatically convicted because of the previously entered guilty verdict or plea.  Additionally, the judge could re-sentence you.[1]

Retroactive Application

Initially, a first-time offender could only receive First Offender treatment at the time of sentencing. This limitation ignored a large population of individuals who were eligible for First Offender treatment in the past, but, for various reasons, were not sentenced under the Act; the Act also did not originally include those who were not represented by an attorney and who were not informed of the First Offender sentencing option by the court at their sentencing.

In 2015, the Georgia legislature passed reform allowing for the retroactive application of First Offender sentencing. The law was further clarified in 2017 to make the retroactive provisions applicable to any case sentenced on or after March 18, 1968. The law governing retroactive application of the First Offender Act can be paraphrased as follows:

An individual who qualified for sentencing pursuant to this article but who was not informed of his or her eligibility for first offender treatment or an individual who was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year but who would otherwise have qualified for sentencing pursuant to this article may, with the consent of the prosecuting attorney, petition the court in which he or she was convicted for exoneration of guilt and discharge pursuant to this article.

O.C.G.A. § 42-8-66(a) (emphasis added). The process for retroactively applying First Offender status is relatively simple and can be broken down into three steps. The first step is to determine whether the individual is eligible to receive First Offender status retroactively. To be eligible, the person must have been able to receive First Offender treatment at the time he was originally sentenced. There are some offenses under Georgia that disqualify First Offender treatment (such as certain violent felony offenses and sex offenses listed in O.C.G.A. § 17-10-6.1). Most offenses, however, qualify for First Offender treatment so long as the person does not have a prior felony conviction and has not previously been sentenced under the First Offender Act.

If the individual was sentenced between March 18, 1968, and October 31, 1982, to a period of incarceration not exceeding one year then the individual is not required to have been unaware they qualified before they were sentenced. Conversely, to obtain retroactive First Offender treatment for sentences imposed after October, 31 1982, the person must have been unaware that he qualified before he was sentenced. For instance, if an individual requested First Offender at the time of sentencing but was denied First Offender treatment by the judge, he would most likely not be eligible to receive First Offender treatment retroactively.

The second step in the process is to file a petition in the court where the person was convicted. A petition will request that the court hold an evidentiary hearing to determine whether First Offender treatment should be retroactively granted. In order to file a petition, the prosecuting attorney that handled the original case must consent to the filing of the petition.

Lastly, the court will hold a hearing to determine whether to grant the petition. At the hearing, the judge will consider evidence introduced by the petitioner, evidence introduced by the prosecutor, and other relevant evidence. After all the evidence has been presented:

[t]he 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[2] that the defendant was eligible for sentencing under the terms of this article at the time he or she was originally sentenced or that he or she qualifies for sentencing under paragraph (2) of subsection (a) of this Code section and the ends of justice and the welfare of society are served by granting such petition.

O.C.G.A. § 42-8-66(d) (emphasis added). Typically, petitioners have character witnesses testify at the hearing to demonstrate to the judge the petitioner is an upstanding member of society. The judge also considers whether the individual has been arrested or convicted of any offenses since the time of their first conviction. Subsequent arrests or convictions are disfavored by the judge and are likely to decrease the probability the petition will be granted.

If the petition is granted, “[t]he court shall send a copy of any order issued pursuant to this Code section to the petitioner, the prosecuting attorney, the Georgia Crime Information Center, and the Department of Driver Services. The Georgia Crime Information Center and the Department of Driver Services shall modify their records accordingly.” Once granted, this procedure allows for the prior conviction to be retroactively discharged without an adjudication of guilt and sealed from a person’s criminal history for most employment purposes.[3]

Every case is different. If you or someone you know may benefit from this type of sentencing modification, contact our office today. We have extensive experience in this process and have successfully handled cases of this nature. We will be able to assist you in investigating your eligibility, navigating the complicated legal process, and fighting for the Georgia First Offender Act to be retroactively applied to your conviction.

 

[1] For example, if you were sentenced to serve three years on probation under the First Offender Act, and you successfully completed two years and 364 days of probation but committed a new crime on the last day of your probation, the judge could re-sentence you to three years probation.

[2] Preponderance of the evidence simply means, ‘more likely than not.’ (Mathematically similar to 51%)

[3] Keep in mind lawyers, law enforcement, judges, police, and certain third party vendors and employers will be able to see the charge. Furthermore, although the law clearly prohibits employers from using a discharge under the First Offenders Act to disqualify a person for employment (under O.C.G.A. § 42-8-63.1), Georgia is an employment-at-will state, so employers may choose not to hire or appoint any person at any time for any reason, or no reason at all, subject, of course, to constitutional requirements.  O.C.G.A. § 42-8-63.

Privacy Rights- Carpenter vs. United States

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by John Lovell

Last month, the United States Supreme Court ruled in favor of the privacy rights of individuals. The Government, without a warrant or a showing of probable cause, issued an order to a cell phone company to provide Timothy Carpenter’s cell site data. The Government sought to gather the extensive records, including the location of Carpenter’s phones. The Supreme Court, in a 5-4 decision, found that Mr. Carpenter had a privacy right in his phone records. For the Government to seize these records, the Government needed to present to a magistrate a warrant based on sworn testimony establishing probable cause. The Court noted that a significant factor causing the War for Independence was Britain’s use of warrantless searches … Americans have never been fond of warrantless searches!

Do not be quick to conclude that this ruling makes it necessary for the police to obtain a warrant for all types of stored records. Your privacy could still be affected. Previously, the Court has held that a warrant is not necessary to obtain records of the numbers called by a cell phone-not the content of the calls but just the fact that the “target” phone called particular numbers at particular times. The Court has also held that other stored records such as bank records may be obtained without a warrant. A couple of years ago, the Court ruled that a warrant is required to place a GPS tracking device on a vehicle. The critical distinction that the Court has made is in information that reveals the location of the subject. We have a greater expectation of privacy in where we are than is more typical records such as numbers called and even bank records. Protect your privacy rights today and call Peachstate Lawyer for your FREE consultation!

Search Warrants and Social Media in Georgia Criminal Cases

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by Mary Agramonte

Social media has become, for many of us, a central part of our lives. We use Facebook to share and view photos of friends and family, and even to catch up on daily news. We use Snapchat to send live photos or short clips and videos to those in our circle. Instagram exists to view photos of friends and strangers, and even to gain inspiration for food, travel, and lifestyle.

These social networking sites are used and enjoyed by people in all walks of life. Consequently, as the use by the general population increases, so does use for those engaged in drug dealing, gang activity, and other criminal acts. For this reason, social media and apps once thought to be private are becoming the key pieces of evidence as law enforcement is obtaining this information through search warrants. Search warrant allow police to conduct searches of people and their belongings for evidence of a crime and they are now being used to gain entry into your Facebook, Snapchat, and other sites.

Snapchat has recently come out to say that 350 million Snaps are sent every single day. Before these fleeting photos are opened, they exist on Snapchat’s server awaiting for the person on the other end to open it.  Some unopened Snaps, they’ve admitted, have been handed over to law enforcement through search warrants.

Facebook is no different and law enforcement is using the site regularly to investigate crimes. While a law enforcement agency is free to look at your public site, they are even able to obtain a search warrant even for the private aspects of your account. A recent case in the 11th Circuit, United States v. Blake, involved search warrants for email and Facebook accounts.  Law enforcement in Blake sought essentially every piece of data on the person’s Facebook account. The court stated that the search warrants were overly broad and stated they must still be specific and limited in scope. The data was still fair evidence despite this, as the officers relied on the good faith exception to the exclusionary rule, and the State was allowed to use the evidence from their Facebook account against them.

There tends to be a false sense of privacy for those engaged in sending Snaps, Facebooking, or Instagramming. These ‘private’ sites and photos can and do become to subject of search warrants in law enforcement investigations, and the biggest piece of evidence in a case might just end up being something you posted  or sent with the belief it would remain private.

Georgia DUI – License Hearing and Ignition Interlock Device

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Do I fight for a license hearing or choose an Ignition Interlock Device? This is a tough question but one that must be answered within thirty days of your arrest. The Ignition Interlock device is a decent option for those individuals charged with a DUI-Refusal where they are facing a hard one-year suspension if they lose the administrative license hearing. The license hearing is the only recommended route for a DUI-Per Se case where you ultimately submitted to a chemical test of your blood, breath, or urine. This recommendation is based on the fact that you are eligible for a limited driving permit even if you lose the hearing. Installing the Ignition Interlock in this situation will just add unnecessary burden and expense. Still, many times we will advise you to submit a request for an administrative hearing even if you are facing the one-year hard suspension , but that decision is based on your personal needs and the facts of your case.

If you wish to file an appeal and request an administrative hearing, then the formal request must be mailed off within thirty days from the date of your arrest. Those are not thirty business days and that is a strict deadline so you must mail your request the Friday before the deadline if it falls on a weekend.

If you wish to go the Ignition Interlock route, then you must first install the Ignition Interlock device at a certified provider. With the Ignition Interlock installed, you must then go to your local DDS branch to show proof of installation and file a waiver of the administrative hearing.

Making this decision isn’t easy, but it’s often the first step of the DUI process. For an in-depth evaluation of all your options, call us today for a free consultation at 404-581-0999.

Public Indecency Crimes in Georgia

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by Mike Jacobs

Public Indecency is a serious crime in Georgia. It is imperative that you retain a qualified attorney immediately if you have been charged with public indecency.

O.C.G.A. § 16-6-8(a) defines public indecency as follows:

A person commits the offense of public indecency when he or she performs any of the following acts in a public place:

  1. An act of sexual intercourse
  2. A lewd exposure of the sexual organs
  3. A lewd exposure in a state of partial or complete nudity; or
  4. A lewd caress or indecent fondling of the body of another person.

A public place means any place where the conduct involved may be reasonably be expected to be viewed by people other than members of the accused’s family or household.

Under O.C.G.A. 16-1-3(15), a public place is any place where the conduct involved may reasonably be expected to be viewed by someone other than immediately family members. In fact, the residence of the accused may be considered a public place if the person performs the lewd act in front of a window or someplace where he intends the public to see it.

Lewd has been defined as any gross indecency so notorious as to tend to corrupt community morals. The act is one in which it represents a moving away from some form of community morality norms towards amorality, immorality or obscenity which in the final analysis within community standards as to particular acts, as to acceptability or unacceptability, is best left to a jury for determination. The statute does not require that some person be embarrassed, offended or otherwise outraged by the lewd act.

The intent of the accused is relevant in a prosecution for public indecency.

The offense of public indecency is not a crime against the person. The person viewing the lewd act is a witness and not a victim of the crime.

The United States Supreme Court has held that the First Amendment’s guarantee of freedom of expression does not prevent the State of Georgia from enforcing its public indecency laws.

The punishment for public indecency is up to 1 year in prison. If it is a 3rd or subsequent violation, then the punishment is 1 to 5 years imprisonment. Also, the accused may be required to register as a sex offender under O.C.G.A. §42-1-12.

It is imperative that you do not talk to the police if you are accused of public indecency. Only speak to a qualified attorney so that you can properly defend yourself.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Statutory Rape Crimes in Georgia

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by Mike Jacobs

Statutory Rape is a serious crime in Georgia. O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your  spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Georgia can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in Georgia for Statutory Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Sex Offenses. You must protect your rights and take this matter very seriously.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Bestiality and Necrophilia Crimes in Georgia

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by Mike Jacobs

 

Bestiality is a serious crime in the State of Georgia.

O.C.G.A. § 16-6-6:  A person commits the offense of bestiality when he performs or submits to any sexual act with an animal involving the sex organs of the one and the mouth, anus, penis or vagina of the other.

A person convicted of bestiality shall be punished by imprisonment not less than 1 nor more than 5 years.

Necrophilia is a serious crime in Georgia.

O.C.G.A. § 16-6-7: A person commits the offense of necrophilia when he performs any sexual act with a dead human body involving the sex organs of the one and the mouth, anus, penis or vagina of the other.

A person convicted of necrophilia is punishable by imprisonment for not less than 1 nor more than 10 years.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Georgia’s New Distracted Driving Law for Georgia Drivers

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by Mary Agramonte

 

As you have probably heard, Georgia’s new law on Distracted Driving will become effective on July 1, 2018. Georgia’s legislature has made the use of a cell phone will driving illegal in response to an alarming rise of traffic fatalities and serious injuries from car accidents.

The new law will prohibit Georgia drivers from the following:

  • Holding a cell phone at all
  • Texting, reading/ sending emails, using internet
  • Watching or recording videos

The following use of electronic devices will still be allowed even under the new law:

  • Speaking/texting with voice based communication
  • Using an earpiece or Bluetooth to talk on the phone
  • Using a navigation or GPS app

The punishment under this new law will be fines, fees, and points. Specifically, for a first conviction in 24 months, you will face a fine of $50.00 which will not include any surcharges and taxes. A second conviction will increase to $100.00 plus court costs and surcharges.

While the cost is fairly slight for a traffic offense, there will be other repercussions of the law. If an officer sees you on the phone, he now has the ability to pull your vehicle over which in some cases could lead to more serious charges. For example, an officer who has lawfully pulled you over for using your phone can then observe an odor of alcohol coming from your vehicle which can then lead to a DUI arrest.

Overall, this bill is being enacted to save lives as talking and texting on a cell phone while driving places other drivers and pedestrians at risk. According to the Governors Highway Safety Association, Georgia will now join the other 47 states that have already enacted laws prohibited texting and driving.

Atlanta Hit and Run Attorneys

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by Mary Agramonte

Whenever you are in a car accident involving either property damage or personal injury, Georgia law provides that a driver is required to do the following things:

  • Give your name, address, and registration of the vehicle
  • Upon request, provide a driver’s license
  • Render reasonable aid to injured parties – such as transporting or making arrangements to transport a person to medical treatment if its apparent medical treatment is needed
  • Where person is unconscious, appears deceased, or is otherwise unable to communicate, you must make reasonable effort to ensure emergency medical service and police are contacted.

Under Georgia law, a driver involved in an accident must remain on scene until all four requirements are met. If a driver neglects one or more of the requirements, they can later be arrested and charged with the crime of Hit and Run.

Hit and Run under O.C.G.A. § 40-6-270 is one of the most serious traffic crimes to face. The Department of Driver Services classifies it as a “Major” violation which is in the same category of DUI, Vehicular Homicide, and Fleeing. Hit and Run can not only land you with probation and high fines, it will suspend your license, and can result in you facing jail time.

There are defenses to Hit and Run and ways to negotiate the case to significantly less serious offenses that will not result in jail or a suspended license. With experienced Georgia Hit and Run attorneys on your side, you can fight the case and keep your freedom and driving privileges. If you or someone you know has been involved in a Hit and Run, it is important to retain Hit and Run attorneys quickly. In some cases, an accomplished Hit and Run attorney can be proactive in negotiating lesser charges even before a surrender process. Call us today at 404-581-0999 for a FREE CONSULTATION with one of our knowledgeable Georgia Hit and Run attorneys.

How Cell Phone Records Can Create an Alibi Defense in Georgia Criminal Cases

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by Scott Smith

An alibi is a claim that you were not on the scene when the crime was committed. Alibi is a powerful defense in Georgia.  It is a statement to the jury you were not present when the crime was committed and therefore you cannot be found guilty. Although there are some exceptions, presence of the defendant at the scene is an essential element of the crime.

For the most part, in order to use an alibi defense at trial in Georgia, the defense must serve the prosecutor with an alibi notice upon the prosecuting attorney.  An alibi notice is a written notice of the Client’s intention to offer a defense of alibi. Such notice by the defense attorney shall state the specific place or places at which the client was (i.e. in Tuscaloosa, Alabama) at the time of the alleged offense (i.e. January 5th, 2018) and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the client, upon whom the client intends to rely to establish such alibi.  However, if it is the defendant himself who is going to give the alibi defense the defendant is not required to furnish the State’s prosecutor with his version of events or expected testimony.

Alibi is very powerful because the jury must acquit if they cannot put you on the scene.  However, it will be sufficient if the State can show you were near the scene of the crime.  In order to really give potency to your alibi, it is incredibly helpful to show your cell phone (which we all carry around with us all the time) was nowhere near the scene, but in the area you claim to be.  In order to this, you will need to subpoena your cell phone records.

The reason cell phone records are important is that cell phones connect to cell phone antennas to pass data through radio signals.  Your cell phone company records the communication with the cell phone antenna.  Specifically, the phone records include:

  1. Identification of the antenna(s) with which a cell device connects (this includes on newer phones when you are roaming and not actively on a phone call);
  2. The azimuth of the antenna (the direction in which the antenna is pointed) with which the cell device is communicating; and
  3. The time in which the connection was initiated and terminated.

By using this information, the attorney is able to get a general idea of where the cell phone is located.  If you have three cell phone antennas pinging at the same time you can potentially triangulate the location.

Subpoenas for phone records should only be issued by an attorney and they can only be issued if and when there is an established case number and court date.

Here is an excerpt from a March 2018 criminal case (Douglas v. State) in the Supreme Court of Georgia: “The jury also received cell-phone records indicating that, at the time of the shooting, a cell phone belonging to Appellant’s mother was within two miles of the scene; likewise, the jury heard testimony that Appellant was known to sometimes use his mother’s cell phone and to travel in the Ford Taurus with her.”  As you can imagine this testimony and exhibits are powerful evidence.

If you have questions about using cell phone records in Georgia call us today for a free consultation, 404-581-0999.